Civil Procedure With The 2019 Amendments

REVIEWER IN CIVIL
PROCEDURE
FROM THE LECTURES OF JUDGE GENER GITO AND BAR
MATERIALS
By: Adjceline L. Amilhamja

Faculty of Civil Law- University of Santo Tomas
2A (2020-2021)
Disclaimer: Errors/mistakes are solely due to the

maker of this reviewer. Please use with due diligence
and caution.
RULES ON CIVIL PROCEDURE WITH THE 2019 AMENDMENTS
1. Major divisions in law: ◦ Integrated bar

a) Substantive law – a part of law which creates, ◦ Legal assistance to under privileged
defines or regulates rights concerning life, liberty or
property, or the powers of agencies or Q: Can these powers be shared to other branches?
instrumentalities for the administration of public A: No. It is exclusive
affairs. (Primicias vs. Ocampo 49 OG 2230)
-Congress source of S.L. Q: Can Congress amend ROC?
A: No. It is a violation of Separation of powers.
b) Procedural/Adjective/Remedial Law – prescribes the
method of enforcing rights or obtaining redress for -The rule making power of SC is exclusive. It is not shared with
their violation. (Bustos v. Lucero 81 Phil. 640,650) Congress, more so with the executive (Echegaray vs. Secretary of
-Mainly, SC is the source of P.L but may be Congree Justice, 301 SCRA 96,112).
through law (i.e. law on jurisdiction)
-SC has the power to amend and suspend rules (Neypes vs. CA,
2. Sources of Remedial law:
469 SCRA 633, 643-644).
a) The Constitution
b) Laws creating the judiciary
c) Laws defining and allocating jurisdiction to different -Estipona vs. Lobrigo, GR 226679, August 15, 2017 –
courts constitutionality of Section 23, RA 9165 on plea bargaining. (Plea
d) Rules promulgated by the SC Bargain is procedural, Congress cannot encroach on the rule
e) circulars, administrative orders, internal rules and making power of the Supreme Court).
SC decisions
Estipona V. Lobrigo is a doctrinal case. In this case,
the law was declared unconstitutional by SC.
3. Scope of Remedial Law:
a) Constitution
b) Civil Procedure (Rules 1 to 56 and other related Limitations of the Rule making power
laws); -The rules shall provide a simplified and inexpensive procedure for
c) Provisional Remedies (Rules 57 to 61); the speedy disposition of cases.
d) Special Civil Actions (Rules 62 to 71) -The rules shall be uniform for all courts of the same grade;
e) Special Proceedings (Rules 72 to 109)
-The rules shall not diminish, increase, or modify substantive
f) Criminal Procedure (Rules 110 to 127)
rights
g) Evidence (Rules 128 to 133)
h) Katarungang Pambarangay Law (RA 7160) and (Section 5(5),Article VIII)
Implementing rules -SC cannot; inherent limitation; what if it is not written in the
i) Revised Rules on Summary Procedure. constitution? – still a violation of principle of separation of
j) Rules on Small Claims Case powers.
k) Rules on Environmental Cases
Basic concepts in Remedial Law
JUDICIAL POWER includes the duty of the courts of justice to 1.) Court
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
There is a table, a gavel, there is someone sitting there. Then below,
not there has been a grave abuse of discretion amounting to
there are lawyers sitting down. But actually, what is described is a
lack or excess of jurisdiction on the part of any branch or
courtroom and not a court.
instrumentality of the Government. (Sec. 1, Art. VIII, 1987
Constitution)
Similarly, when you are asked to describe a corporation, you will refer
to the building, the office, the employees etc. But a corporation, as you
The power of judicial review is the Supreme Court's power to
know in Persons, is a juridical entity. It is a creature of the law. It is a
declare a law, treaty, international or executive agreement,
person under the law but it has no physical existence.
presidential decree, proclamation, order, instruction,
ordinance or regulation unconstitutional. A court has no physical existence, only a legal one.
Rule-making powers of the Supreme Court Q: What is a court?

Section 5 paragraph(5), Article VIII. ( Code: 4P ALI)
— Subjects of the Rule-making power of SC A: A court is an entity or body vested with a portion of the judicial
◦ Protection and enforcement of the constitutional rights power. (Lontok vs. Battung, 63 Phil. 1054)
◦ Pleading
◦ Practice Q: Why ‘portion’ only?
A: This is because the Constitution provides that “the judicial power
◦ Procedure in all courts
shall be vested in one Supreme Court (SC) and in such other lower
◦ Admission to practice of law
courts as may be established by law.” (Art. VIII, Section 1, 1987
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Constitution. SUPREME COURT
The reason that the law creates different courts is to divide the
cases or judicial power among them so that one court may not be
burdened with so many cases. COURT OF APPEALS
So, judicial power is not exercised only by one court, but by

several courts.
REGIONAL TRIAL COURTS
There is a division of labor and this division is done thru

delineating jurisdiction among courts. Jurisdiction will be
discussed in the following parts. MetTC MTCC MTC MCTC
2.) Judge Note:

Just as corporations cannot act without its officers, a court cannot MetTC- In Manila
function without a judge. But do not say that the court and the MTCC- cities outside Manila e.g. Cebu, Davao
judge mean the same thing. The judge is the person or officer who MTC- municipalities such as Minglanilla, Argao
MCTC- circuitized areas because it is impractical and expensive to
presides over a court.
maintain one MTC in every municipality.
Q: Distinguish court from judge.
A: The following are the distinctions: b.) Special courts
1.) Court is the entity, body, or tribunal vested with a There are also Special Courts which are also considered part of the
portion of the judicial power, while judge is the judiciary. These are:
person or officer who presides over a court.
1. Court of Tax Appeals (RA 1125)
2.) Judges are human beings – they die, they resign,
2. Sandiganbayan (PD 1486 as amended)
they retire, they maybe removed. The court
3. Sharia District Courts and the Sharia Circuit
continues to exist even after the judge presiding
Courts (PD 1083 , also known as the Code of
over it ceases to do so. In the Supreme Court, for
Muslim Personal Law);
example, the justices presiding over it are not the
4. Family Courts
same justices who presided it in the early part of
this century yet the Court in some decisions states
that “as early 1905, ‘WE’ have already ruled such
Policy of Judicial Hierarchy
assuch…” Why do they use ‘WE’? They are talking
This policy means that a higher court will not entertain direct resort
about the court, they are not talking about
to it unless the redress desired cannot be obtained in the
themselves. The court is continuous. It does not
appropriate courts.
die alongside with the justices who presided on it.
3.) The two concepts may exist independently of each
While it is true for example that the Supreme Court, Court of Appeals
other, for there may be a court without a judge or a
and the Regional Trial Courts have concurrent original jurisdiction to
judge without a court. (Pamintuan vs. Llorente, 29
issue writs of Certiorari, Prohibition, Mandamus, such concurrence
Phil. 342)
does not accord litigants unrestrained freedom of choice of the court
to which the application for the writ may be directed. The application
3.) Hearing and Trial
should be filed with the court of lower level unless the importance
Hearing is not synonymous with trial. The words “hearing” and
of the issue involved deserves the action of the court of the higher
“trial” have different meanings and connotations. level.
Trial may refer to the reception of evidence and other processes. It
embraces the period for the introduction of evidence by both 4.) Classification of courts in general.
parties. A: Generally, courts may be classified as:
Hearing, as known in law, is not confined to trial but embraces the 1. Constitutional and Statutory Courts;
several stages of litigation, including the pre-trial stage. A hearing 2. Superior Courts and First-Level courts (inferior courts);
3. Courts of Original jurisdiction and Courts of Appellate
does not necessarily mean presentation of evidence. It does not
jurisdiction;
necessarily imply the presentation of oral or documentary evidence 4. Civil Courts and Criminal Courts;
in open court but that the parties are afforded the opportunity to be 5. Courts of law and Courts of equity;
heard. (Republic v. Sandiganbayan, 416 SCRA 133) 6. Courts of record; probate Courts; Land Registration
Courts; Ecclesiastical Courts; Military Courts
HIERARCHY OF THE COURTS
In the 1996 BAR: One of the questions in Remedial Law was: State CONSTITUTIONAL COURTS vs. STATUTORY COURTS
the hierarchy of the Courts in the Philippines. Q: Distinguish Constitutional Courts from Statutory Courts.
A: CONSTITUTIONAL COURTS are created directly by the
a.) Regular courts Constitution itself, while STATUTORY COURTS are created by law or
by the legislature. The first cannot be abolished by Congress without
amending the Constitution while the second can be so abolished by
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just simply repealing the law which created them. cause at its inception, try it and pass judgment upon the law and the
facts.
In our country, there is only one Constitutional court – the
Supreme Court. Even the Sandiganbayan is not considered a APPELLATE COURTS – means the authority of a court higher in rank to
Constitutional court because it was not created by the re-examine the final order or judgment of a lower court which tried the
Constitution directly. The 1973 Constitution, particularly Art. XIII, case; are those where a case is reviewed. (Ballentine's Law Dict., 2nd
Section 5 ordered the then National Assembly to create a special Ed., p. 91)
court to be known as the Sandiganbayan which shall have
jurisdiction over criminal and civil cases involving graft and So, if you are filing a case for the first time, that case is filed in an
corrupt practices and such other offenses committed by public original court. But the case does not necessarily end there. You
officers and employees, including those in government-owned or may bring the case to the appellate court which has the power to
controlled corporations in relation to their office as may be change the decision of the original court.
determined by law.. It was law that created the Sandiganbayan
(PD 1486). Q: Is the SC an original or appellate court?
A: The SC is both an original and an appellate court. The SC has
The CA, RTC, and the MTC are created by the Congress. original jurisdiction on cases of certiorari, prohibition, mandamus,
So there is only one Constitutional court. All the rest, from the CA etc. There are certain cases where one may file directly to the SC.
down and all other special courts, are only creatures of Congress.
Q: Is the CA an original or appellate court?
In political law, the power to create carries with it the power to A: The same is true with the CA. It is both original and appellate
abolish. That is why, BP 129 abolished all existing courts at that time court. (Section 9, BP 129) When we study the jurisdiction of the CA,
(CFI, CA, Juvenile and Domestic courts, etc.) and RTC, IAC, MTC were you will see that it is both an original and an appellate court. There
created. That was the judicial reorganization of 1980 under BP 129.
are cases which are elevated to it from the RTC, but there are also
But there is only one court which the Batasan Pambansa could not
touch – the Supreme Court. cases which are filed there for the first time like an action for
annulment of an RTC judgment.
SUPERIOR COURTS vs. FIRST-LEVEL COURTS
Q: How about the RTC? Is the RTC an original or appellate court?
Q: Distinguish superior courts from inferior courts.
A: The RTC is also both original and appellate court. You can file
A: SUPERIOR COURTS, otherwise known as courts of general
certain cases there for the first time, and there are also decisions of
jurisdiction, are those which take cognizance of all kinds cases,
whether civil or criminal, and possess supervisory authority over the MTC which are appealable to the RTC.
lower courts. The refer to these courts which have the power of
review or supervision over another lower court. Q: How about the MTC? Is the MTC an original or appellate court?
A: The MTC however, is a 100% original court. It is the lowest court
INFERIOR COURTS, otherwise known as courts of special or limited in the hierarchy. There are no cases appealed to it. There is no such
jurisdiction, are those which take cognizance of certain specified animal as barangay court. The barangay captains do not decide
cases only. (14 Am. Jur. 249) They are those which, in relation to cases, they only conciliate.
another are lower in rank and subject to review and supervision of
the latter.
COURTS OF LAW vs. COURTS OF EQUITY
Q: What courts are superior or inferior? Q: Distinguish Courts of Law from Courts of Equity.
A: It DEPENDS from what viewpoint you are looking at it. If you are
A: COURTS OF LAW are tribunals administering only the law of the land,
looking from the viewpoint of the Constitution, there is only one
superior court – the Supreme Court. whereas COURTS OF EQUITY are tribunals which rule according to the
precepts of equity or justice, and are sometimes called “courts of
From the viewpoint of other laws, the Court of Appeals (CA) maybe conscience.” (Ballentine’s Law Dict., 2nd Ed., p. 303)
inferior to the SC but it is a superior court for it exercises supervision
over RTC. In the same manner that the RTC might be inferior to the Courts Of Law dispose cases according to what the promulgated law
SC and the CA but it has also power of supervision over MTC. The says while Courts Of Equity adjudicate cases based on the principles of
jurisdiction of the RTC is varied. It is practically a jack of all trade. The equity. Principle of equity means principles of justice, fairness, fair play
RTC has also the power of supervision over MTC.
or of what is right and just without inquiring into the terms of the
A superior court may therefore handle civil, criminal cases while an statutes.
inferior court may try specified cases only. The SC, CA including the
RTC are considered as superior courts. Q: Are the Philippine courts, courts of law? Or courts of equity? Do
they decide cases based on what the law says or based on the
The MTC is a first-level (inferior) court so that its power is limited to principle of justice and fairness?
specified cases despite of the law which expanded the jurisdiction of A: In the Philippines, our courts, original or appellate, are both courts
the MTC. It does not have any supervisory authority over any lower
of law and of equity. (U.S. vs. Tamparong 31 Phil. 321)
court.
In the case of substantive law, there is a thin line which divides the
ORIGINAL COURT vs. APPELLATE COURT
principle of law from the principle of equity because principles of equity
Q: Distinguish original court from appellate court. are also found in the principles of law. Equity is what is fair and what is
A: ORIGINAL COURTS- means jurisdiction to take cognizance of a
just and equitable. Generally, what is legal is fair.
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presence;
As a matter of fact under the Civil Code, when the law is silent, you (B) to enforce order in proceedings before it, or before
decide it based on what is just and fair, thus, the saying EQUITY a person or persons empowered to conduct a judicial
FOLLOWS THE LAW. In the Philippines you cannot distinguish investigation under its authority;
sometimes the principle of law and the principle of equity because (C)to compel obedience to its judgments orders, and
principles of equity are also written in the law. processes, and to the lawful orders of a judge out of
Example: The principles of estoppel, laches or solutio indebiti court, in a case therein;
are no longer purely principles of equity since they are also found in (D) to control, in furtherance of justice, the conduct of
our law. Under the Civil Code, when there is no applicable law, courts its ministerial officers, and of all other persons in any
still have to decide according to customs and general principles. manner connected with a case before it, in every
• ESTOPPEL manner appertaining thereto;
Estoppel is an equitable doctrine which means that it is not fair that (E) to compel the attendance of persons to testify in a
you disown your own representation after misleading somebody. case pending therein;
But if you look at the Civil Code, there is a chapter on estoppel. So (F) to administer or cause to be administered oaths in a
if you apply estoppel, you cannot say that you are applying a case pending therein, and in allother cases where it may
principle not found under the law. be necessary in the existence of its powers;
• LACHES (G) to amend and control its process and orders so as to
It is considered to be the half-brother of prescription because it make them conformable to law and justice;
means if you delay a certain right then you must have no right. That (H) to authorize a copy of a lost or destroyed pleading or
is more of equity, rather than of law. other paper to be filed and used instead of the original, and
• SOLUTIO INDEBITI to restore, and supply deficiencies in its records and
No one should enrich himself at the expense of another. That is a
proceedings.
principle of equity. But if you look at the Civil Code, it's there!
ALONZO vs. IAC - May 28, 1987 ENFORCEABILITY OF COURT WRITS AND PROCESSES
HELD: “The question is sometimes asked, in serious inquiry or in
Another provision that should be emphasized is Section 3 of the Interim
curious conjecture, whether we are a court of law or a court of
Rules.
justice. Do we apply the law even if it is unjust or do we administer
justice even against the law? Thus queried, we do not equivocate.
Question: The court of Cebu issues a writ or a process. Can that writ or
The answer is that we do neither because we are a court both of
process be enforced in Manila? What is the extent of the enforceability
law and of justice. We apply the law with justice for that is our
of a writ issued by a court?
mission and purpose in the scheme of our Republic.”
Under Section 3, Interim Rules:
COURTS OF RECORD Sec. 3. Writs and Processes. -
Those whose proceedings are enrolled and which are bound to a) Writs of certiorari, prohibition, mandamus,
keep a written record of all trials and proceedings handled by quo warranto, habeas corpus and injunction
them. RA 6031 mandates all MTCs to be courts of record. issued by a regional trial court may be
enforced in any part of the region.
PROBATE COURTS
b) All other processes whether issued by the
Those which have jurisdiction over settlement of estate of
RTC or MetTC, MCTC, and MTC may be served
deceased persons. anywhere in the Philippines, and, the last
three cases, without a certification by the
LAND REGISTRATION COURTS judge of the RTC.
Those which have jurisdiction over registration of real properties
under the Torrens System. A: Under Section 3 of the Interim Rules, you have to distinguish what
kind of writ or process you are talking about:
INHERENT POWERS OF THE COURT a) If it is a writ of certiorari, prohibition, mandamus, quo
warranto, habeas corpus, injunction, it can be enforced
Before we leave the concepts of courts, we must know that the anywhere within the region. So at least, RTC can enforce
courts of justice have what we call inherent powers. Just like the it within the region and it cannot enforce those writs
State have certain inherent powers, namely; Police power, power outside the region.
of taxation, and power of eminent domain.
EXAMPLE: If you are illegally detained, you can ask the court to issue
Their very existence automatically necessitates the existence of a writ of habeas corpus. Now, a person is detained in Cagayan de Oro
these powers. and the family is in Cebu City. They filed a petition for habeas corpus
here in Cebu City. Is it proper?
Q: What are the inherent powers of the court? A: No. Cebu City belongs to the 7th Judicial Region while Cagayan de
A: Section 5 Rule 135 of the Rules of Court provides: Oro is in the 11th or 12th Judicial Region. The law is very clear: writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus
Section 5. Inherent powers of courts. Every court and injunction issued by a trial court may be enforced in any part of
shall have the power: the region.
(A) to preserve and enforce order in its immediate
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b) Section 3 further says, all other writs are enforceable 83, September 23, 2015; Barangay Mayamot vs.Antipolo City, GR No.
anywhere in the Philippines. Suppose the MTC issues a 187349,August 17, 2016).
warrant for the arrest of the accused in the criminal -Jurisdiction of the court includes the authority to execute its
case, and he fled to Baguio City, such warrant can be decision. It includes the power of the court to control the execution of
enforced there. This includes summons, writs of its decision (Echegaray vs. Secretary of Justice, 301 SCRA 96, 108).
execution or search warrants.
The word JURISDICTION is derived from 2 Latin words: 1.) JURIS –
ASPECTS OF REMEDIAL LAW law; 2.) DICO – to speak, or to say. So, in effect, when you say
Q: Give the two (2) aspects of Remedial Law jurisdiction, literally translated, it means, “I speak by the law.” It
A: There are 2 aspects of Remedial Law: means that you are saying “I speak with authority” because when
1.) PUBLIC ASPECT – one which affords a remedy in you invoke the law, then your act is authorized.
favor of the State against the individual (e.g. criminal
procedure) or in favor ofthe individual against the State So when you say, “I speak by the law” you mean I will do it in the
(e.g. habeas corpus) on the other hand, name of the law. It connotes authority or power.So jurisdiction
implies authority or power to act. But what act or acts is/are
2.) PRIVATE ASPECT – one which affords a remedy in authorized?
favor of an individual against another individual, like
the rules on civil procedure. (Gamboa’s Introduction
If we relate jurisdiction to courts, it means authority or the power to
to Philippine Law, 6th Ed., pp. 97-99)
hear, try and decide a case. So, jurisdiction means the power or
authority of the court to hear, try and decide a case. In its complete
A more in-depth discussion:
RULE-MAKING POWER OF THE SUPREME COURT aspect, jurisdiction includes not only the powers to hear and decide
a case, but also the power to enforce the judgment (14Am. Jur. 363-
The Rules of Court (1940, 1964, 1997) have all been enacted by the
364) as the judgment or decree is the end for which jurisdiction is
SC. It is law, not enacted by Congress but enacted by the SC.
exercised, and it is only through the judgment and its execution that
Q: What is the authority of the SC to enact a law when actually the power of the court is made efficacious and its jurisdiction
complete (21 CJS, Courts, S 9). The power to control the execution
the role of the judiciary is only to interpret the law? Is this not a
of its decision is an essential aspect of jurisdiction. It cannot be the
violation of the separation of powers?
subject of substantial subtraction and the most important part of
A: The authority of the SC in enacting the prior rules and the present
the litigation is the process of execution of decisions (Echegaray vs.
rules is what you call its rule-making power which provision was
Sec. of Justice, 301 SCRA96).
found in the 1935, 1973 and 1987 Constitutions. Based on the
present law, the rule-making power of the SC is expressed in Article
VIII, Section 5, paragraph [5] which is substantially the same as the Test of Jurisdiction
1935 and 1973 Constitutions which states that: the SC "shall Since jurisdiction refers to power or authority to hear, try and decide a
promulgate the rules concerning the protection and enforcement case, it cannot depend on the correctness or rightfulness of the
of constitutional rights, pleading, practice, and procedure in all decision made. (Century Insurance Co. v. Fuentes, 2 SCRA 1168 [1961])
courts.” Correctness or rightfulness of the decision relates to the exercise of and
not to the authority itself.
LIMITATIONS TO THE RULE-MAKING POWER OF THE SC
The Constitution has also placed limitations on these powers. As The test of jurisdiction is whether the court has the power to enter
currently worded, one limitation provided for by the Article is “the into the inquiry and not whether the decision is right or wrong.
rules of procedure to be enacted by the SC "shall provide for a (Herrera vs. Barreto, 25 Phil. 245)
simplified and inexpensive procedure for the speedy disposition
of cases.” The second one is: “the rules shall be uniform for all Duty of the court to determine its jurisdiction
courts of the same grade.” And the third is: “the rules shall not It is the duty of the court to consider the question of jurisdiction before
diminish, increase or modify substantive rights.” it looks at other matters involved in the case. It may, and must, do this
on its own motion without waiting for the question of jurisdiction being
LIMITATIONS
raised by any of the parties involved in the proceeding (20 Am Jur 2d,
1. The Rules of Court shall provide a simplified and
inexpensive procedure for the speedy Courts, S 92). Courts are bound to take notice of the limits of their
disposition of cases; authority and they may act accordingly by dismissing the action even
2. The Rules of Court shall be uniform for all courts though the issue of jurisdiction is not raised or not even suggested by
of the same grade; and counsel (Ace Publicatiions vs. Commissioner of Customs, 11 SCRA 147)
3. The Rules of Court shall not diminish, modify or
increase substantive rights. Q: What is the effect if the court has no jurisdiction or of absence or
lack of jurisdiction?
Substantive rights are created by substantive law so the Rules of
A: If a court has no jurisdiction, it has no power or authority to try a case
Procedure should not increase, diminish or modify them. In effect,
and because it has no authority it must not exercise it. Exercise of
the Rules of Court should not amend the substantive law. It can
absent authority or power is necessarily nothing. Thus, without
only interpret substantive law but should not change it
jurisdiction, the entire proceedings would be null and void.
completely. Those are the limitations.
The only recourse for the court, absent jurisdiction, is to dismiss the
JURISDICTION IN GENERAL
case motu proprio or on motion for without authority it cannot act.
-It is the power and authority of the court to hear, try, and decide
the case (Continental Micronesia, Inc., vs. Basco, GR Nos. 178382- Q: What about if it has jurisdiction?
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A: It is the duty of the court to exercise the jurisdiction conferred the decision or order on all other questions arising in the case is but
upon it by law and to render a decision in a case properly submitted an exercise of jurisdiction; Errors which the court may commit in the
to it. Failure to do so may be enforced by way of a mandamus exercise of such jurisdiction, like errors of procedure or mistakes in
proceeding (20 Am Jur. 2d, S 93). the court's findings, are merely ERRORS OF JUDGMENT; whereas,
Constitutional Guarantee of Access to Courts and Jurisdiction When a court takes cognizance of a case over the subject matter of
The Constitutional guarantee of access to courts refers to courts which it has no jurisdiction, or acts in excess of jurisdiction or with
with appropriate jurisdiction as defined by law. It does not mean grave abuse of discretion amounting to lack of jurisdiction, the court
that a person can go to any court for redress of grievances regardless commits an ERROR OF JURISDICTION. (GSIS vs. Oliza 304 SCRA 421).
of the nature or value of his claim. (Santos III v. Northwest Airlines,
210 SCRA 256 [1992]) 2.) When the court acts without authority (error of jurisdiction) such
act would be null and void or at least voidable, but if the court has
JURISDICTION vs. EXERCISE OF JURISDICTION authority but commits a mistake in the exercise of such authority
(error of judgment) such mistake will bind unless corrected
Q: Distinguish jurisdiction from exercise of jurisdiction.
3.) ERRORS OF JURISDICTION are reviewable by the extraordinary writ
A: Jurisdiction pertains to the authority to hear and decide a
of certiorari; whereas, ERRORS OF JUDGMENT are reviewable by
case.Any act of the court pursuant to such authority, including
appeal.
the decision and its consequences is exercise of jurisdiction.
An error of judgment should be raised on ordinary appeal, not by
The authority to decide a case, not the decision rendered, is what
certiorari because certiorari is only confined to correcting errors of
makes up jurisdiction. It does not depend upon the regularity of
jurisdiction or grave abuse of discretion. The governing rule is that the
the exercise of that power or upon the rightfulness of the decision
remedy of certiorari is not available when the remedy of appeal is
made. Where there is jurisdiction over the person and subject
available or even if available, when it will not be a speedy and
matter, the resolution of all other questions arising in the case is
adequate remedy. And when the remedy of appeal is lost, you
but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil. 245)
cannot revive it by resorting to certiorari because certiorari is not a
substitute for the lost remedy of appeal.
Q: Why is it important to distinguish jurisdiction from exercise of
jurisdiction?
Lack of jurisdiction and excess of jurisdiction
A: Definitely, a court acting as such may commit errors or mistakes
They are distinguished thus: the respondent court or tribunal acts
and questioned later before a higher court. The procedure or
without jurisdiction if it does not have the legal power to determine
remedy in case of a mistake or error would be dependent on
the case; where the respondent, being clothed with the power to
whether it is an error of jurisdiction or an error in the exercise of
determine the case, oversteps its authority as determined by law, it is
jurisdiction also known as error of judgment.
performing a function in excess of its jurisdiction (Vette Industrial
Sales Company Inc. vs. Cheng, 509 SCRA 532).
EXAMPLE: A case of murder was filed in the MTC. The accused,
Ken Sur, files a motion to quash because MTC has no jurisdiction
Example of excess of jurisdiction:
over cases of murder. But the court denied the motion to quash.
When the court does not conduct a pre-trial conference, which is
Meaning, the judge has decided to assume jurisdiction. What is
mandatory under the rules.
the error committed?
Q: In whom is jurisdiction vested?
When the court without authority assumes authority over
A: Jurisdiction is vested in the court, not in the judge. A court may be
the case that is called ERROR OF JURISDICTION – the court
a single sala or may have several branches (multiple sala). If the latter,
committed an error of jurisdiction.
each is not a court distinct and separate from the others. So, when a
case is filed before a branch, the trial may be had or proceedings may
EXAMPLE: Suppose the case for murder is filed in the RTC where
continue before another branch or judge. (Tagumpay vs. Moscoso, L-
the court has jurisdiction. But in the course of the trial, it
14723, May 29, 1959)
committed mistakes like the court misinterpreted or misapplied
the provision of the RPC or the Indeterminate Sentence Law.
EXAMPLE: The RTC of Cebu City is composed of several branches – 22
What error is committed?
all in all. But technically, there is only one court – the RTC of Cebu City.
Obviously the RTC has the authority to hear and decide the case
and therefore acted with authority or jurisdiction. There is no Q: Now, if the case is filed and is assigned to Branch 8, can that case
error of jurisdiction. later be transferred and continued in Branch 9?
However, in the exercise of such authority it committed a mistake, A: YES, because you never left the same court. You are still in the
thus, the error committed is error in the exercise of jurisdiction, same court. This is because jurisdiction is not with the judge. It is
also known as ERROR OF JUDGMENT with the court itself.
But there is only one branch of RTC-Bogo, can RTC-Cebu City take
jurisdiction over its cases?
Q: Is the proceeding null and void?
No because they are different courts and jurisdiction is attached to
A: NO. What is committed is an error in the exercise of jurisdiction
the court.
and if not corrected the error can become final and executory. In
other words, if not objected to, it will stay. TYPES OF JURISDICTION:
1.) Based on cases tried: General Jurisdiction and Special
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT or Limited Jurisdiction;
Distinguish ERROR OF JURISDICTION from ERROR OF JUDGMENT. 2.) Based on the nature of the cause: Original Jurisdiction
A: The following are the distinctions: and Appellate Jurisdiction; and
1.) When a court acquires jurisdiction over the subject matter, 3.) Based on the nature and extent of exercise:Exclusive
6
Amilhamja, Adj.
Jurisdiction and Concurrent or Coordinate

Jurisdiction; Extra-territorial jurisdiction - exercised beyond the confines of the
4.) Based on situs; Territorial jurisdiction and extra- territory where the court is located.
territorial jurisdiction. Examples: Writs of certiorari, prohibition and mandamus are
enforceable only within the region where the issuing court is
GENERAL JURISDICTION VS. SPECIAL JURISDICTION located; while a writ of execution can be enforced even outside said
Q: Distinguish general jurisdiction vs. special jurisdiction territory.
A: General Jurisdiction – means the power of the court or tribunal
to hear, try and decide all kinds of cases except those prohibited
by law; Only the RTC ELEMENTS OF JURISDICTION IN CIVIL CASES
The word jurisdiction as applied to the faculty of exercising judicial
Special or limited Jurisdiction- means the power of the court to power is used in different but related senses which are:
hear, try and decide certain type of cases 1. The authority of the court to entertain a particular kind
of action, or
Example: In criminal cases, the MTC has jurisdiction over offenses 2. Administer a particular kind of relief depending on the
issues raised;
where the penalty imposable does not exceed 6 years while
3. It may refer to the power of the court over or to bind the
beyond 6 years they are triable before the RTC.
parties, or
If you examine the jurisdiction of the MTC, it has a limit but none 4. Over or to bind the property which is the subject of the
for the RTC. litigation.
The same applies in civil cases.
So there are what we call elements of jurisdiction in criminal cases,
ORIGINAL JURISDICTION VS. APPELATE JURISDICTION otherwise, the proceeding will be illegal. These elements are:
a.) Jurisdiction over the subject matter ;
Original jurisdiction is the power of the court to take cognizance
b.) Jurisdiction over the person of the parties to the
of a case at its inception or commencement. (Ballentine’s Law
case;
Dict., 2nd Ed., pp. 91 and 917)
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
Appellate jurisdiction is the power vested in a superior court to
review and revise the judicial action of a lower court.
Q: Now, what happens if in a particular case one of these is missing?
(Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) If one court has
A: The proceedings become questionable. The proceedings become
the power to correct the decision of a lower court, the power of
void. The judgment is not binding. That is the effect of lack of
this court is appellate. This is because it is commenced
jurisdiction. The proceedings are tainted with illegality and
somewhere else and it is just reviewing the decision of the said
irregularity.
lower court.
Note that in certiorari petition, the action of the superior court is

JURISDICTION OVER THE SUBJECT MATTER
not to correct but to annul. The power exercised by the superior
Q: Define jurisdiction over the subject matter.
court is the power of control and supervision over an inferior
A: Jurisdiction over the subject matter is the power of the court to
court, not appellate, that is, to limit the inferior court within its
hear and determine cases of the general class to which the
jurisdiction, its authority.
proceedings in question belong. (Banco Español-Filipino vs. Palanca,
37 Phil. 291)
EXCLUSIVE JURISDICTION VS. CONCURRENT JURISDICTION
Q: Distinguish exclusive jurisdiction vs. concurrent jurisdiction
In other words, it is the jurisdiction over the nature of the action. In
A: Exclusive Jurisdiction – means no other courts or tribunal has
criminal cases you have light, less grave and grave offenses. In civil
the same jurisdiction over a particular case. cases we have such actions as actions for sum of money, actions not
capable of pecuniary estimation, real and personal actions, action in
Concurrent Jurisdiction- means equal jurisdiction to deal with the rem, action in personam etc. This is what we call the NATURE or
same subject matter.; is that possessed by the court together classification OF THE ACTION.
with another or other courts over the same subject matter, the
*Effect of lack of jurisdiction over the subject matter
court obtaining jurisdiction first retaining it to the exclusion of
1. The Court may dismiss the case (Sec. 1, Rule 9; Bureau of Customs
the others, but the choice of court is lodged in those persons duly vs. Devanadera, GR No. 193253, September 8, 2018).
authorized to file the action. (Villanueva vs. Ortiz, 58 O.G. 1318, 2. The judgment is void (Tagalog vs. Lim Vda de Gonzalez, GR No.
Feb. 12, 1962) 201286, July 18, 2014).
->There are 2 ways you can attack or void judgment:
Exclusionary Principle 1. Direct attack – petition for annulment of judgment
The court first acquiring jurisdiction excludes all others. 2. Collateral attack - indirect
3. If the jurisdictional defect is apparent on the face of the record, it
may be subject to collateral attack (Tagalog vs. Lim Vda de Gonzalez,
TERRITORIAL JURISDICTION VS. EXTRA-TERRITORIAL
GR No. 201286, July 18, 2014).
JURISDICTION
4. The judgment is no judgment at all (Ga, Jr., vs. Tubungan, 600 SCRA
Territorial jurisdiction - exercised within the limits of the place 736).
where the court is located.
7
Amilhamja, Adj.
When a complaint is filed in court, the basic questions that ipso 1. It creates the rights which are sought to be protected or
facto are to be immediately resolved by the court on its own are: enforced;
2. It defines jurisdiction over the subject matter.
a) What is the nature of the action filed?
Both are of course in the form of substantive laws.
b) Does the court have authority to try and determine that
class of actions to which the one before it belongs?
Q: Suppose I will file a case against you in a wrong court. Actually what
Jurisdiction over the “subject matter” is not to be confused with
the term “subject matter of the action”. you should do is file a motion to dismiss (or in criminal cases a motion
Lack of jurisdiction over the subject matter is the proper ground for to quash.) but you did not. Since you did not object, you did not file a
motion to dismiss, you did not file a motion to quash, did the ‘wrong’
a motion to dismiss. This is broad enough to include the “nature of
court acquire jurisdiction over the case?
the action.” The term should not be confused with the terms
“subject or subject matter of the action” which refer to the physical A: NO. Jurisdiction over the subject matter cannot be conferred by
facts, the things real or personal, the money, lands or chattels and silence of the parties or by waiver. Estoppel or waiver or silence or
failure to object cannot vest jurisdiction in the wrong court because
the like, in relation to which the suit is prosecuted and not the
jurisdiction over the subject matter is conferred by law. And when the
delict or wrong committed by the defendant.
court has no jurisdiction, the court by itself or motu propio has the
power to dismiss.
So if you talk about declaration of nullity of marriage the subject
matter of the action is the marriage of the parties involved not any
other contract but the nature of the action is that it is not capable How is jurisdiction over the subject matter determined?
of pecuniary estimation; if it is for foreclosure of mortgage, the thing -It is determined by the allegations in the complaint, as well as by
or subject of the action is the property mortgaged, in specific the character of the relief sought (Geronimo vs. Calderon, GR No.
performance or rescission of contract, it is the contract involved that 201781, December 10, 2014; Cabling vs. Dangcalan, GR No. 187696,
is the subject matter of the action. June 15, 2016). -> THIS RULE IS FIXED
-This is regardless of whether or not the plaintiff is entitled to recover
Q: How is jurisdiction over the subject matter or nature of the action all or some of the claims or reliefs sought therein (Continental
acquired? Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015;
Barangay Mayamot vs.Antipolo City, GR No. 187349,August 17,
A: Jurisdiction over the subject matter is conferred by law, which
2016)
may be either the Constitution or a statute (Tyson’s Super Concrete,
-It does not depend upon the pleas or defenses of the defendant in
Inc. vs. Court of Appeals, 461 SCRA 435; de la Cruz vs. CA, 510 SCRA
his answer or motion to dismiss. (Cardenas vs. Camus, L-19191, July
103; Guy vs. CA, December 10, 2007), and is never acquired by
30, 1962; Edward J. Nell Co. vs. Cubacub, L-20842, June 23, 1965;
consent or submission of the parties or by their laches.
Serrano vs. Muñoz Motors, L-25547, Nov. 27, 1967)
This is a matter of legislative enactment which none but the
legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar
Thus:
vs. Vinson, L-18023, May 30, 1962)
It cannot be acquired by an agreement of the parties, -Caption of the case is not controlling (Sps. Erotica vs. Sps. Dumlao,
GR no. 195477, January 25, 2916).
waiver, or failure to object (silence).
-Defenses and evidence do not determine jurisdiction (Balibago Faith
Again, how is jurisdiction over the subject matter conferred? Baptis Church, Inc., Faith in Christ Jesus Baptist church, GR No.
-Jurisdiction over the subject matter is conferred by law which may 191527, August 22, 2016).
either be the Constitution or a statute (City of Dumaguete vs. PPA, -The amount awarded does determine jurisdiction (Dionisio vs. Sison
659 SCRA 102, 119). Puerto, 60 SCRA 471,
-Only statute can confer jurisdiction (BF Homes, Inc., vs Meralco, 636
SCRA 495, 510). What if the defendant in an ejectment case raises the issue of
tenancy in his answer, should the court dismiss the case for lack of
NOTE: If one wants to know the jurisdiction of the court, he must jurisdiction?
look into the law on jurisdiction not the rules of court or any -While the MTC does not lose its jurisdiction over an ejectment case
procedural rule. by defendant’s alleging the existence of tenancy relationship, yet, if
after the hearing, tenancy had in fact been shown, the court should
The law that confers jurisdiction refers to substantive law, not a dismiss the case for lack of jurisdiction (De la Cruz, vs.
procedural law. It likewise does not refer to an administrative order CA, 510 SCRA 103, 116).
or circular (Malaloan vs. CA, 232 SCRA 249). READ also: Velasquez vs. Cruz, GR No. 191479, September 21, 2015.
If jurisdiction over the subject matter is conferred by law, then: When may jurisdiction be challenged?
1. It cannot be subject of agreement of the parties. - In the motion to dismiss (Sec. 1[b], Rule 16, RC).
2. It cannot be acquired, waived, enlarged, or diminished by any act -It may be raised at any stage of the proceeding, even for the first
or omission of the parties. time on appeal (Calimlim vs. Ramirez, 118 SCRA 399; Pangilinan vs.
3. It cannot be conferred by acquiescence by the court. CA, 321 SCRA 51).
READ: Exception to the rule that jurisdiction is determined by the

Republic vs. Estipular, 336 SCRA 333, 340 allegations of the complaint
De Jesus vs. Garcia, 19 SCRAS 554, 558 The general rule is not applied with rigidity in ejectment cases in
Arranza vs. BF Homes, 336 SCRA 333, 340 which the defendant averred the defense of the existence of tenancy
relationship between the parties.
So Congress plays an important role in the exercise of judicial power, In Ignacio vs. CFI of Bulacan (42 SCRA 89), it was held, ”that while the
namely: allegations in the complaint make out a case of forcible entry, where
8
Amilhamja, Adj.
tenancy is averred by way of defense and is proved to be the real against the counterbond but was denied. The surety went to the Court
issue, the case should be dismissed for lack of jurisdiction as the of Appeals which affirmed the order. The surety filed a motion for
case should properly be filed with the then Court of Agrarian extension of time to file a motion to for reconsideration which the CA
Reform (now DARAB) (De la Cruz vs. CA 510 SCRA 103) granted. However, instead of filing a motion for reconsideration the
surety filed this time a motion to dismiss on ground that the CFI did not
In Ignacio and other ejectment cases (Salandanan vs. Tizon 62
have jurisdiction over the subject matter. Instead of deciding the CA
SCRA 388; Concepcion vs. CFI of Bulacan 119 SCRA 222), where
certified the case to the Supreme Court because the issue raised is
tenancy was the defense, the court went beyond the allegations
purely legal.
of the complaint in determining jurisdiction over the subject
matter and required the presentation of evidence to prove or
The Court emphatically declared: “The facts of the case show that from
disprove the defense of tenancy. After finding the real issue to be
the time the Surety became a quasi-party on July 31, 1948, it could have
tenancy, the cases were dismissed for lack of jurisdiction.
raised the question of the lack of jurisdiction of the Court of First
Instance of Cebu to take cognizance of the present action by reason of
No Retroactive Effect of Law on Jurisdiction
the sum of money involved which, according to the law then in force,
Jurisdiction being a matter of substantive law, the established
was within the original exclusive jurisdiction of inferior courts. It failed
rule is that statute in force at the time of the commencement of
to do so. Instead, at several stages of the proceedings, in the court a quo
the action determines jurisdiction – RA 7691 has no retroactive
as well as in the CA, it invoked the jurisdiction of said courts to obtain
application. (Yu Oh v. CA GR No. 125297, June 6, 2003)
affirmative reliefs and submitted its case for a final adjudication on the
This follows the general rule on application of laws.
merits. It was only after an adverse decision was rendered by the CA
that it finally woke up to raise the question of jurisdiction. Were we to
Q: Why is jurisdiction substantive not procedural?
sanction such conduct on its part we would in effect be declaring as
A: Because the law vests, defines, regulates, authority or power.
useless all the proceedings had in the present case since it was
commenced on July 19, 1948 and compel the judgment creditors to go
*The application of the doctrine of estoppel on objection to
up their Calvary once more. The inequity and unfairness of this is not
jurisdiction
only patent but revolting.”
Estoppel means you cannot disown your act by which you
have misled another while laches means abandonment of a right for
In other words, while jurisdiction as a rule, may be raised at any stage
failure to assert it for a long time.
of the proceedings (Panganiban vs. CA, 321SCRA 51, 59 [1999]), a party
may be stopped from raising such questions if he has actively taken part
The doctrine of estoppel by laches was initially emphasized in
in the very proceedings which he questions,
the doctrinal case of Tijam vs. Sibonghanoy, 23 SCRA 29. Here, the SC
belatedly objecting to the court’s jurisdiction in the event that the
barred a belated objection to jurisdiction because the party
judgment or order subsequently rendered is adverse to him. (Alday
questioned the jurisdiction only when an adverse decision is
v.FGU Insurance Corporation, 350 SCRA 113, 120 [2001]).
rendered and because the party raised only the issue after 15 years.
The party participated in all stages of the proceedings and
In general sense, estoppel by laches is failure or neglect for an
sought affirmative relief from the court.
unreasonable and unexplained length of time to do what ought to have
Estoppel by laches may only be invoked to bar the defense of
been done earlier. The failure to act warrants the presumption that one
lack of jurisdiction if the factual milieu is analogous to Tijam vs.
has abandoned his right or that he had acquiesced to the correctness
Sibonghanoy (Sps. Erorita vs. Sps. Dumlao, GR 195477, January 25,
and fairness of what has been resolved. The doctrine of estoppel is
2016).
based on public policy intended to discourage stale claims. Estoppel is
The contention that the defense of lack of jurisdiction may be
not a question of time unlike the statute of limitations. It is rather based
waived by estoppel through the active participation in the trial is not
on the inequity or unfairness of permitting a claim to be asserted at a
the general rule, but an exception, best characterized by the
time such claim is presumed to have been abandoned. (Sps. Guillermo
circumstances in Tijam vs. Sibonghanoy (Mangaliag vs. Catubig-
Agbada and Maxima Agbada v. Inter-Urban Developers, Inc. GR 144029,
Pastoral, 474 SCRA 153, 162).
Sept. 19, 2002)
So again, the general rule is, You can raise your objection on
The fact pattern common among those cases wherein the Court invoked
jurisdiction over the subject matter even for the first time on appeal.
estoppel to prevent a party from questioning jurisdiction is a party’s
active participation in all stages of a case, including invoking the
The ONLY exception is when there is estoppel by laches, as laid down
authority of the court in seeking affirmative relief and questioning the
in TIJAM vs. SIBONGHANOY
court’s jurisdiction only after receiving a ruling or decision adverse to
his case for the purpose of annulling everything done in the trial in
Tijam vs. Sibonghanoy 23 SCRA 29, April 15, 1968
which he has actively participated. As clearly pointed out in Lao vs.
In this case, a complaint for collection cognizable by the inferior court
Republic 479 SCRA 439: “A party who has invoked the jurisdiction of the
was filed in the CFI. The jurisdiction was not questioned. The CFI
court over a particular matter to secure affirmative relief cannot be
issued a writ of preliminary attachment but was dissolved when the
permitted to afterwards deny the same jurisdiction to escape liability.”
defendant filed a counterbond thru a surety. After trial, the court
rendered a judgment against the defendants. That decision became
The Supreme Court frowns upon the undesirable practice of submitting
final and a motion for execution was filed and granted. When
one’s case for decision, and then accepting the judgment only if
implemented, the writ of execution was unsatisfied so the plaintiff
favorable, but attacking it for lack of jurisdiction if it is not (Bank of the
moved that the writ be executed against the counterbond. The
Philippine Islands vs. ALS Management and Development Corporation,
surety filed an opposition and sought to be relieved from liability. The
427 SCRA 564).
motion was denied on ground that the surety was not notified.
Plaintiff then filed a second motion for execution against the
Estoppel by laches may be invoked to bar the issue of jurisdiction only
counterbond notifying the surety this time. Since the surety failed to
in cases in which the factual milieu is analogous to that of Tijam.
oppose the motion was granted. The surety moved to quash the writ
9
Amilhamja, Adj.
effectivity of the law were not affected by such new law unless the
In Tijam, the defense of lack of jurisdiction was raised for the first parties by agreement, pursuant to Sec. 7 therein, agreed to transfer
time in a motion to dismiss filed by the Surety almost fifteen (15) the pending cases from the RTC to the lower courts especially those
years after the questioned ruling had been rendered. At several which have reached the pre-trial stage.
stages of the proceedings, in the court a quo as well as in the Court
of Appeals, the Surety invoked the jurisdiction of the said courts to Exception to the Rule of Adherence/Continuity of Jurisdiction
obtain affirmative relief and submitted its case for final adjudication 1. When there is an express provision in the statute on
on the merits. It was only when the adverse decision was rendered retroactive application; or
by the Court of Appeals that it finally woke up to raise the question 2. The statute is clearly intended to apply to actions pending
of jurisdiction (Regalado vs. Go, GR No. 167988, February6, 2007) before its enactment; or
3. The statute is curative. This means that even if originally
Doctrine of Hierarchy of Courts there was no jurisdiction, the lack of jurisdiction may be
- Rule, there should be 2 or more Courts that have concurrent cured by the issuance of the amendatory decree which is in
jurisdiction the nature of a curative statute with retrospective
-Under the doctrine of hierarchy of courts, where courts have application to a pending proceeding and cures that lack of
concurrent jurisdiction over the subject matter, such concurrence of jurisdiction. Thus, in a case, while the CFI has no jurisdiction
jurisdiction does not grant the party seeking relief the absolute over a complaint for damages arising from the dismissal of a
freedom to file the case in court of his choice. Pursuant to the radio station manager which was filed on August 2, 1976, PD
doctrine, the case must be filed first to the lowest court possible 1367 vesting the court with jurisdiction over such type of
having appropriate jurisdiction. cases cured the lack of jurisdiction of the trial court at the
->Exception to the Doctrine time the instant claim was filed before it. (Garcia vs.
◦ When there are special and important reasons clearly stated in the Martinez 90 SCRA 331 [1979])
petition
◦ When dictated by public welfare and advancement of public policy Again, How Jurisdiction Over the Subject Matter is Acquired by the
◦ When demanded by the broader interest of justice Court?
◦ When the challenged orders were patent nullities 1. It is conferred by law applicable at the time of the commencement
◦ When analogous exceptional and compelling circumstances called of the action; and
for and justified the immediate and direct handling by the Court 2. Jurisdiction must be properly invoked by filing the complaint or
◦ When there are genuine issues of constitutionality that must be information.
addressed at the most immediate time.
Doctrine of primary jurisdiction
Doctrine of Non-Interference
Under this doctrine, courts will not resolve a controversy involving
The doctrine of non-interference holds that the courts of equal and
a question which is within its jurisdiction and also of an
coordinate jurisdiction cannot interfere with each other’s order
administrative tribunal, especially where the question demands
(Lapu-Lapu Development and Housing Corp. vs. Group Management
the exercise of sound administrative discretion requiring the
Corp., 388 SCRA 493, 508).
special knowledge and experience of said tribunal in determining
technical and intricate matters of fact. (Villaflor vs. CA, GR No.
◦ Thus, RTC has no power or authority to nullify or enjoin the
95694, Oct. 8, 1997).
enforcement of a writ of possession issued by another RTC (Suico
Industrial Corporation vs. CA, 301 SCRA 212, 213). Where a case is such that its determination requires the expertise,
specialized skills and knowledge of the proper administrative
Q: Does the doctrine apply to administrative bodies? bodies because technical matters or intricate questions of fact are
A: YES. When the law provides for an appeal from the decision of an involved, then relief must be obtained in an administrative
administrative body to the SC or CA, it means that such body is co- proceeding before a remedy will be supplied by the courts even
equal with the RTC in terms of rank and stature, and logically beyond though the matter is within the proper jurisdiction of a court. This
the control of the latter (Philippine Sinter Corp. vs. Cagayan Electric is the doctrine of primary jurisdiction. It applies “where a claim is
Power and Light Co, 381 SCRA 582, 591) originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which,
Doctrine of Adherence to Jurisdiction / Continuity of jurisdiction under a regulatory scheme, have been placed within the special
It means that one’s jurisdiction has attached, it cannot be ousted by competence of an administrative body, in such case, the judicial
subsequent happenings or events, although of a character which process is suspended pending referral of such issues to the
would have prevented jurisdiction from attaching in the first administrative body for its view.” (US v. Western Pacific Railroad
instance. The court, once jurisdiction has been acquired retains that Co., 352 US 59; Industrial Enterprises, Inc. v. CA, 184 SCRA 426)
jurisdiction until it finally disposes of the case (Bantua vs. Mercader, Example: Damages is claimed arising from the collision between the
350 SCRA 86; Padlan vs. Dinglasan, 694 SCRA 91, 98-99). claimant's vessel and that of another. Such claim can of course be
-As a consequence of this principle, jurisdiction is not affected by determined by the courts. But in order to enforce such claim before
a new law placing a proceeding under the jurisdiction of another the courts, there must be a determination of which vessel is at fault.
tribunal except when otherwise provided in the statute or if the This is issue is placed within the special competence of the
statute is clearly intended to apply to actions pending even before Maritime Industry Authority or Philippine Coast Guard which
its enactment (People vs. Cawaling, 293 SCRA 267) administrative body regulates sea travel. Under this situation courts
should defer to the jurisdiction of such administrative body for it has
i.e. Thus, when RA No. 7691 expanded the jurisdiction of the first the competence to determine which vessel is at fault. Its finding
level courts, said courts acquired jurisdiction over cases that then can serve as basis or premise for the legal consequences to be
under BP 129 were originally within the jurisdiction of the RTC. then defined by the court.
But cases pending already with the RTC at the time of the
10
Amilhamja, Adj.
In Far East Conference v. US 342 US 570 (1952) the Court defined pass upon or scrutinize and much less declare as unjust a judgment of
the primary jurisdiction doctrine as: another court. (Industrial Enterprises, Inc. vs. CA GR No. 88550, April 18,
A principle, now firmly established, that in cases raising issues of 1990)
fact not within the conventional expertise of judges or cases This doctrine applies to administrative bodies as well. (Rule 43,
requiring the exercise of administrative discretion, agencies Sec. 1) only when the law provides and only when the body is
created by Congress for regulating the subject matter should performing a quasi-judicial function.
notbe passed over. This is even though the facts after they have
been appraised by specialized competence serve as a premise for Exception: The doctrine of judicial stability does not apply where a third
legal consequences to be judicially defined. Uniformity and party claimant is involved. (Santos vs. Bayhon, GR No. 88643, July 23,
consistency in the regulation of business entrusted to a 1991).
particular agency are secured, and the limited functions of
review by the judiciary are more rationally exercised, by JURISDICTION OVER THE PERSON (PARTIES)
preliminary resort for ascertaining and interpreting the Jurisdiction over the parties refers to the power of the court to make
circumstances underlying legal issues to agencies that are better decisions that are binding on persons (De Pedro vs. Romasan, GR No.
equipped than courts by specialization, by insight gained 194751, November 26, 2014).
through experience, and by more flexible procedure. It is the legal power of the court to render a personal judgment against
the party to an action or proceeding (Black’s Law Dictionary, 5th Ed., 767,
Since the inception of the doctrine courts have resisted creating cting Imperial vs. Hardy, La 302 So.2d 5, 7, cited in Riano, Civil Procedure,
any fixed rules or formulas for its application, “in every case the 2016).
question is whether the reasons for the existence of the doctrine
are present and whether the purposes it serves will be aided by its Illustration:
application in the particular litigation.” As the origin and Guy vs. Gacott, GR No. 206147, January 13, 2016.
evolution of the primary jurisdiction doctrine demonstrate, the Plaintiff filed an action against a supposed corporation. Judgment was
reasons for the existence and the purposes it serves are two-fold: rendered in favour of the plaintiff and the judgment became final and
the desire for the uniformity and the reliance on administrative executory. When the writ of execution was about to be implemented,
expertise. Thus, in determining whether to apply the primary plaintiff found out that the defendant corporation is not really a
jurisdiction doctrine, we must examine whether doing so would corporation but a partnership. The sheriff found properties owned by the
serve either of these purposes. partners and attached the same.
Q: Is it proper for the sheriff to attach the properties of the partner?
These same tests were applied by our courts in the determination of A: NO. A partnership is a juridical entity that has a distinct and separate
whether or not to apply the doctrine of primary jurisdiction. Spouses personality from the persons composing it.
Jose Abejo and Aurora Abejo, et a., v. Hon. Rafael de la Cruz, etc. et In relation to the rules of civil procedure, it is elementary that a judgment
al., 149 SCRA 654, citing Pambujan Sur United Mine Workers v. of a court is conclusive and binding only upon the parties and their
Samar Mining Co., In., 94 Phil. 932, 941 [1954]) successors-in-interest after the commencement of the action in court.
A decision rendered on a complaint in a civil action or proceeding does
In Paat v. CA, 266 SCRA 167 not bind or prejudice a person not impleaded therein, for no person shall
be adversely affected by the outcome of a civil action or proceeding in
-the Court said that enforcement of forestry laws, rules and which he is not a party (Guy vs. Gacott, supra).
regulations and the protection, development and management of
forest lands fall within the primary and special responsibilities of the Q: Even if he is not arrested, can the court try an accused?
DENR. By the very natureof the functions, the DENR should be given a A: Of course not, because the court has not acquired jurisdiction over his
free hand unperturbed by judicial intrusion to determine a person. There must first be an arrest or surrender. The accused can post
controversy which is well within its jurisdiction. The assumption bail and be released but if he jumps bail there can be trial in absentia. There
therefore of the replevin suit by the trial court filed by the private will be a valid decision because the court has already acquired jurisdiction.
respondents constitutes an unjustified encroachment into the Of course, we cannot enforce the decision until we catch him.
domain of the administrative agency’s prerogative.
*How does the court acquire jurisdiction over the person?
Quasi-judicial bodies like the CSC are better equipped in handling In civil cases, it is also a must that the court acquires jurisdiction over the
cases involving the employment status of employees of those in the person of the parties. The manner by which the court acquires jurisdiction
civil service since it is within the field of its expertise. (Paloma v. over the parties depends on whether the party is the plaintiff or the
Mora GR No. 157783, Sept. 23, 2005) defendant.
1. As to Plaintiff
Doctrine of Ancillary Jurisdiction Jurisdiction over the person of the plaintiff is acquired by his/her filing
It involves the inherent or implied power of the court to determine of the complaint or petition. By doing so, he submits himself/herself
issues incidental to the exercise of its primary jurisdiction. to the jurisdiction of the court. (Davao Light & Power Co. Inc. v. CA,
Under its ancillary jurisdiction, a court may determine all questions 204 SCRA 343, 348 [1991])
relative to the matters brought before it, regulate the manner in which
a trial shall be conducted, determine the hoursat which the witnesses Example: X, a resident of Melbourne, Australia, presented a complaint
and lawyers may be heard, direct the disposition of money deposited against Y, a resident of Manila, before the CFI of Manila for accounting
in court in the course of the proceedings, appoint a receiver an grant and damages. X never came to the Philippines to file the suit and is only
an injunction,attachment or garnishment. represented in this case by counsel. Y files a motion to dismiss the
complaint on the ground that the court acquired no jurisdiction over
Doctrine of Judicial Stability or Non-Interference the person of X.
General Rule: No court has the authority to interfere by injunction
Q: Should the complaint be dismissed on said ground? Why?
with the judgment of another court of coordinate jurisdiction or to
11
Amilhamja, Adj.
A: No. It is a recognized procedural rule that jurisdiction over the mandamus or unlawful detainer cases (Bar 1994).
plaintiff is acquired by his/her filing of the complaint in court. By filing
the complaint through his/her counsel, X invoked the jurisdiction of First Instance: UPON SERVICE ON HIM OF COERCIVE
the court over his person. PROCESS IN THE MANNER PROVIDED BY LAW
The first instance when a court acquires jurisdiction over the person
2. As to Defendant of the defendant is through a service upon him of the appropriate
When is jurisdiction over the person of the defendant required? court process which in civil law is called service ofsummons. This is
-Jurisdiction over the person of the defendant is required in an action the counterpart of warrant of arrest in criminal procedure.
in personam.
-However, jurisdiction over the person of the defendant is not So if the defendant was never served with summons, any judgment
required in an action in rem or quasi in rem. rendered by the court will not bind him. Even if he is the loser in the
-Only the court should acquire res case, judgment cannot be enforced because the court did not
acquire jurisdiction over his person.
Jurisdiction over the person of the defendant is required only in
action in personam (Asiavest Limited vs. CA, 296 SCRA 539). Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE
JURISDICTION OF THE COURT
Jurisdiction over the person of the defendant is not a prerequisite -When one is seeking affirmative relief
in an action in rem and quasi in rem (Gomez vs. CA 425 SCRA 98; -Except: MTD due to lack of jurisdiction
Biaco vs. Phil. Countryside Rural Bank 515 SCRA 106.)
-Only necessary for requirement of due process In civil cases, it is the voluntary submission of the defendant to the
Action in Action in rem Action quasi in jurisdiction of the court.
personam rem
An action in An action in rem An action quasi in Voluntary appearance
personam is an is an action rem is one -To constitute voluntary appearance, it must be the kind that amount
action against a against the thing wherein an to voluntary submission to the jurisdiction of the court. Submission to
person in basis of itself individual is
the jurisdiction of the court takes the form of appearance that seeks
his personal named as
affirmative relief except when the relief sought is for the purpose of
liability fefendant and
the purpose of objecting to the jurisdiction of the court over the person of the
the procedding is defendant.
to dubject his -Thus, if he participates in the trial despite defective service of
interest therein summons the same amounts to voluntary appearance
to the obligation
or lien burdening Q: Defendant was served with summons improperly or irregularly
the property. therefore; he could question the jurisdiction of the court over his
There is a specific Motion is Purpose: not person. But instead, he did not question the jurisdiction of the court
defendant- applicable to impose liability despite the defective service of court process. Did the court acquire
judgment is everyone on defendant but jurisdiction over the person of the defendant?
applicable only to on property A: YES, because jurisdiction over the person can be acquired by:
defendant a.) waiver;
i.e. specific
b.) consent; or
performance
c.) lack of objection by the defendant.
This is unlike the jurisdiction over subject matter wherein the case
could be dismissed upon filing in the wrong court. The SC said that
Jurisdiction Over the Person of the Defendant in Actions in
when you remained silent despite the defects, your silence has cured
Personam – acquired by: the defect. Meaning, the jurisdiction over your person was acquired by
Jurisdiction over the person of the defendant is obtained either waiver, or consent, or lack of objection.
bya valid service of summons upon him or by his/her voluntary
submission to the court’s authority. (Ang Ping vs. CA, 310 SCRA Q: Distinguish jurisdiction over the subject matter from jurisdiction
343, 349 [1999]; Davao Light vs. CA) over the person of the defendant?
A: Lack of jurisdiction over the person of the defendant may be cured
by waiver, consent, silence or failure to object, whereas jurisdiction
The service of summons is intended to give official notice to the
over the subject matter cannot be cured by failure to object or by
defendant or respondent that an action has been commenced
silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20 Phil. 523)
against him. He is thus put on guard as to the demands of the
plaintiff as stated in the complaint. The service of summons is an Voluntary Appearance as Voluntary Submission To Court’s Jurisdiction
important element in the operation of a court’s jurisdiction Voluntary appearance must be the kind that constitutes voluntary
upon a party to a suit because it is the means by which the court submission to the court’s jurisdiction. Voluntary submission to the
acquires jurisdiction over his person. Without service of court’s jurisdiction cannot be inferred from the defendant’s mere
knowledge or existence of a case against him/her. In general, the form
summons, or when the service is improper, the trial and the
of appearance that would be construed as a voluntary submission to the
judgment being in violation of due process, are both null and court’s jurisdiction is an appearance that seeks affirmative relief except
void. (Avon Insurance PLC v. CA, 278 SCRA 312, 325 [1997]) when the relief is for the purpose of objecting to the jurisdiction of the
court over the person of the defendant.
The mode of acquisition of jurisdiction over the plaintiff and the
defendant applies to both ordinary and special civil actions like Certain actions which could be construed as voluntary appearance are:
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Amilhamja, Adj.
1.) when the defendant’s counsel files the corresponding jurisdiction over the res confers jurisdiction to the court even if the
pleading thereon; defendant is abroad. The res here is the thing or object or status against
2.) when the defendant files a motion for reconsideration which or in relation to which the judgment can be enforced.
of the judgment by default;
Acquisition of jurisdiction over the res by actual seizure is
3.) when the defendant files a petition to set aside the
exemplified by an attachment proceeding where the property is
judgment of default;
seized at the commencement of the action or at some subsequent
4.) when the defendant and plaintiff jointly submit a
stage in the action. It is also acquired through a legal provision
compromise agreement for the approval of the court;
which authorizes the court to exercise authority over a property
5.) when the defendant files an answer to the contempt
or subject matter such as suits involving a person’s status or
charge;
property located in the Philippines in actions in rem or quasi in rem.
6.) when the defendant files a petition for certiorari
(Banco Espanol Filipino vs. Palanca 37 Phil. 921, 927 [1918]; Perkins
without questioning the court’s jurisdiction over his v. Dizon; Sec. 15, Rule 14, Rules of Court.)
person
In Land Registration cases or probate proceedings, jurisdiction is
JURISDICTION OVER THE RES acquired by compliance with procedural requisites, such as
RES is the Latin word for “thing.” It is applied to an object, subject publication.
matter (not nature of the action), status, considered as the defendant
in the action or as the object against which, directly, proceedings are In a petition for change of name, the title of the petition must be
taken. (Black’s 5th Ed., 1172) complete by including the name sought to be adopted; otherwise,
the court acquires no jurisdiction over the proceedings. (Telmo vs.
Q: Define jurisdiction over the res. Republic, 73 SCRA 29 (1976).
A: Jurisdiction over the res refers to the court’s jurisdiction over the
thing or the property which is the subject of the action. This type of *What is the extent of relief that may be awarded in action in rem
jurisdiction is necessary when the action is one in rem or quasi in rem. and quasi in rem?
-When the action is action in personam, the jurisdiction over the res is -Any relief granted in rem or quasi in rem actions must be confined
not sufficient to authorize the court to render judgment against the to the res, and the court cannot lawfully render judgment against the
defendant. In an action in personam, jurisdiction over the person is defendant (Banco do Brasil vs. CA, 333 SCRA 545, 558).
required.
It is the power to bind the “thing”. JURISDICTION OVER THE ISSUES

An issue is a disputed point or question to which parties to an
*How is it acquired? action have narrowed down their several allegations and upon
It is acquired either by the which they are desirous of obtaining a decision. (Black’s 5th Ed., 745
(a) the seizure of the property under legal process whereby it is brought citing Muller v. Muller, 235 Cal App. 2nd 341, 45 Cal. Rptr 182,
into actual or constructive custody of the court’ or 184)
(b) as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective. (Macahilig vs. Heirs of There are 2 issues:
Grace M. Magalit, GR No. 141423, Nov. 15, 2000) 1. Issue of law
2. Issue of fact- when allegation in the complaint is specifically denied
Q: A files a case for recovery of ownership against B over a piece of land. in an answer
What is the res of the case?
A: The piece of land is the res of the case. -Jurisdiction over the issues is the power of the court to try and decide
the issues raised in the pleadings of the parties (Reyes vs. Diaz, 73
What is the nature of the action? Phil.484).
To recover ownership of real property or real action. “Which will define issue of case”
“you cannot prove what you did not alledge”
Q: However, res may not be tangible. For example, X is an illegitimate -An issue is a disputed point or question to which parties to an action
child. She wants to be acknowledged by her father. Thus, she filed a case have narrowed down their several allegations and upon which they are
against her father for compulsory recognition. desirous of obtaining a decision (Black’s Law Dictionary).
-Where there is no disputed point, there is no issue.
What is the res?
A: The res is the status of the child because it is the object of the *How Jurisdiction Over the Issues Is Conferred and Determined
litigation. 1. Jurisdiction over the issue is conferred and determined by the
allegations in the pleadings of the parties. The pleadings present the
Q: Why is jurisdiction over the res important? issues to be tried and determine whether not the issues are of fact or
A: Sometimes it is a substitute for jurisdiction over the person. of law.
There are instances when the court cannot acquire jurisdiction over 2. An issue arise because a material allegation of a claiming party is
the defendant like when he is abroad. But if the court acquires specifically denied by the defending party.
jurisdiction over the res, the case may go on. Even if the court cannot 3. Jurisdiction over the issue may be determined by the
acquire jurisdiction over the person of the defendant, jurisdiction stipulation of the parties during pre-trial (Sec. 2, Rule 18)
over the res becomes a substitute over the person. 4. Jurisdiction over the issue may also be conferred by waiver or failure
to object to the presentation of evidence on the matter not raised in
In the example of action for compulsory recognition, even if the the pleading (Sec. 5, Rule 10)
defendant is a non-resident who is out of the country the object of
litigation is status here in the Philippines, then acquisition of Q: What are pleadings?
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A: Rule 6, Section 1 - Pleadings are the written allegation of the THE SUPREME COURT
parties of their respective claims and defenses submitted to the The highest court of the land is the Supreme Court. It was not
court for trial and judgment. affected by the Judiciary Law (BP 129) which reorganized the
In a civil case, pleadings are written statements of the respective judiciary in 1983. Being a constitutional court, its jurisdiction isfound
positions of the parties, namely, the claims for the plaintiff and in the fundamental law itself. The SC is both an original and appellate
defenses for the defendant. court.
Jurisdiction over the issue is, therefore, conferred and determined Composition
by the pleadings of the parties. -Chief Justice and 14 Associate Justices.
-The Constitution ordains that the President appoints the members
Jurisdiction over the issues may also be determined and conferred of the SC and judges of lower courts from a list of at least three
by stipulation of the parties as when in the pre-trial, the parties enter nominees prepared by the JBC for every vacancy and requires the
into stipulation of facts and documents or enter into an agreement President to issue appointments, for lower courts, within 90 days
simplifying the issues of the case from submission of the list (Art. VIII, Sec. 9) and to fill the vacancy
of the SC within 90 days from its occurrence. (Art. VIII Sec. 4(1). All
Jurisdiction over the issues may also be conferred by waiver or such appointments need no confirmation. (Sec. 9)
failure to object to the presentation of evidence on a matter not
raised in the pleadings. Here the parties try with their express or Divisions and En Banc
implied consent issues not raised by the pleadings. The issues tried The SC sits either en banc or in divisions of 3, 5 or 7 members. At
shall be treated in all respects as if they had been raised in the present, it has 3 divisions of 5 members each.
pleadings
A decision or resolution of a division, when concurred in by a majority
Jurisdiction Over the Subject Matter Distinguished from of its members who actually took part in the deliberations on the issues
Jurisdiction Over the Issues in a case and voted thereon, and in no case without the concurrence of
Jurisdiction over the issues is conferred by the pleadings and by the at least 3 of such members, is a decision or resolution of the SC. (Sec.
express (stipulation) or implied (failure to object to evidence) 4(3) Art. VIII Constitution).
consent of the parties because an issue not duly pleaded may be
validly tried and decided by the court as long as there is no objection The Court en banc is not an appellate court to which decisions or
from the parties. Jurisdiction over the subject matter is conferred resolutions of a division may be appealed. (Circular No. 2-89)
by law and cannot be subject to the agreement of the parties. (Vda
de Victoria v. CA, GR No. 147550, Jan. 26, 2005) No doctrine or principle of law laid down by the court in a decision
rendered en banc or in division may be modified or reversed except by
A: The following are the distinctions: the court sitting en banc. (Sec. 4(3))
1.) Jurisdiction over the subject matter is the power
to hear and try a particular case, while How a Case Before a Division is Referred to the Court en banc
Jurisdiction over the issues is the power of At any time after a Division takes cognizance of a case and before a
the court to resolve legal questions involved judgment or resolution therein rendered becomes final and executor,
in the case; the Division may refer the case en consulta to the court en banc which,
2.) Jurisdiction over the subject matter is acquired after consideration of the reasons of the division for such referral, may
upon filing of the complaint, while return the case to the Division or accept the case for decision or
Jurisdiction over the issues of the case is acquired resolution.
upon filing of the answer which joins the issues
involved in the case. Cases assigned to a Division including motions for reconsideration
which in the opinion of at least 3 members merit the attention of the
When An Issue Arises Even If Not Raised In the Pleadings court en banc and are accepted by the majority vote of the actual
Although it is a rule that jurisdiction over the issue is to be members of the court en banc may be considered as en banc cases.
determined by the pleadings of the parties, an issue may arise in
a case without it being raised in the pleadings. This happens A resolution of the Division denying a party’s motion for referral to the
when the parties try an issue with their consent. Under Sec. 5, Rule Court en banc of any division shall be final and not appealable to the
10 of the Rules of Court, when issues not raised by the pleadings Court en banc.
are tried with the express or the implied consent of the parties,
they shall be treated in all respects, as if they had been raised in When a decision or resolution is referred by a division to the Court en
the pleadings. Thus, if evidence on a claim for salary differential is banc, the latter may in the absence of sufficiently important reasons
not objected to, the Labor Arbiter correctly considered the decline to take cognizance of the same, in which case, the decision or
evidence even if the claim is not mentioned in the complaint. resolution shall be returned to the referring Division. (Circular No. 2-89
(Cindy and Lynsy Garment v. NLRC, 284 SCRA 38, 45 [1998]) effective March 1, 1989)
Take note that jurisdiction over the issues in civil cases is acquired En Banc Cases
after defendant has filed an answer. In a resolution dated February 23, 1984, the following are considered
en banc cases:
For a decision to be effective, the court must acquire the a.) Cases in which the constitutionality or validity of any treaty,
jurisdiction over the subject matter, the person, the res in case the executive agreement, law, ordinance or executive
defendant is not around, and the last is jurisdiction over the issue. order or regulation is in question;
b.) Criminal cases in which the decision imposes the death
penalty;
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Amilhamja, Adj.
c.) Cases raising novel questions of law; 2) CSC (RA 7902);

d.) Cases affecting ambassadors, public ministers and 3) NLRC (But: see, St. Martin Funeral Homes vs. NLRC, 295 SCRA
consuls; 494);
e.) Cases where a doctrine or principle laid down by the 4) other quasi-judicial bodies (Heirs of Hinog vs. Melicor, 455 SCRA
court en banc or in division may be modified 460).
or reversed;
f.) Cases assigned to a division including motions for A. With CA – The cases where its original jurisdiction is CONCURRENT
reconsideration which in the opinion of at least 3 with the CA are: petitions for the issuance of writs of certiorari,
members merit the attention of the Court en banc prohibition, mandamus against the following:
and are acceptable to a majority vote of the actual a. the CSC (RA No. 7902);
membership of the Court en banc; b. Central Board of Assessment Appeals (PD No. 464; BP Blg. 129;
g.) All other cases as the Court en banc by a majority of its RA No. 7902);
actual membership may deem of sufficient c. NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494;RA No.
importance to merit its attention; 7902) or the Secretary of Labor under the Labor Code.
h.) Cases where the penalty to be imposed is the dismissal d. Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
of a judge, officer, or employee of the SC, Hinog vs. Melicor, 455 SCRA 460)
disbarment of a lawyer, or suspension of any of e. Also, issuance of writ of certiorari, prohibition and mandamus
them for a period of more than one year or a fine against the RTC.
ofP10,000.00, or both;
i.) Cases involving decisions, resolutions or orders of the B. CONCURRENT with the RTC – are those actions affecting
Sandiganbayan, Comelec, COA, or Military ambassadors and other public ministers and consuls (Sec. 21[2]
Tribunals; BP Blg 129; Art. VIII Sec. 5 1987 Constitution).
j.) Habeas corpus against government or military officials;
-NOTE: in all cases within the SC’s original and concurrent
Principal Functions of the Supreme Court jurisdiction, the rule of hierarchy of courts apply (Liga ng mga
a. Adjudication (Judicial Power) Barangay vs.Atienza, 420 SCRA
b. Administration or Disciplinary power 562)
c. Rule-making (Rule-making Power)
C. CONCURRENT with the CA and RTC – are those involving habeas
corpus, quo warranto, and writs of certiorari, prohibition, and
ORIGINAL JURISDICTION OF THE SUPREME COURT mandamus against inferior courts and bodies (Secs. 9[1], 21[2]2,
Article VIII, Section 5, paragraph 1 of the 1987 Constitution BP Blg. 129; Art. VIII Sec. 5, 1987 Constitution).
enumerates the ORIGINAL jurisdiction of the SC:
For example, a petition for mandamus against the MTC of Cebu
Section 5. The Supreme Court shall have City can be filed with the SC, CA, or RTC although the policy of the
thefollowing powers: Supreme Court is that it should be filed with the RTC based on the
[1] Exercise original jurisdiction over cases hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA 758)
affecting ambassadors, other public
ministers and consuls, over petitions for D. CONCURRENT WITH CA, SANDIGANBAYAN and RTC – are
certiorari, prohibition, mandamus, quo petitions for issuance of writ of Amparo and petitions for Habeas
warranto, andhabeas corpus. Data, where the action involves public data or government office.
Note that the foregoing provision does not define the E. Finally, with the advent of the new law (RA 8249), there isnow a
original jurisdiction of the SC as exclusive, hence it can CONCURRENCE between the SC and the Sandiganbayan in so far
be concurrent or exclusive. as petitions for certiorari, prohibition, mandamus, habeas corpus,
injunction and other ancillary writs in aid of the Sandiganbayan's
When is it exclusive and when concurrent? APPELLATE JURISDICTION
i.e. only in connection with a case appealed to the
Exclusive original Sandiganbayan.
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions
for the issuance of writs of certiorari, prohibition and mandamus This concurrent jurisdiction is subject to the doctrine of hierarchy of
as defined in Rule 65 against the following: courts (Liga ng mga Barangay National vs. Atienza 420 SCRA 562; Lacson
Hermanas Inc. vs. Heirs of Ignacio 462 SCRA 290).
a) the CA (Judiciary Act of 1948);
b) the COMELEC (Art. IX Sec. 7, 1987 Constitution);
c) COA (Art. IX Sec. 7 1987 Constitution; Appellate jurisdiction
and d) Sandiganbayan (PD No. -By way of petition for review on certiorari under Rule 45 over decisions
1606); and final orders of:
e) Court of Tax Appeals because it has now the same rank ◦ Court of Appeals
asthe CA by virtue of RA 9282. ◦ Sandiganbayan
◦ CTA en banc
◦ Regional Trial Court
Concurrent original
-Cases involving the constitutionality or validity of a law, treaty,
Petition for certiorari, prohibition and mandamus against:
international or executive agreement, presidential decree,
1) RTC (Sec. 21[1], BP 129);
proclamation, order, instruction, ordinance or regulation, legality of a
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tax, impost, assessment, or penalty, jurisdiction of lower court (Sec. an issue. There are no factual issues involved. If the issue of
5, Art.VIII). jurisdiction is mixed with a factual issue, the appeal should be in
the CA without prejudice to the filing of the same with the SC later. So,
The appellate jurisdiction is found in Section 5, Paragraph (2), Article
this is 100% issue of jurisdiction. No factual issue is involved.
VIII 1987 Constitution:
2) Review, revise, reverse, modify, or affirm
d) All criminal cases in which the penalty imposed is
on appeal or certiorari, as the law or the Rules
reclusion perpetua or higher.
of Court may provide, final judgments and
orders of lower courts in:
e) All cases in which only an error or question of lawis
a) All cases in which the involved.
constitutionality or validity of any Take note that ONLY an error or question of law is involved. So, if there
treaty, international or executive is a mixed question of law and a question of fact, appeal must be filed
agreement, law, presidential decree, with the CA. You only go to the SC if the appeal is 100% legal. That
proclamation, order, instruction, applies to both criminal and civil cases.
ordinance, or regulation is in question.
b) All cases involving the legality of QUESTIONS OF LAW and QUESTIONS OF FACT
any tax, impost, assessment, or toll, or There is a question of law when the doubt or difference arises as to
any penalty imposed in relation what the law is on a certain set of facts. There is a question of fact when
thereto. the doubt or difference arises as to the truth or falsehood of the alleged
facts (Sps. Santos vs. CA 337 SCRA 67).
c) All cases in which the jurisdiction of
any lower court is in issue. Example: Where the question is whether or not the debtor haspaid
the debt, the issue is one of fact. Where the question is whether or not
d) All criminal cases in which the the manner of payment is of the type which produces the legal effect
penalty imposed is reclusion perpetua of extinguishing the obligation, the issue becomes one of law. Also,
or higher. when under the set of facts, the issue is whether or not the law on
double sales applies, there is a question of law.
e) All cases in which an error or
questionof law is involved. When the issue involves a review of the evidence, it involves a question
of fact because evidence, as defined, is the means, sanctioned by the
If (a), (b), and (c) also involve questions rules, of ascertaining in a judicial proceeding the truth respecting a
of facts or mixed questions of fact and matter of fact. (Sec. 1 Rule 128)
of law, the aggrieved party shall
appeal to the Court of Appeals; and its In an action for declaration of nullity of marriage the basis is
final judgment may be appealed to the psychological incapacity. The RTC/Family Court dismissed the case
Supreme Court. (Subpar 4, Third Par. finding that there was no psychological incapacity. If the plaintiff wants
Sec. 17, Judiciary Act or RA 544) to appeal from that judgment, can she appeal directly to the SC? Is it a
question of fact or law?
a) All cases in which the constitutionality or validity
of any treaty, international or executive No. The appeal should be to the CA. The issue raised is a questionof
agreement, law, presidential decree, fact because there is need to review the evidence to resolve it.
proclamation, order, instruction, ordinance, or
regulation is in question. Suppose the court nullified the marriage on ground of impotence and
So if the RTC, which has the power, declares the law as the defendant wants to appeal because he wants to raise the issue
unconstitutional, the same has to be appealed directly to the whether or not impotence is a ground for declaration of nullity of
SC. It cannot pass through the CA because the SC has marriage this would be a question of law because there is no need for
exclusive appellate jurisdiction regarding the matter. review of the evidence to resolve it. So appeal is to the SC.
b) All cases involving the legality of any tax, impost, OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE
assessment, or toll, or any penalty imposed in JURISDICTION OF THE SUPREME COURT
relation thereto. Article IX, Section 7, paragraph (a), 1987 Constitution:
This is related to the legality of tax cases – whether a tax or
“Each Commission shall decide by a majority
tax penalty is legal or not. However, whatever decision the
vote x x x. Unless otherwise provided by this
lower court gives, it has to be appealed directly to the SC.
Constitution or by law, any decision, order, or
ruling of each Commission may be brought to
c) All cases in which the jurisdiction of any lower
the Supreme Court on certiorari by the
court is in issue
aggrieved party within thirty days from receipt
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no
of a copy thereof.”
jurisdiction over a case. The aggrieved party, it if wants to raise
that issue, it must go to the SC. When the issue is purely
The COMELEC, COA and the CSC act also as courts of justice. They
jurisdiction, the SC shall have exclusive appellate jurisdiction.
have powers to decide certain cases within their jurisdiction.
Election cases are covered by the COMELEC, claims against the
Now, when the law says all cases in which the jurisdiction of any
government, by COA and eligibility or removal from government
lower court is in issue, the cases involve 100% pure jurisdiction as
16
Amilhamja, Adj.
service of an appointive employee, by CSC.

Congress and Jurisdiction of the SC
Now, according to Section 7, any decision, order or ruling of these
commissions may be brought to the SC on certiorari, etc. So you 1.) Article VIII, Section 2, 1987 Constitution:
will see that the decisions of the constitutional commissions are The Congress shall have the power to define,
reviewable by the SC. prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme
However, Congress amended the Judiciary Law particularly Court of its jurisdiction over cases enumerated in
Section 9 on the jurisdiction of the CA by now making decisions of Section 5 hereof.
the CSC no longer appealable to the SC directly but appealable
to the CA. So based on the present law, out of the three Congress may change or even remove the jurisdiction of the RTC or CA.
constitutional commissions, the only ones whose decisions are The law can change them because jurisdiction over the subject matter
appealable directly to the SC are those of the COMELEC and the is conferred by law. However, Congress does not have the power to
COA lessen or deprive the Supreme Court of its jurisdiction under Section 5,
Article VIII.
What is the basis for Congress to pass such a law where a decision
of a constitutional body (CSC) is reviewable by a non- 2.) However, Article VI, Section 30 states:
constitutional body? “No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this
Under the Constitution, decisions of the constitutional Constitution without its advice and concurrence.”
commissions are appealable to the SC. Does Congress have the
power to change that by making it appealable to the CA? Thus, Congress cannot lessen but it can increase the SC’s powers and
jurisdiction, PROVIDED it is with the latter's advice and concurrence.
Yes because the provision, it says: “Unless otherwise provided by
this Constitution or by law..” Meaning, the decisions are So more or less, these are the scattered provisions of the
appealable to the SC unless otherwise provided by law. The Constitution dealing with the SC’s jurisdiction.
Constitution itself gave Congress the power to change it.
The Supreme Court is not a trier of facts
SC as Presidential Electoral Tribunal There are important principles worthy of note in relation to the
jurisdiction of the Supreme Court.
Article VII, Section 4, last paragraph, 1987 Constitution:
The SC is not a trier of facts which means that passing upon a factual
“The Supreme Court, sitting en banc, shall issue is not within the province of the Court (Romy’s Freight Service
be the sole judge of all contests relating to vs. Castro, 490 SCRA 160). The findings of facts of the Court of
the election, returns, and qualifications of Appeals are not generally reviewable by the SC (Sarmiento vs. Yu 497
the President or Vice-President, and may SCRA 513). Also, factual findings of the trial court, particularly when
promulgate its rules for the purpose.” affirmed by the Court of Appeals, are generally binding on the Court
(Tan vs. GVT Engineering Services 498 SCRA 93; Office of the
If there’s an electoral protest for the President and Vice- Ombudsman vs. Lazar0-Baldazo GR No. 170815 February 2, 2007).
President, the matter is not to be decided by the COMELEC but by
the SC acting as the Presidential Electoral Tribunal. It is not the function of the SC to determine the weight of the
evidence supporting the assailed decision (JR Blanco vs. Quasha 318
Judicial Review of Presidential Proclamation of Martial or SCRA 373). However, factual issues may be delved into and resolved
Suspension of the Privilege of the Writ of Habeas Corpus where the findings and conclusions of the trial court or the quasi-
judicial bodies are frontally inconsistent with the findings of the CA
Article VII, Section 18 (3), 1987 Constitution – Commander-in- (Office of the Ombudsman vs. Tongson 499 SCRA 567).
Chief Clause
“The Supreme Court may review, in an Exceptions
appropriate proceeding filed by any citizen, While it is settled rule that the SC in the exercise of its power of
the sufficiency of the factual basis of the review is not a trier of facts, jurisprudence has, however, recognized
proclamation of martial law or the suspension several exceptions in which factual issues may be resolved by the SC,
of the privilege of the writ or extension namely:
thereof, and must promulgate its decision
thereon within thirty days from its filing.” a.) when the findings are grounded entirely on speculation,
surmises or conjectures;
So, the SC, in an appropriate proceeding filed by any citizen review b.)when the inference made is manifestly mistaken, absurd or
the sufficiency of the factual basis of the proclamation of martial law. impossible;
Meaning, the SC can inquire into the basis on why martial law is c.) when there is grave abuse of discretion;
declared. d.) when the judgment is based on a misapprehension of
facts;
This is intended to prevent the Supreme Court from invoking the e.) when the findings of facts are conflicting;
Political Question doctrine laid down in many earlier cases that it is f.) when in making its findings the CA went beyond the issues
the prerogative of the President to determine, at his discretion, the of the case, or its findings are contrary to the
sufficiency of the factual basis of the proclamation of martial law or admissions of both appellant and appellee;
the suspension of the privilege of the writ or the extension thereof. g.) when the findings are contrary to the trial court;
17
Amilhamja, Adj.
h.) when the findings are conclusions without citation of falling within its original jurisdiction, such as actions for
specific evidence on which they are based; annulment of judgments of regional trial courts, as
i.) when the facts set forth in the petition, as well as in the provided in paragraph (2) hereof; and in
petitioner’s main and reply briefs, are not (b) cases falling within its appellate jurisdiction
disputed by the respondent; wherein a motion for new trial based only on the
j.) when the findings of fact are premised on the supposed ground of newly discovered evidence is granted by it.”
absence of evidence and contradicted by the
evidence on record; and So, Section 9 of BP 129, which defines the second highest court of the
k.) when the CA manifestly overlooked certain relevant facts land, has been amended by E.O. #33. In February 1995, it was amended
not disputed by the parties, which, if properly again by RA 7902, known as “The Act expanding the jurisdiction of the
considered, could justify a different conclusion. CA.”
RA 7902 restored the power of the CA to try cases and conduct
hearings, receive evidence, and perform any and all acts necessary
THE COURT OF APPEALS
to resolve factual issues raised in cases falling within the original and
The jurisdiction of the CA is now governed by BP 129 or the
appellate jurisdiction, including the power to grant new trials or
Judiciary Reorganization Act of 1980. BP 129 was passed in 1983 further proceedings (without limiting the motion for new trial based
by the former Batasang Pambansa which practically abolished all on newly discovered evidence). Trials or hearings in the CA must be
the regular courts at that time, and also the special courts continuous and completed within 3 months unless extended by the
except the SC which cannot be abolished by Congress. What was
Chief Justice.
also spared was the Court of Tax Appeals which was likewise not
affected.
Exclusive original
In lieu of these, other courts were created. The constitutionality of -Annulment of judgments of the RTC (Sec. 9[2], BP 129, as amended).
BP 129 was challenged as violative of the security of tenure of the RULE 47 provides for procedure only.
judges. But its constitutionality was sustained in the case of DELA Section 9, paragraph 1, BP 129
LLANA vs. ALBA, 112 SCRA 294.
(1) Original jurisdiction to issue writs of mandamus, prohibition,
The CA is composed of over 69 justices after new divisions were certiorari, habeas corpus, and quo warranto, and auxiliary writs or
created, one based in Cebu City and the other in Cagayan de Oro City processes whether or not in aid of its appellate jurisdiction.
pursuant to RA 8246. Section 9, paragraph 2, BP 129
(2) “Exclusive” jurisdiction over actions for annulment of judgments
They decide cases by a division of three. They sit en banc only for
of Regional Trial Courts;
administrative matters not to decide a case as it would be
impractical considering their number.
Q: Actions for annulment of judgments of RTC’s, is this similar to an
Before BP 129, the court was also called the “Court of Appeals,” the appeal? Is this the same as appealing the decision of the RTC to the CA?
counterpart of the present CA, though the CA now is different and A: No, because in appeal, you are invoking the appellate jurisdiction of
more powerful than the old one. BP 129 abolished the old CA and the CA. Here in paragraph 2, it is not appellate but original jurisdiction.
created another court which was called the INTERMEDIATE Meaning, you are filing an action before the CA for the first time. And
APPELLATE COURT (IAC). the nature of the action is to annul a judgment of the RTC.
So, from the 1983 to 1986, it was called the IAC. After the EDSA The implementation is found in Rule 47 of the Rules.
Revolution, President Aquino, pursuant to her law-making powers,
issued E.O. #33 amending the Judiciary Law and changed the name Original Concurrent
of IAC to CA (referring to the jurisdiction of the IAC). The cases where its original jurisdiction is CONCURRENT with the SC
are: petitions for the issuance of writs of certiorari, prohibition,
Many people thought that the CA of President Aquino under E.O. mandamus against the following:
#33 is actually the IAC under another name only, but in a case • the CSC (RA No. 7902);
decided by the SC, reported in • Central Board of Assessment Appeals (PD No. 464; BP Blg.
129; RA No. 7902);
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO – • NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494; RA
210 SCRA 589 [1992] No. 7902) or the Secretary of Labor under the Labor Code.
HELD: “It is the holding of the Court that the present Court of • Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
Appeals is a new entity, different and distinct from the Court Hinog vs. Melicor, 455 SCRA 460)
of Appeals or the Intermediate Appellate Court existing prior • Also, issuance of writ of certiorari, prohibition and
to Executive Order No. 33, for it was created in the wake of mandamus against the RTC.
the massive reorganization launched by the revolutionary
government of Corazon C. Aquino in the aftermath of the -Concurrent with the SC and RTC are those involving habeas corpus,
people power (EDSA) revolution in 1986.” quo warranto, and writs of certiorari, prohibition, and mandamus
against inferior courts and bodies (Secs. 9[1], 21[2]2, BPBlg. 129; Art.
Section 5 of EO 33 also amended Sec. 9 of BP 129 to read as VIII Sec. 5, 1987 Constitution).
follows:
“The Court of Appeals shall have the power to Q: Being concurrent, what will happen if such a case is filed
receive evidence and perform any and all acts simultaneously in the CA and SC?
necessary to resolve factual issues raised in (a) cases A: The consequence is found in Section 17 of the Interim Rules. In
18
Amilhamja, Adj.
other words, the Interim Rules are still intact. within three (3) months unless extended by
the Chief Justice. (As amended by RA 7902)
Interim Rules, Sec. 17. Petitions for writs of
certiorari, etc. - No petition for certiorari, Q: May the CA receive evidence on appeal?
mandamus, prohibition, habeas corpus or quo -YES!
Even if the CA is not a trial court, under the law it has the power to
warranto may not be filed in the IAC if another
try cases and conduct hearings, receive evidence and perform any
similar petition has been filed or is still
pending in the SC. Nor may such petition be and all acts necessary to resolve factual issues in cases falling within
filed in the SC if a similar petition has been filed its original and appellate jurisdiction, including the power to grant
and conduct new trials or further proceedings (Sec. 9 [3], BP 129 as
or is still pending in the IAC, unless it is to
amended by RA 7902). The CA may pass upon factual issues as when
review the action taken by the IAC on the
petition filed with it. A violation of this rule a petition for certiorari is filed before it (Alcazaren vs. Univet
shall constitute contempt of court and shall be Agricultural Products, Inc. 475 SCRA 636).
a cause for the summary dismissal of both
petitions, without prejudice to the taking of This paragraph shows that the present CA is a more powerful court
appropriate action against the counsel or than before. It is a unique court. Aside from being an appellate court,
party concerned. it also acts as a trial court. It may receive evidence but only those
evidence which were overlooked by the trial court. It can order a new
trial or conduct a new trial itself.
Exclusive appellate
The CA may pass upon factual issues as when a petition for certiorari
- Appeal from judgments of RTC.
is filed before it(Alcazaren vs. Univet Agricultural Products, Inc. 475
-Petition for review from judgments of QJA’s, CSC, Ombudsman
(Gonzales vs. Rosas, 423 SCRA 488, 494). SCRA 636) or in petitions for writ of amparo or habeas corpus data
-Appeal from decisions of MTC in cadastral or land registration cases or in case of actions to annul judgment of the RTC over which the CA
has original jurisdiction (Bar 2008).
(Sec. 34, BP 129).
Q: May the Court of Appeals receive evidence on appeal?
Exclusive appellate jurisdiction by way of ordinary appeal from the
A: YES. The court of Appeals shall have the power to try cases and
RTC and the Family Courts (Sec. 9[3] BP Blg. 129).
conduct hearings, receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling within its
Exclusive appellate jurisdiction by way of petition for review from
original and appellate jurisdiction (Section 9, BP 129 as amended).
the RTC rendered by the RTC in the exercise of its appellate
jurisdiction (Sec. 22 BP Blg. 129; Rule 43, Rules of Court; Sec. 9 BP
Q: If an issue of fact is tried before the RTC, can I always ask the CA
Blg. 129)
to allow me to present evidence? Does it mean to say now that since
the CA is a very powerful court, it can take the place of the RTC?
Exclusive appellate jurisdiction by way of petition for review from
A: That is already interpreted in the case of
the decisions, resolutions or orders or awards of the CSC, Central
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT –
Board of Assessment Appeals and other bodies mentioned in Rule
125 SCRA 522 [1983]
43 (Sec. 9[3]), BP Blg. 129) and of the Office of the Ombudsman in
administrative disciplinary cases (Enemecio vs. Office of the HELD: The power of the CA to receive evidence refers only to
Ombudsman 419 SCRA 82; Gonzales vs. Rosas 423 SCRA 488). incidental facts which were not 100 percent touched upon, or
matters which were simply overlooked by the trial court. You
Note that under RA No. 9282, the judgments AND FINAL
cannot opt not to present evidence before the RTC. It only refers
ORDERSOF THE Court of Tax Appeals are no longer appealable by
to incidental facts.
way of petition for review to the CA. Judgments of the CTA
“Evidence necessary in regards to factual issues raised in cases
rendered en banc are appealable to the SC by way of Rule 45 (Sec.
falling within the Appellate Court’s original and appellate
11 RA No. 9282)
jurisdiction contemplates ‘incidental’ facts which were not
touched upon, or fully heard by the trial or respondent Court. The
Exclusive appellate jurisdiction over decisions of MTCs in cadastral
law could not have intended that the Appellate Courtwould hold
or land registration cases pursuant to its delegated jurisdiction
an original and full trial of a main factual issue in a case, which
(Sec. 34 BP Blg. 129 as amended by RA No. 7691). This is because
properly pertains to Trial Courts.”
decisions of MTCs in these cases cases are appealable in the same
manner as decisions of RTCs (Sec. 34 BP Blg. 129).
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now,
Power to try and conduct hearings if you will analyze paragraph 3, you will notice that the CA is a
[1] Section 9, last paragraph, BP 129: powerful court because it has exclusive appellate jurisdiction over all
final judgments, decisions, resolution, orders or awards of RTC’s.
The Court of Appeals shall have the power So as a general rule, if the RTC, anywhere in the country renders a
to try cases and conduct hearings, receive decision and you want to appeal, whether civil or criminal, chances
evidence and perform any and all acts are it will go the to CA. It is a powerful court, because it covers all
necessary to resolve factual issues raised in RTC’s and the appellate jurisdiction is exclusive.
cases falling within its original and
appellate jurisdiction, including the power And not only RTC’s. The law says “and quasi-judicial agencies,
to grant and conduct new trials or further instrumentalities, boards or commissions…” Not only decisions of
proceedings. Trials or hearings in the CA the RTC but also of quasi-judicial agencies or bodies, also called
must be continuous and must be completed administrative bodies.
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Amilhamja, Adj.
defined shall be deemed to be the territorial area

Administrative bodies are actually part of the executive branch of the branch concerned for purposes of
but they act just like courts of justice. They can decide cases and determining the venue of all suits, proceedings
there are hundreds of administrative agencies in the Philippines. or actions, whether civil or criminal, as well as
And therefore, if you lose a case before anyone of these bodies, determining the Metropolitan Trial Courts,
or tribunals, you appeal the decision not with the SC, but to the Municipal Trial Courts, and Municipal Circuit Trial
CA. Courts over which the said branch may exercise
appellate jurisdiction. The power herein granted
The amendments by RA 7902 is even more specific by adding this shall be exercised with a view to making the
phrase, “including the SEC, SSS, the Employees Compensation courts readily accessible to the people of the
commission and the Civil Service Commission (CSC).” different parts of the region and making the
attendance of litigants and witness as
Q: Is the decision of the NLRC appealable before the CA because inexpensive as possible.
itis also a quasi-judicial agency and under the law, all decisions of
quasi-judicial agencies are supposed to be appealed to the CA. Though RTC Cebu City is found in the 7th Judicial Region, which
includes Cebu, Bohol, Negros Oriental and Siquijor province, its
A: Yes, As the original rule is already modified in the St. Martin territorial area is not the entire region, (7th Judicial Region), where
Funeral Homes vs. NLRC case. Also, decisions of the Secretary of it belongs or even the entire province of Cebu or limited to Cebu City
Labor, under the Labor Code are not reviewable by the CA, but only because it depends on the territory as defined by the SC.
they are reviewable directly by the SC.
Now, the law says, the SC has the power to define the area of its
Subparagraph 4 of the fourth paragraph of Section 17 refers to branch for purposes of supervising that area and the MTC there.
appeal from the RTC on pure legal question which should be filed Now, as early as 1983, the SC has already come out with the
with the SC. administrative order defining the area of responsibility of each
Q: Suppose there are questions of fact, or it is an appeal on branch throughout the Philippines.
questions of fact and questions of law?
A: Under the 1948 Judiciary Law, you cannot appeal directly to the Interim Rules, Sec. 2. Territorial Jurisdiction of
SC. You must appeal to the CA. Courts. -
a) MetTCs, MTCs and MCTCs shall exercise
The same thing when the issue is on the constitutionality of atreaty, their jurisdiction in the city, municipality or
law, legality of tax, when the jurisdiction of the lower court is in circuit for which the judge thereof is
issue, as explained here in this paragraph of the Judiciary Actof appointed or designated.
1948, if the appeal is 100% constitutional issue, jurisdictional or
legality issue – appeal is to the SC under the Constitution. But if it is b) A Regional Trial Court shall exercise its
mixed with questions of fact, do not go to the SC. You go first to the jurisdiction within the area defined by the SC
CA. That is what the paragraph is all about. as the territory over which the particular
branch concerned shall exercise its authority,
in accordance with Sec. 18 of BP 129.
REGIONAL TRIAL COURTS
Q: How many RTC’s are there in the Philippines? *Exclusive original
BP 129 Section 13 (1) Creation of Regional Trial Note Section 19 was amended by RA 7691, effective April 15, 1994
Courts – There are hereby created thirteen and entitled “An Act Expanding the Jurisdiction of the Metropolitan
(13) Regional Trial Courts, one foreach of the Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts”.
following regions: x x (1) In all civil actions in which the subject of the litigation is
incapable of pecuniary estimation;
So the Judiciary law has divided the country into 13 areas called (2) In all civil actions which involve the title to, or possession of,
JUDICIAL REGIONS. From the 1st to the 12th, the 13th is actually in real property, or any interest therein, where the assessed value of the
the National Capital Region (NCR), Metro Manila. Every division is property involved exceeds Twenty thousand pesos (P20,000.00) or for
divided into branches. civil actions in Metro Manila, where such the value exceeds Fifty
thousand pesos (50,000.00) except actions for forcible entry into and
Every RTC judge is appointed to a region which shall be his unlawful detainer of lands or buildings, original jurisdiction over which
permanent station, and his appointment states the branch of the is conferred upon Metropolitan Trial Courts, Municipal Trial Courts,
court and seat to which he shall be originally assigned. However, the and Municipal Circuit Trial Courts;
SC may assign temporarily an RTC judge to another region as public (3) In all actions in admiralty and maritime jurisdiction where
interest may require, provided that such temporary assignment shall the demand or claim exceeds Three hundred thousand pesos
not last longer than 6 months without the consent of the RTC judge (P300,000.00) or, in Metro Manila, where such demand or claim
concerned. exceeds Four hundred thousand pesos (400,000.00).
(4) In all matters of probate, both testate and intestate, where
The SC shall define the territory over which a branch of the RTC shall the gross value of the estate exceeds Three hundred thousand pesos
exercise his authority. The law provides: (P300,000.00) or, in probate matters in Metro Manila, where such
BP 129, Section 18. Authority to define territory gross value exceeds Four Hundred thousand pesos (P400,000.00).
appurtenant to each branch – The Supreme (5) In all actions involving the contract of marriage and marital
Court shall define the territory over which a relations; * It is now with the Family Court (Section 5, RA 8369).
branch of the Regional Trial Court shall (6) In all cases not within the exclusive jurisdiction of any court,
exercise its authority. The territory thus tribunal, person or body exercising jurisdiction of any court, tribunal,
20
Amilhamja, Adj.
person or body exercising judicial or quasi-judicial functions; Roque vs. Heirs of Pastor, 334 SCRA 127, 132- 133).
(7) In all civil actions and special proceedings falling within
the exclusive original jurisdiction of a Juvenile and Domestic Examples of an action incapable of pecuniary estimation
Relations Court and of the Court of Agrarian Relations as now ◦ A complaint for expropriation is incapable of pecuniary estimation
provided by law; * It is now with the Family Court (Section 5, RA (Bgry. San Roque vs. Heirs of Pastor, 334 SCRA 127, 132-133).
8369). ◦ An action seeking to annul a resolution of a GOCC is an action
(8) In all other cases in which the demand, exclusive of incapable of pecuniary estimation (Polomok Water District vs. Polomok
interest, damages of whatever kind, attorney's fees, litigation General Consumers Assn., Inc., 636 SCRA 647, 652-653).
expenses, and costs or the value of the property in controversy ◦ An action for specific performance (Russel vs. Vestil, 304 SCRA 738,
exceeds three hundred thousand pesos (P300,000.00) or, in such 745).
other cases in Metro Manila, where the demand exclusive of the ◦An action that seeks to from the defendant the execution of the deed
abovementioned items exceeds four Hundred thousand pesos of absolute sale based on contract which they had previously made is
(P400,000.00). an action for specific performance, and hence, an action incapable of
pecuniary estimation. This is the case although the end result of the
Concurrent Original- Section 21 plaintiff’s claim was the transfer of the subject property to his name
1. With the SC in actions affecting ambassadors, other (Sps. Saraza vs. Francisco, GR No. 198718, November 27, 2013).
public ministers, and consuls (Sec. 21[2], BP 129, as amended; Sec. ◦An action to enforce the right to repurchase is an action for specific
5, Art.VIII, Constitution). performance, hence, an action incapable of pecuniary estimation (Heirs
2. With the SC and CA in petitions for certiorari, prohibition of Bautista vs. Lindo, GR No. 208232, March 10, 2014).
and mandamus against lower courts and bodies and in petition for An action to enjoin the survey of the land is an action incapable of
quo warranto and habeas corpus (Sec. 21[1], BP 129; Sec. 9[1], pecuniary estimation (Republic vs. Principalia management and
BP129) Personnel Consultant, GR No. 198426, September 2, 2015).
Appellate – Section 22 Where the action is principally the recovery of a sum of money, the
Over all cases decided by the First Level Courts in their action is one capable of pecuniary estimation and jurisdiction would
respective territorial jurisdiction (Sec. 22, BP 129, as amended). then depend on the amount of the claim exclusive of interest, damages
of whatever kind, attorneys fees, litigation expenses and costs.
Jurisdiction over intra-corporate controversies (Raymundo vs. CA, 213 SCRA 457 [1992]; Singsong vs. Isabela Sawmill,
The jurisdiction of SEC over Sec. 5, PD 902-A was transferred to the 88 SCRA 623 [1979])
courts of general jurisdiction or to the proper Regional Trial Court
(Gonzales vs. GJH Land, Inc., GR No. 202664, November 10, 2015 ). The basic issue in an action incapable of pecuniary estimation isone
other than the recovery of money. In this kind of action the money
(a) Devices or schemes employed by, or any acts of the board of claim is merely incidental (ibid)
directors, business associates, its officers or partners, amounting to
fraud and misrepresentation which may be detrimental to the How to determine whether the action is capable or incapable of
interest of the public and/or of the stockholder, partners, members pecuniary estimation-
of associations or organization registered with the Commission; In determining the nature of the action, the allegations in the complaint
(b) Controversies arising out of intra-corporate or partnership and the relief prayed for must be considered (Bgry. Piapi vs.Talip, 496
relations, between and among stockholders, members or SCRA 409, 413).
associates; between any or all of them and the corporation,
partnership or association of which they are stockholders, members “In determining whether an action is one the subject matter of which
or associates, respectively; and between such corporation, is not capable of pecuniary estimation, this Court has adopted the
partnership or association and the State insofar as it concerns their criterion of first ascertaining the nature of the principal action or
individual franchise or right as such entity; remedy sought. If it is primarily for the recovery of a sum of money, the
(c) Controversies in the election or appointment of directors, claim is considered capable of pecuniary estimation and whether
trustees, officers or managers of such corporations, partnership or jurisdiction is in the MTCs or the CFIs would depend on the amount of
associations; the claim. However, where the basic issue is something other than the
(d) Petitions of corporations, partnerships or associations to be right to recover a sum of money, where the money claim is purely
declared in the state of suspension of payment in cases where the incidental to, or a consequence of, the principal relief sought, this Court
corporation, partnership or association possesses sufficient has considered such actions as cases where the subject of the litigation
property to cover all its debts but foresees the impossibility of may not be estimated in terms of money, and are cognizable exclusively
meeting them when they respective fall due or in cases where the by the CFI.”
corporation, partnership or association has no sufficient assets to
cover its liabilities but is under the management of a Rehabilitation Examples: of actions incapable of pecuniary estimation are those for
Receiver or Management Committee created pursuant to this specific performance, support, or foreclosure of mortgage or
Decree. annulment of judgment, also actions questioning the validity of a
mortgage, annulling a deed of sale or conveyance and to recover the
Exclusive original jurisdiction of the RTC price paid and for rescission which is a counterpart of specific
performance. (Russel vs. Vestil, 304 SCRA, 739, 744-745 [1999])
What does incapable of pecuniary estimation mean?
It is an action whose principal purpose or remedy sought is not to
recover a certain sum of money. Where the basic issue is something Such ruling was, however, modified in Go vs. UCPB, GR No. 156182 Nov.
other than the right to recover a sum of money, or the money claim 11, 2004 where the court declared the following as real actions:
is merely incidental to the principal relief, the action is incapable of 1) judicial foreclosure of real estate mortgage;
pecuniary estimation (Russel vs. Vestil, 304 SCRA 739; Bgry. San 2) actions to annul real estate mortgage;
21
Amilhamja, Adj.
for the reason that a real estate mortgage is a real right as well as a
real property. So an action to cancel or annul a real estate mortgage So, for a lesser value, MTC has jurisdiction. This is why MTCs now have
necessarily affects title to the real property, hence a real action and jurisdiction over accion publiciana when the value of the property is
jurisdiction is determined by the assessed value of the property. P20,000 or less.
Where, however, the demand is in the alternative, as in an In forcible entry and unlawful detainer, jurisdiction lies with the MTC
action to compel the defendant to deliver the house by completing regardless of the assessed value.
its construction or to pay the sum of P644.31, the action is one
[2] In all civil actions in admiralty and
that is capable of pecuniary estimation (Cruz vs. Tan 87 Phil. 627).
maritime jurisdiction where the demand or
Thus, an action for specific performance or in the alternative, for
claim exceeds three Hundred Thousand pesos
damages in the amount of P180,000.00 is one capable of
( [300,000.00] or, in Metro Manila, where such
pecuniary estimation. Here, the amount of damages is
demand or claim exceeds four Hundred
determinative of jurisdiction (Bar 1997).
Thousand pesos (PhP 400,000].
If as gleaned from the complaint, the principal relief sought by the
EXAMPLE: The shipper will ship to you goods involving a common
complaint is for the court to issue an injunction against the
carrier and while in transit, the goods are lost or they are totally
adverse party and his representatives to permanently enjoin them
damaged. You would like to file a claim or a case against the carrier,
from preventing the survey of the subject land, the complaint is
what kind of a case is it? That is an admiralty or maritime case.
not a possessory action but one for injunction. As such, the
subject matter of litigation is incapable of pecuniary estimation
Q: In which court will you file it?
and properly cognizable exclusively by the RTC under Sec. 19(1) of
A: It depends on how much is your claim. If your claim of the
BP Blg. 129, as amended by RA No. 7691 (Bokingo vs. CA 489 SCRA
damaged or lost cargo exceeds P300,000, then, RTC; if it is P300,000
521).
or less, MTC. In Metro Manila, the jurisdictional amount is higher –
it should be over P400,000.
An action for injunction is within the jurisdiction of the RTC being
an action incapable of pecuniary estimation. (Bar 1997).
[3] In all matters of probate, both testate and
intestate, where the gross value of the estate
An action for replevin of a motorcycle valued at P150,000.00 is
exceeds Three Hundred Thousand pesos
capable of pecuniary estimation. The basis of jurisdiction is the value
[php300,000] or, in probate matters in Metro
of the personal property sought to be recovered. The amount of
Manila, where such gross value exceeds four
P150,000.00 falls within the jurisdiction of the MTC. (Bar 1997).
Hundred Thousand pesos [P400,000].
An action for interpleader is capable of pecuniary estimation. If the
In the subject of Wills and Succession, when a person dies, his estate,
subject of interpleader is real property, then the jurisdictional
his property will be settled for the benefit of his creditors and heirs.
amount is determined by the assessed value of the land. If it be
That is what you call either as testate or intestate proceedings
personal property, then the value of the property.
depending on whether the deceased left a will or none.
Hence, an action of interpleader to determine who between the
If there are debts due the decedent, thus, payable by his/her estate,
defendants is entitled to receive the amount of P190,000.00 from
settlement would mean liquidation, which includes inventory of all
the plaintiff is within the jurisdiction of the MTC (Bar 1997; Makati
the assets and obligations payable, payment of the debts, then
Development Corporation vs. Tanjuatco 27 SCRA 401).
distribution of the residue to the heirs. This is done by the court thru
an administrator appointed by it or thru the executor appointed by
[1] In all civil actions which involve the title to,
the decedent.
or possession of, real property or any interest
therein, where the assessed value of the Q: Where should the estate of the deceased person be settled, RTC or
property involved exceeds P20,000 or for civil MTC?
actions in Metro Manila, where such value A: It depends on how much is the gross value of his estate. If it exceeds
exceeds P50,000 except actions for forcible P300,000, RTC. If it is P300,000 or less, it should be with the MTC. In
entry into and unlawful detainer of lands and Metro Manila again, the gross should be more than P400,000.
buildings; original jurisdiction over which is
conferred upon the Metropolitan Trial Courts, The jurisdiction of the court as a probate or intestate court relates only
Municipal Circuit Trial Courts; to matters having to do with the settlement of the estate and probate
of the will of the decedent but does not extend to the determination of
So in all real actions outside of forcible entry and unlawful detainer, questions of ownership that arise during the proceedings.
jurisdiction is determined by the assessed value of the real property
subject thereof. [4] In all actions involving the contract of
marriage and marital relations.
What is a real action?
It is one affecting title to or possession of real property, or interest Most of these cases are under the Family Code and now fall under the
therein. (Sec. 1, Rule 4) jurisdiction of family courts (RA 8369, The Family Courts Act of 1997).
But because family courts have not yet been constituted, the SC has
Examples: would be accion publiciana (an action to recover designated RTCs to take cognizance of such cases.
possession of real property), accion reinvidicatoria (action to recover
ownership of real property), quieting of title, provided the assessed Q: What are the possible actions which you can imagine involving the
value of the property exceeds P20,000.00. contract of marriage and marital relations?
22
Amilhamja, Adj.
A: Annulment of marriage, legal separation, declaration of nullity, and tenant, lessor and lessee were transferred to the DAR
dissolution of the absolute community of husband and wife, and particularly the DAR Adjudication Board (DARAB), making them
action for support. quasi-judicial cases. So, from CAR to RTC, from RTC to DARAB
RA 8369, SECTION 5.Jurisdiction of Family So the RTC has NO jurisdiction, EXCEPT in the following 2 cases:
Courts. — The Family Courts shall have
QUISMUNDO vs. COURT OF APPEALS - 201 SCRA 609 [1991]
exclusive original jurisdiction to hear and
HELD: “With the enactment of Executive Order No. 229,
decide the following cases:
which took effect on August 29, 1987, the Regional Trial
xxxxxx
Courts were divested of their general jurisdiction to try
d) Complaints for annulment of marriage,
agrarian reform matters. The said jurisdiction is now vested
declaration of nullity of marriage and those
in the Department of Agrarian Reform. Said provisions thus
relating to marital status and property
delimit the jurisdiction of the regional trial courts in agrarian
relations of husband and wife or those living
cases only to two instances:
together under different status and
1. Petitions for the determination of just
agreements, and petitions for dissolution of
compensation to landowners; and
conjugal partnership of gains;
2. prosecution of criminal offenses under said Act.
xxxxxx
EXAMPLE: If you are a landowner and your agricultural land isplaced
under the CARP coverage, the government will fix the payment for you.
What were the cases which were usually falling within the
The trouble is that you did not agree on the amount of payment. You
originaljurisdiction of the former JDRC?
want to contest the amount of compensation payable, in which court
Usually, those involving family and children, like support filed by
will you file your action?
the child against his father, compulsory recognition, custody of A: RTC and you ask for higher compensation.
children, adoption proceedings.
Under BP 129, all of these are now within the jurisdiction of
[8] In all cases in which the demand, exclusive
RTC.
of interest, damages of whateverkind, attorney’s
HOWEVER, this has been amended again by RA 8369
fees, litigation expenses, and costs or the value
(Family Courts Act of 1997) and these cases are now under the
of the property in controversy exceeds Three
jurisdiction of the FAMILY COURTS: (See Sections 5 [b], [c], [e], [g])
Hundred Thousand pesos [P300,000] or, in such
other cases in Metro Manila, where the demand,
RA 8369, SECTION 5.Jurisdiction of Family exclusive of the above-mentioneditems exceeds
Courts. — The Family Courts shall have Four Hundred Thousand pesos [ P400,000]
exclusive original jurisdiction to hear and The best example is money claim. Most cases which go to court now
decide the following cases: are money claims – an action to collect sum of money.
xxxx
b) Petitions for guardianship, custody of Q: Unpaid loan – you would like to collect an unpaid loan of your
children, habeas corpus in relation to the debtor. Where will you file your case?
latter; A: It depends on how much are you collecting. If it is over P300,000
c) Petitions for adoption of children and the outside Metro Manila – RTC, in Metro Manila, – P400,000. If the
revocation thereof; amount that you are collecting is only P300,000 or less obviously, you
xxxx file your case in the MTC.
g) Petitions for declaration of status of
children as abandoned, dependent or
If the value of the claim is > P300,000 – RTC
neglected children, petitions for voluntary
If the value of the claim is = or < P300,000 – MTC
or involuntary commitment of children; the
suspension, termination, or restoration of
Q: Suppose the principal amount that you borrowed from me is
parental authority and other cases
P300,000, the interest is P30,000. And you are collecting P10,000 for
cognizable under Presidential Decree No.
moral damages, another P10,000 for expense of litigation, etc. So my
603, Executive Order No. 56, (Series of
total claim is P350,000. Where will I file the case?
1986), and other related laws;
A: MTC. In determining the jurisdictional limit of P300,000, do not
[7] In all civil actions and special proceedings
include the interest, damages, attorney’s fees, etc. So you deduct those
falling within the exclusive originaljurisdiction
from the principal claim even if you put them in your complaint because
of a Juvenile and Domestic Relations Court
the law says, “xxx exclusive of interest, damages
and of the Court of Agrarian Relations as now
provided by law; of whatever kind, attorney’s fees, litigation expenses, and costs xxx.”
Before BP 129 or before 1980, there were special courts existing. Q: What are litigation expenses and costs?
Among these courts were the so called Juvenile and Domestic A: Costs are not the same as attorney’s fees and litigation expenses.
Relations Courts (JDRC). Then you have the Court of Agrarian Actually, attorney’s fees and litigation expenses are part of damages.
Relations (CAR) which tried cases involving tenancy, agricultural Costs are governed by Rule 141, while attorney’s fees and litigation
xxxxx expenses are governed by the Civil Code.
As regards the law transferring the jurisdiction of the CAR to the ACTIONS PURELY FOR DAMAGES
RTC, it became partially obsolete with the enactment of the SITUATION: Suppose the action is purely for damages, like breach of
Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15, contract of carriage. Instead of bringing you to your destination, you
1988). Under the CARL, all agrarian disputes between landlord ended up in the hospital. You now sue the common carrier for
23
Amilhamja, Adj.
damages and your claim is P1 million for injuries, moral, complied with, B has to return the amount to A. According to A
exemplary, etc. Where will you file the case? the conditions are already complied with but B still refuses to
return the money. So, A filed a complaint which he denominated
This question has been clarified by SC Circular No. 09-94: as sum of money and since he is only asking for the return of
“Guidelines in the Implementation of RA 7691 Extending the P50,000, A filed the case in the MTC.
Jurisdiction of the MTCs” where the SC said that the provision
excluding damages applies only if the damages are INCIDENTAL to ISSUE #1: Whether or not the MTC has jurisdiction over the case.
the action. If the main cause of action is 100% damages, you HELD: The MTC has NO jurisdiction. It should be filed in the RTC.
include it in determining tire P300,000 jurisdictional limit of the It is not an action to collect a loan. You are not recovering a loan.
MTC. You are compelling him to comply with the agreement – to return
the money after certain conditions are complied with. You are
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but trying to enforce your agreement. therefore your action is an
she survived. She claims for damages for breach of contract of action for SPECIFIC PERFORMANCE which should be tried by the
carriage amounting to P1 million. RTC under paragraph [1].
Q: Where will she file her case? “When a party to a contract has agreed to refund to the other
A: RTC because the amount of the claim for damages exceeded party a sum of money upon compliance by the latter of certain
P300,000. Since the case is purely for damages, it is included in conditions and only upon compliance therewith may what is
determining the jurisdiction of the court. legally due him under the written contract be demanded, the
action is one not capable of pecuniary estimation.” So it is
The rule is, you only exclude the damages if it is a secondary cognizable by the RTC.
claim. But if damages is the primary or only claim, you determine
whether the total claim for damages is above P300,000, or equal ISSUE #2: But according to the plaintiff, when he filed the
to or less than P300,000. complaint, it is entitled “for sum of money” which should fall
under paragraph [8]. Is the plaintiff correct?
The SC said in this Circular, “the exclusive damages of whatever HELD: NO. The plaintiff is wrong. The title of the action is not
kind” in determining the jurisdiction under Section 19 determinative on the court. Just like the rule on contracts
paragraph where the nature of the contract is not determined by the
[8] applies to cases where the damages are merely incidental to title but by stipulation.
or a consequence of the main cause of action. However, if the “The factual allegations in the complaint seeking for the
claim for damages is the main cause of action, the amount of such performance of an obligation of a written contract which is a
claim should be considered in determining the jurisdiction. matter clearly incapable of pecuniary estimation prevail over
the designation of the complaint as one for the sum of money
EXAMPLE: P will file a case against D to recover a piece of land and damages.”
worth P20,000.00 only. But her claim for damages exceeds
P300,000. As may be seen from the foregoing enumeration, jurisdiction is
Q: In what court will P file a civil case where she wants to recover determined:
a piece of land with value of only P20,000? (1) by the nature of the action; or
A: MTC because of paragraph (2) by the value of the demand; or
[2]. As regards the damages of P300,000.00, MTC still has (3) by the value of the property involved.
jurisdiction because such damages,being incidental, is not
included in determining the jurisdiction ofthe RTC. [6] In all cases not within the exclusive
Now, the law says, “exclusive of interest, damages of whatever kind, jurisdiction of any court, tribunal, person or
attorney’s fees, litigation expenses, and costs or THE VALUE OF THE body exercising judicial or quasi-judicial
PROPERTY IN CONTROVERSY exceeds P300,000….” functions
Practically, this makes the RTC the universal catcher – what does not
Q: What is the property in controversy? belong to any other court, belongs to the RTC. That’s what this
A: Obviously here, the property is PERSONAL PROPERTY not real. If provision is saying.
the property sought to be recovered is real, apply paragraph [2] of That is why, because of this, there are problems reaching the SC on
Section 19 on recovery of real property. jurisdiction – whether a case belongs to this, to the regular court or
to a special quasi-judicial body. And we are going to go over some of
Q: You want to recover your car which your friend borrowed but did these cases.
not return, which court has jurisdiction?
A: MTC if the value is P300,000.00 or less, and RTC, if over. SANDOVAL vs. CANEBA - 190 SCRA 77 [1990]
FACTS: The quarrel in this case involves the owner of the
Q: Who shall determine the value or how should the value be subdivision and the buyer. Later on, the buyer refused to pay
determined? the unpaid installments. The subdivision developer filed a case
A: In determining the jurisdiction of the court, over the subject for the collection of unpaid installments over the subdivision
matter, the allegations in the complaint governs. lots.
HELD: The regular courts have no jurisdiction. That should be
Let us go to some interesting cases on this provision. decided by the Housing and Land Use Regulatory Board
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA - 120 (HLURB) formerly known as NHA. Under PD 957, it is the HLURB
SCRA 89 [1983] not the RTC or MTC which has the jurisdiction to hear a case
FACTS: A entered into an agreement with B where A deposited involving non-payment of installments over subdivision lots.
the sum of P50,000 with B. After certain conditions are
24
Amilhamja, Adj.
The counterpart of this case was the case of and not with the regular courts.
CT TORRES ENTERPRISES, INC. vs. HIBIONADA – 191
SCRA 268 [1990] BENGUET CORPORATION vs. LEVISTE – 204 SCRA 99 [1991]
FACTS: This is also the case between the buyers of a
FACTS: A mining company entered into an operations agreement for
subdivision lot against the subdivision developer. Only this
management with another mining company. Then later on, one wants
time it is the subdivision lot buyers who are suing the
to file a case for rescission of the agreement for one reason or another.
developer of the subdivision. The subdivision lot owners
filed against the subdivision developer for not maintaining So it was filed with the RTC.
properlythe roads of the subdivision. So, they filed a case HELD: The RTC has NO jurisdiction again because PD 1281 vested with
the Bureau of Mines with jurisdictional supervision and control over
for specific performance with damages to compel the
all issues on mining claims and that the Bureau of Mines shall have the
developer to comply with the contract to maintain the roads.
original exclusive jurisdiction to hear and decide cases involving the
HELD: The jurisdiction is with the HLURB and not with the
regular courts. But according to the plaintiff “But I’m also cancellation and enforcement of mining contracts.
The trend is to make the adjudication of mining cases a purely
claiming for damages so that it should be filed before the
administrative matter. Another case is the case of
regular courts. How can the HLURB award damages? Only the
regular courts can award the damages.”
Can the HLURB award damages? MACHETE vs. COURT OF APPEALS - 250 SCRA 176 [1995]
According to the SC: FACTS: This case involves the collection by the landowner of unpaid
“The argument that only courts of justice can adjudicate claims back rentals from his leasehold tenants. The landowner filed the money
resoluble under the provisions of the Civil Code is out of step claims before the RTC.
with the fast-changing times. There are hundreds of HELD: The RTC has no jurisdiction over cases for collection of back
administrative bodies now performing this function by virtue of rentals for the leasehold tenants. This is an agrarian dispute which
a valid authorization from the legislature. This quasi-judicial exclusively cognizable by the DARAB.
function, as it is called, is exercised by them as an incident of “The failure of petitioners to pay back rentals pursuant to the leasehold
the principal power entrusted to them of regulating certain contract with landowner is an issue which is clearly beyond the legal
activities falling under their particular expertise.” competence of the trial court to resolve. The doctrine of primary
jurisdiction does not warrant a court to arrogate unto itself the authority
So quasi-judicial bodies are now authorized to award damages. to resolve a controversy the jurisdiction over which is initially lodged
As a matter of fact in Labor Relations, the question is asked whether with an administrative body of special competence.”
the NLRC is authorized to grant damages also to an employee, moral Let’s go to Professional Regulation Commission (PRC). That is the
and exemplary, which normally is only awarded by courts. The government body which administers all government examination for
Labor Code says yes. In other words, even damages now can be professionals except members of the law profession. Now, this is what
awarded by administrative bodies such as NLRC. happened in the case of
FAJARDO vs. BAUTISTA – 232 SCRA 291 [1994] LUPANGCO ET AL vs. COURT OF APPEALS - 160 SCRA 848[1988]
FACTS: Lupangco et al were BS Accounting graduates and reviewing to
FACTS: Isabelo and Marita Jareno are the owners and developers of a
take the CPA exams in 1985.
subdivision. Fajardo and others, as buyers, signed separate contracts
There were some anomalies (leakages) in the 1985 CPA Board
each designated a contract to sell under which for consideration
Examination. By next year, the PRC passed a resolution prohibiting CPA
therein stated, the Jarenos bound themselves to sell to Fajardo et al
examinees to attend review classes or conferences because of leakages.
the lot subject thereof, and after the latter shall have paid the
They are prohibited from receiving any handouts, review materials or
purchase price and interest shall execute in favor of Fajardo et al the
any tip from any school, college or university. That was Resolution No.
corresponding deeds of sale.
105 of the PRC.
When these contracts to sell are still ongoing the Jarenos sold these
So petitioners Lupangco et al, all CPA reviewers filed an injunction suit
lots to other buyers and the title was transferred to the second buyer.
against the PRC and to declare the resolution unconstitutional. They
So when Fajardo et al learned about it, they filed separate complaints
filed it with the RTC. The PRC moved to dismiss alleging that the RTC has
with the RTC for annulment of the sale to the other buyers.
no jurisdiction over the case because the one which has the jurisdiction
Now, according to Fajardo, the jurisdiction of the case belongs to the
is the CA – exclusive jurisdiction to review any decision, order, ruling or-
RTC and not with the HLURB because the titles of the lots are
resolution of any quasi-judicial body. And the PRC is a quasi- judicial
transferred to the other buyers. It is no longer under the name of
body. So their resolution can only be questioned before the CA and not
Jareno. Secondly, their action is for the annulment of title to a third
with the RTC.
person. Thirdly, these third persons are not the developers; fourthly,
HELD: The PRC is WRONG because PRC is not only a quasi- judicial body,
under the Judiciary Law, actions involving title to a real property are
it is also a quasi-legislative body. It also acts as legislative body by issuing
to be tried bythe RTC.
rules and regulations.
HELD: The RTC still has NO jurisdiction because the case involved
Now, what kind of resolution is being questioned here? It is a
unsound real estate business practice on the part of the subdivision
resolution pursuant to its purely administrative function. It isa measure
owners and developers. Under the law, unsound real estate business
to preserve the integrity of licensure examination. Therefore, it does not
practice is under the HLURB. Thepractice in the case is not a sound
belong to the CA. It is not the type of resolution contemplated by Section
real estate business – I am adeveloper, I enter into a contract with
9.
you and then later on I sold the contract to a third person, that is
“The authority of the CA to review all resolutions of all quasi-
unsound!
judicial bodies pursuant to the law does not cover rules and regulations
“By virtue of P.D. 1344, the HLURB has the exclusive jurisdiction to
of general applicability issued by the administrative body to implement
hear and decide the matter. In addition to involving unsound real
its purely administrative policies and functions like Resolution No. 105
estate business practices, the complaints also involve specific
which was adopted by the PRC as a measure to preserve the integrity of
performance of the contractual and statutory obligations of the
licensure examinations.” So that is not the resolution reviewable by the
owners or developers of the subdivision.” So it is still with the HLURB
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Amilhamja, Adj.
CA. Commissioner of Customs and/or to the CTA as provided for in the

Now, under what provision under Section 19 can we justify Tariff and Customs Code.
the jurisdiction of the RTC in the case. The SC said: It is under
paragraph 1 where the case is incapable of pecuniaryestimation or, Disputed Assessments
it may fall under paragraph 6 where the case is not within the The CTA has jurisdiction over disputed assessments, and the ordinary
exclusive jurisdiction by any court, tribunal or- body exercising courts over non-disputed ones. Failure of a taxpayer to appeal to the
Judicial or quasi-judicial functions. CTA makes the assessment final and executory. Thereafter, if a
So, if it is not reviewable by the CA, in what court can you collection suit is filed in the court, there can no longer be any inquiry
question the resolution? Definitely, not the CA, definitely not the SC. on the merits of the original case. (Republic v. Dy Chay 1 SCRA 975;
I don’t think it’s with the NLRC. So it will fall under the jurisdiction of Olivares v. Marquez, 438 SCRA 679)
the RTC. Or, it can also fall under paragraph [1,] where the subject
matter of the suit is not capable of pecuniary estimation because Non-Disputed Assessments
what is the nature of the demands is to declare unconstitutional this As provided in RA 9262, the CTA has:
resolution. So it belongs to the jurisdiction of the RTC. “(1) Exclusive original jurisdiction in tax collection cases involving final
and executory assessments for taxes, fees, charges and penalties;
BERNARDO vs. CALTEX PHIL. INC. - 216 SCRA 170 [1992] Provided, however, that collection cases where the principal amount
FACTS: Under E.O. No. 172, when there is a dispute between an of taxes and fees, exclusive of charges and penalties, claimed is less
operator or dealer and an Oil company regarding dealership than P1M shall be tried by the proper MTC, MetTC and RTC.
agreement, the case shall be under the jurisdiction of the Energy
Regulatory Board (ERB). So any dispute regarding their relationship The tax collection case would fall under the jurisdiction of the first level
agreement except disputes arising out of the relationship as debtor courts where the amount does not exceed P300,000.00 or in MM
and creditor. So if the dispute arose out of the relationship as debtor where it does not exceed P400,000.00.
and creditor, it should be filed with the RTC.
Now what happened here is that on December 5, 1990, Bernardo, a Where, however, what is being questioned is the very authority and
dealer of Caltex, ordered gasoline from Caltex. So he ordered in the power of the assessor, acting solely and independently, to impose the
morning. At 6:00 at night on the same day, there was a price increase. assessment and of the treasurer to collect the tax, and not merely the
So when the gasoline was delivered the following day, Caltex charged amounts of the increase in the tax, jurisdiction over the case was
Bernardo for the increased price. Bernardo refused to pay and he properly with the trial courts. (Olivares v. Marquez 438 SCRA 679)
filed a case before the RTC. Caltex argued that the case should be
filed with the ERB. Special jurisdiction to try special cases
HELD: The RTC has jurisdiction because “a contract of sale of Certain branches of the RTC may be designated by the SC to handle
petroleum products was here perfected between Caltex and its exclusively criminal cases, juvenile and domestic relations cases,
operator/dealer Bernardo; that in virtue of the payment admittedly agrarian cases, urban and land reform cases which do not fall under the
made by Bernardo, Caltex became a “debtor” to him in the sense that jurisdiction of quasi-judicial bodies and agencies, and/or such other
it was obligated to make delivery to Bernardo of the petroleum special cases as the SC may determine in the interest of a speedy and
products ordered by him; and that the only issue is the manner by efficient administration of justice (Sec. 233 BP Blg. 129)
which Caltex shall perform its commitment in Bernardo’s favor. It is
rather one cognizable by the Regional Trial Court, as a dispute indeed
‘arising out of their relationship as debtor and creditor.’”
“What the controversy is all about, to repeat, is simply the prices at CONCURRENT ORIGINAL JURISDICTION OF THE RTC
which the petroleum products shall be deemed to have been Sec. 21. Original jurisdiction in other cases. -
purchased from Caltex by Bernardo in December 5, 1990. This is Regional Trial Courts shall exercise original
obviously a civil law question, one determinable according to the jurisdiction:
provisions of the Civil Code and hence, beyond the cognizance of the
Energy Regulatory Board.” [1] In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, habeas
Lack of Jurisdiction by RTC on Customs Matters corpus, and injunction which may be enforced
The RTC is devoid of any competence to pass upon the validity or in any part of their respectiveregions;
regularity of seizure and forfeiture proceedings conducted by the
Bureau of Customs, and to enjoin or otherwise interfere with the said Q: What is the difference between the original jurisdiction of the RTC
proceedings even if the seizure was illegal. Such act does not deprive in Section 21 and the original jurisdiction of the RTC in Section 19?
the Bureau of Customs of jurisdiction thereon. (RV Marzan Freight, A: In Section 19, you have the EXCLUSIVE original jurisdiction,
Inc. v. CA, 424 SCRA 596) whereas in Section 21 you have the original jurisdiction but
CONCURRENT with other courts.
The Court held that the Trial court was incompetent to pass upon
and nullify: (1) the seizure of the cargo in the abandonment Thus “original” jurisdiction stated in Section 21 is also shared with
proceedings, and (2) the declaration made by the District the SC and CA. Therefore , the SC, CA, and RTC have original
Collector of Customs that the cargo was abandoned and ipso facto concurrent jurisdiction under Section 21. Like issuance of writs of
owned by the government. It, likewise, has no jurisdiction to certiorari, prohibition, mandamus, quo warranto, habeas corpus,
resolve the issue of whether or not the private respondent was the etc. This is concurrent with the CA and the SC. Such writs may be
owner of the cargo before it was gutted by fire. The trial court issued by (a) the RTC under Section 19; (b) CA under Section 9; and
should have rendered judgment dismissing the complaint, without (c) SC under Article VIII Section 5 of the Constitution. The 3 courts
prejudice to the right of the private respondent to ventilate the share concurrent jurisdiction over these cases.
issue before the
However the only difference is that writs issued by an RTC can only
26
Amilhamja, Adj.
be enforced in the same region where the RTC belongs. Unlike rules)
writs issued by the SC and CA, they can be enforced anywhere in
the Philippines. Unlike in a case under the original jurisdiction of the RTC, where an
appeal to the CA is a matter of course. Meaning, for as long as your
[2] In actions affecting ambassadors and other appeal is on time and properly made, the CA will entertain it.
publicministers and consuls.
It is different, however, in a case under the appellate jurisdiction of
The SC and RTC have original concurrent jurisdiction in actions
the RTC, even if your appeal is on time and properly made, there is
affecting ambassadors, other public ministers and consuls. Section
21 paragraph 2 states only of the concurrent original jurisdiction of no assurance that the CA will entertain the appeal. The CA may give
the SC and RTC. Section 19 on the jurisdiction of CA does not include it due course only when your petition for review shows prima facie
evidence that the lower court has committed an error of fact or law
the action stated in section 21 paragraph 2 as part of its (CA’s)
that will warrant a reversal or modification of the decision or
jurisdiction.
judgment sought to be reviewed.
APPELLATE JURISDICTION OF THE RTC
Summary of RTC jurisdiction:
Sec. 22. Appellate jurisdiction. - Regional Trial 1.) As to the EXCLUSIVE original jurisdiction – Section
Courts shall exercise appellate jurisdiction 19 (BP 129);
2.) As to its original CONCURRENT jurisdiction – Section
over all cases decided by MetTCs, MTCs and
MCTCs in their respective territorial 21 (BP 129);
jurisdictions. Such cases shall be decided on 3.) As to its APPELLATE jurisdiction – Section 22 (BP 129)
the basis of the entire record of the
proceedings had in the court of origin andsuch JURISDICTION OF FAMILY COURTS
memoranda and/or briefs as may be Under RA 8369, the Family Courts shall have exclusive jurisdiction
submitted by the parties or required by the over the following civil cases:
RTCs. The decision of the RTCs in such cases 1. Petitions for guardianship, custody of children and habeas
shall be appealable by petition for review to corpus involving children;
the CA which may give it due course only when 2. Petitions for adoption of children and the revocation
the petition show prima facie that the lower thereof;
court has committed an error of fact or law 3. Complaints for annulment of marriage, declaration of
that will warrant a reversal or modification of nullity of marriage and those relating to status and
the decision or judgment sought to be property relations of husband and wife or those living
reviewed. together under different status and agreements, and
petitions for dissolution of conjugal partnership of gains;
4. Petitions for support and/or acknowledgment;
Now take note that the RTC also has appellate jurisdiction under
Section 22. These are cases decided by the MTC. So they act as a sort 5. Summary judicial proceedings brought under the provisions
of Executive Order No. 209, otherwise known as the “Family
of ‘court of appeals.’ The RTC exercises appellate jurisdiction over all
cases decided by the MTC in their respective territorial jurisdiction. Code of the Philippines”;
6. Petitions for declaration of status of children as abandoned,
dependent, or neglected children, petition for voluntary of
Q: How will the RTC decide on the appeal?
involuntary commitment of children, the suspension,
A: It shall be decided on the basis of the entire record of the
termination or restoration of parental authority and other
proceedings had in the court of origin (MTC) such as memoranda
cases cognizable under PD No. 603,
and/or briefs as may be submitted. This means that witnesses will
E.O. No. 56 (series of 1986) and other related laws;
not be made to appear again in the appeal. It is only a matter of
7. Petitions for the constitution of the family home (Sec. 5 RA
reviewing the testimony, stenographic notes, evidence presented,
8369).
memoranda and briefs by the RTC judge.
In areas where there are no Family Courts, the above enumerated
cases shall be adjudicated by the Regional Trial Court (Sec. 17, RA No.
Q: What are memoranda and briefs?
8369).
A: It is where the appealing party will argue that the decision is
wrong and try to convince the judge that the decision is wrong, and
MUNICIPAL TRIAL COURTS
the other party to counter act that the decision is correct.
Actually, when you know the jurisdiction of the RTC, automatically you
know the jurisdiction of the MTC. In criminal cases for example, RTC has
Q: Assuming that the case is originated in the MTC and subsequently
jurisdiction when the penalty imposable is imprisonment of more than 6
dismissed by the RTC on appeal, is the decision by the RTC rendered
years until death penalty. So, necessarily, if it is 6 years or below, the MTC
pursuant to its appellate jurisdiction appealable to the CA?
has jurisdiction. Same with civil cases.
A: YES, but the mode of appeal is now different. The decision of the
RTC in such cases shall be appealable by petition to review to the CA.
Summary of jurisdiction of MTC:
The CA may or may not give it due course.
a) As to original jurisdiction – Section 33
b) As to delegated jurisdiction – Section 34
Q: What is the difference between an appeal made from the RTC c) As to special jurisdiction – Section 35
to CA and appeal from the MTC to RTC, which is dismissed by the
latter and subsequently appealed to the CA? The jurisdictional amount does not include: Sec. 33[1], BP 129
A: The former (RTC – CA) is in pursuance to the original jurisdiction • Interest
of the RTC. The latter (MTC-RTC-CA) is in pursuance to the • Damages of whatever
appellate jurisdiction of the RTC. (They are governed by different • kind
27
Amilhamja, Adj.
• Attorney’s fees The exclusion of the term "damages of whatever kind" in determining the
• Litigation expenses jurisdictional amount, applies to cases where the damages are merely
• Costs incidental to or a consequence of the main cause of action. However, in
cases where the claim for damages is the main cause of action, or one of
Exclusive original the causes of action, the amount of such claim shall be considered in
Sec. 33. Jurisdiction of Metropolitan Trial determining the jurisdiction of the court (Sante vs. Claravall, GR
Courts, Municipal Trial Courts and Municipal No. 173195, February 22, 2010).
Circuit Trial Courts in civil cases. - Metropolitan
Trial Courts, Municipal Trial Courts and Jurisdiction and Payment of Docket Fees
Municipal Circuit Trial Courts shall exercise: Even if the amount of damages and attorney’s fees do not determine
jurisdiction, they must still be specifically alleged in the complaint for the
1) Exclusive original jurisdiction over civil purpose of payment of docket fees. Thus, the higher the amount one is
actions and probate proceedings, claiming the higher the filing fee.
testate and intestate, including the
grant of provisional remedies in proper Interest
cases, where the value of the personal -Since the interest on the loan is a primary and inseparable component of
property, estate, or amount of the the cause of action, not merely incidental thereto, and already
demand does not exceed One hundred determinable at the time of filing of the Complaint, it must be included in
thousand pesos (P100,000.00) or, in the determination of which court has the jurisdiction over petitioner's
Metro Manila where such personal case (Gomez vs. Montalban, 548 SCRA 693).
property, estate, or amount of the THUS:
demand does not exceed two hundred General rule: If interest is only incidental, then it should not be included in
thousand pesos (P200,000.00), the determination of the jurisdictional amount.
exclusive of interest, damages of
whatever kind, attorney's fees, Totality rule
litigation expenses, and costs, the -Where there are several claims or causes of action between the same or
amount of which must be specifically different parties, embodied in the same complaint, the amount of the
alleged: Provided, That interest, demand shall be the totality of the claims in all the causes of action,
damages of whatever kind, attorney's irrespective of whether the causes of action arose out of the same or
fees, litigation expenses, and costs different transactions (Section 33, BP, 129).
shall be included in the determination
of the filing fees: Provided further, Does the MTC have jurisdiction over settlement of estate?
That where there are several claims or YES. Exclusive original jurisdiction over civil actions and probate
causes of actions between the same or proceedings, testate(with will) and intestate (without will), including the
different parties, embodied in the grant of provisional remedies in proper cases, where the value of the
same complaint, the amount of the personal property, estate, or amount of the demand does not exceed
demand shall be the totality of the three hundred thousand pesos (P300,000.00) or, in Metro Manila where
claims in all the causes of action, such personal property, estate, or amount of the demand does not
irrespective of whether the causes of exceed four hundred thousand pesos (P400,000.00) exclusive of interest
action arose out of the same or damages of whatever kind, attorney's fees, litigation expenses, and costs
different transactions. (Section 33, BP, 129).
RA 7691, Sec. 5. After five (5) years from the effectivity of this Act, *Delegated jurisdiction of the MTC (Section 34, BP 129, as amended)
the jurisdictional amounts mentioned in Sec. 19(3), (4), and (8); Question in bar
and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this — Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Act, shall be adjusted to Two hundred thousand pesos Trial Courts may be assigned by the Supreme Court to hear and determine
(P200,000.00). Five (5) years thereafter, such jurisdictional cadastral or land registration cases covering lots where there is no
amounts shall be adjusted further to Three hundred thousand controversy or opposition, or contested lots the where the value of which
pesos (P300,000.00): Provided, however, That in the case of does not exceed One hundred thousand pesos (P100,000.00), xxxxxx Their
Metro Manila, the abovementioned jurisdictional amounts shall decisions in these cases shall be appealable in the same manner as
be adjusted after five (5) years from the effectivity of this Act to decisions of the Regional Trial Courts. -CA
Four hundred thousand pesos (P400,000,00).
*Special jurisdiction of the MTC
if you know the jurisdiction of the RTC on money claims and In the absence of all the Regional Trial Judges in a province or city, any
probate cases, automatically you will also know that of the MTC. Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial
Judge may hear and decide petitions for a writ of habeas corpus or
Under the law, it is only the principal claim or the main claim which applications for bail in criminal cases in the province or city where the
is computed. Interest, damages of whatever kind, attorneys fees, absent Regional Trial Judges sit (Section 34, BP 129, as amended).
litigation expenses and cost are not included in determining the
jurisdiction when they are merely incidental to or a consequence of Actions involving “title”, “interest” and “possession” (TIP) in real
the main cause of action. However, in cases where the claim for property - “REAL ACTION”
damages is the main cause of action, or one of the causes of action, Preliminary Note:
the amount of such claim shall be considered in determining the -In determining the nature of the action, the allegations in the complaint
jurisdiction of the court. and the relief prayed for must be considered (Bgry. Piapi vs.Talip, 496
SCRA 409, 413).
28
Amilhamja, Adj.
-Thus, in determining whether the action is a real action or personal Because it is not simply the filing of the complaint or appropriate
action the allegations in the complaint and the relief prayed for must initiatory pleading, but the payment of the prescribed docket fee, that
be considered. vests a trial court with jurisdiction over the subject matter or nature
-The determination of whether an action is real or personal action is of the action. (Sun Insurance Office Ltd. [SIOLI] v. Asuncion 170 SCRA
material to determine: 274, 285 [1989])
1) Jurisdiction;
2) Venue and Q: Suppose there was no mention of any claim for moral or exemplary
3) Amount of filing fee damages, by not stating the amount claimed, can he still prove them
-An action “involving title to real property” means that the plaintiff’s during the trial? YES
cause of action is based on a claim that he owns such property or that
he has legal rights to have exclusive control, possession, enjoyment, or But he did not pay docket fee?
disposition of the same. A: Never mind, once it is awarded, there is now a lien in the judgment
“Title” is the link between for the payment of the docket fee.
1) a person who owns property, and
2) the property itself (Heirs of Sebe vs. Heirs of Sevilla, 603 SCRA 395, When docket fee is due for actual damage:
404; Padlan vs. Dinglasan 694 SCRA 91, 100,March 20, 2013). So in criminal cases, if the claim for moral or exemplary damages is
mentioned in the information, you must pay the docket fee upon filing
*Consider: of the information. But whether alleged in the information or not, you
Before the amendment of BP 129, there is no distinction between real can claim for actual damages and there is no docket fee for actual
action and action incapable of pecuniary estimation. Both actions are damages except in cases under BP 22. That is the exception which is
within the jurisdiction of the RTC. With the amendment of BP 129, now embodied in Section 1 paragraph [b] which was taken from SC
there is now need to distinguish the two actions considering that not circular 57-97 – there is no payment of docket fee for actual damages
all real actions are cognizable by the RTC. The assessed value of the except in criminal cases for violation of BP 22 because paragraph [b]
real property has to be determined in order to know which court has says:
jurisdiction (Heirs of Concha vs. Sps. Lumocso, 540 SCRA 1). Upon filing of the aforesaid joint criminal and civil actions,
the offended party shall pay in full the filing fees based on the
Examples of real action amount of the check involved, which shall be considered as
• An action to quite title the actual damages claimed.
• An action for reconveyance of real property
• An action for reconveyance of possession of real property SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS – 170SCRA
• Accion publiciana 274 [1989]
• Accion reinvnidicatoria HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate
How to know whether or not one is a real action? initiatory pleading, but the payment of the prescribed
“Ultimate objective test” docket fee, that vests a trial court with jurisdiction over
-Need to inquire into the primary or ultimate objective of the the subject matter or nature of the action. Where the
complaint filing of the initiatory pleading is not accompanied by
-Where the ultimate objective of the plaintiffs is to obtain title to real payment of the docket fee, the court may allow
property, it should be filed with the proper court having jurisdiction payment of the fee within a reasonable time but in no
over the assessed value of the property subject thereof (Bgry. Piapi case beyond the applicable prescriptive or
vs.Talip, 469 SCRA 409, 413). reglementary period.
2. The same rule applies to permissive counterclaims,
READ: third party claims and similar pleadings, which shall not
DeVera vs. Sps. Santiago, GR No. 179457, June 22, 2015 be considered filed until and unless the filing fee
De Leon vs. CA, 278 SCRA 94 prescribed therefore is paid. The court may also allow
Maslag vs. Monzon, GR No. 174908, June 17, 2013 payment of said fee within a reasonable time but also
Heirs of Sebe vs. Heirs of Sevilla, 603 SCRA 395, 402-403 in no case beyond its applicable prescriptive or
reglementary period.
What is the basis of jurisdiction in real action? - find it in tax 3. Where the trial court acquires jurisdiction over a claim
declaration by the filing of the appropriate pleading and payment
-The basis is the assessed value of real property. As between the of the prescribed filing fee but, subsequently, the
estimated value of the land and the assessed value as reflected in the judgment awards a claim not specified in the pleading,
Tax Declaration, the latter should prevail. (Geonzon Vda de Barrera vs. or if specified the same has been left for determination
Heirs of Vicente Legaspi, 565 SCRA 192). by the court, the additional filing fee therefor shall
-The assessed value must be alleged, otherwise the Court will dismiss constitute a lien on the judgment. It shall be the
the case (Quinagoran vs. CA, 531 SCRA 104, 113-114; Cabling vs. responsibility of the Clerk of Court or his duly
Dangcalan, GR No. 187696, June 15, 2016). authorized deputy to enforce said lien and assess and
-But, even if the assessed value of the land is not alleged in the collect the additional fee.
complaint, but the tax declaration is attached thereto, the court can
still assess the amount (BSP vs. Legaspi,GR No. 205966,March 2, 2016). Payment of docket fee and counterclaims
-In cases of land not declared for taxation purposes, the value of the “The same rule applies to permissive counterclaims…”
property shall be determined by the assessed value of the adjacent lot
(Section 33[3]. BP 129, as amended; Cabling vs. Dangcalan). Re Compulsory Counterclaim:
Rule 141 on Legal Fees was revised effective August 26, 2004 by AM
Why pay the docket fee?
29
Amilhamja, Adj.
No. 04-2-04-SC and the revision includes the payment of docket b) the total amount of related damages sought.
fees not only for permissive counterclaim but also for compulsory
counterclaims. But the SC suspended the enforcement of the new The court acquires jurisdiction over the action if the filing of the
rates of legal fees under Rule 141 effective September 21, 2004, initiatory pleading is accompanied by the payment of the requisite fees,
with respect to compulsory counterclaims, among others. It did or, if the fees are not paid at the time of the filing of the pleading, as of
not suspend the imposition of legal fees. the time of full payment of the fees within such reasonable time as the
court may grant, unless, of course, prescription has set in the
However, in Korea Technologies Co. Ltd. Vs. Lerma, 542 SCRA 1, meantime.”
January 7, 2008, the Court said:
In other words, the total docket fee must be based on the assessed
“On July 17, 1998, at the time PGSMC filed its Answer value of the land and for the damages. Thus:
incorporating its counterclaims against KOGIES, it was not liable to 1. If the docket fee for the recovery of land is paid but none for
pay filing fees for said counterclaim being compulsory in nature. the damages, do not dismiss the entire case! Just do not
We stress, however, that effective August 16, 2004, under Sec. 7 consider the claim for the damages. Or,
of Rule 141, as amended by AM No. 04-2-04-SC, docket fees are 2. second option, citing SUN INSURANCE, give him reasonable
now required to be paid in compulsory counterclaim or cross time to pay the balance.
claims.”
While Sun Insurance relaxed the rule (as to how or when to complete
And the third rule laid down in Sun Insurance: the payment), it did not however, effect any change in the rule that it
If the judgment awards a claim not specified in the pleadings, is not only the filing of the complaint but also the payment of the
the filing fee therefor shall be a lien in the judgment. It shall be docket fee that is necessary for the acquisition of the jurisdiction of
the responsibility of the clerk of Court or his duly-authorized the court over the complaint filed. (Gensoli & Co. v. NLRC, 289 SCRA
deputy to enforce the lien, assess and collect the additional fee. 407, 413 [1998]).
If the filing of the initiatory pleading is not accompanied by payment
Q: When can this possibly happen? of the docket fees, the court may allow payment of the fee within a
A: That can happen for example if I ask for damages. A man was reasonable time but in no case beyond the applicable prescriptive or
hospitalized because of physical injuries. While still in the hospital reglementary period. (Colarina v. CA, 303 SCRA 647, 654 [1999])
he filed an action for damages and based the amount of damages
on the current billing but alleged that he continues to incur Other interesting cases on docket fees.
expenses as may be determined in the course of trial. He paid the
docket fee corresponding to the amount mentioned. After trial he No “file now, pay later” policy
was able to establish expenses in the sum of P50,000.00. FILIPINAS SHELL PETROLEUM CORP vs. COURT OF APPEALS –
171 SCRA 674 [1989]
Q: Can the court award the P 50,000?
FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex,
A: Yes, because the additional expenses came only after the
Mobil, etc.) of the Philippines for infringement of patent with
filing of the case. The additional docket fee will constitute a lien on
prayer for the payment of reasonable compensation for
the award.
damages. According to him, these companies used in their
operation a certain type of machine which he claimed he
The Sun Insurance is a leading case on docket fee. It was followed
invented. His patent was infringed. Thus, all these companies
with a third case in December 1989 which further clarified the
are all liable to him for royalties. The estimated yearly royalty
SUN INSURANCE ruling. This is the case of
due him is P236,572. Since the violation has been for many
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE - 180
years already, his claims reached millions. The trial court
SCRA 433 [1989]
ordered him to pay P945,636.90 as docket fee. He had no
NOTE: When this case was filed, there was no SUN
money so he questioned it. The trial court ruled:
INSURANCE decision yet. The guiding rule was still
“We will allow you to file the case and the docket fee is
MANCHESTER. But while this was pending the SUN
deductible from whatever judgment of damages shall be
INSURANCE was already out.
awarded by the court.”
HELD: There is no such thing as file now pay later. No
Second rule: justification can be found to convert such payment to
FACTS: The case was for recovery of land with damages. So it is not something akin to a contingent fee which would depend on the
purely for damages. So the amount of filing fee is assessed based on result of the case.
the assessed value of the land because it is a real action, which the “Filing fees are intended to take care of court expenses in the
plaintiff paid. handling of cases in terms of cost of supplies, use of
equipments, salaries and fringe benefits of personnel, etc.,
Defendant moved to dismiss based on MANCHESTER because the computed as to man hours used in handling of each case. The
plaintiff did not specify in the complaint how much damages he was payment of said fees therefore, cannot be made dependent
claiming. Now the RTC of Tagum denies the motion to dismiss. The on the result of the action taken, without entailing tremendous
defendant goes to the SC citing MANCHESTER. losses to the government and to the judiciary in particular.”
Of course, the SC said that the Manchester ruling was no longer
controlling because of Sun Insurance. But it enunciated another rule. Q: What is the remedy of the plaintiff if he/she cannot really pay
HELD: “Where the action involves real property and a related claim the filing fee?
for damages as well, the legal fees shall be assessed on the basis of A: Have himself declared by the court as a pauper litigant.
both:
a) the value of the property and LACSON vs. REYES - 182 SCRA 729
FACTS: There was a case filed and then the lawyer filed a motion to
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Amilhamja, Adj.
direct the plaintiff to pay him his attorney’s fees – a motion for HELD: Plaintiff is correct. “In determining whether an action is one the
payment of attorney’s fees. subject matter of which is not capable of pecuniary estimation, this
Issue: Is the lawyer required to pay a filing fee? Court has adopted the criterion of first ascertaining the nature of the
HELD: Yes. “It may be true that the claim for attorney's fees was but principal action or remedy sought. If it is primarily for the recovery of a
an incident in the main case, still, it is not an escape valve from the sum of money, the claim is considered capable of pecuniary estimation,
payment of docket fees because as in all actions, whether separate and whether jurisdiction is in the municipal courts or in the courts of
or as an offshoot of a pending proceeding, the payment of docket first instance would depend on the amount of the claim. “
fees is mandatory. The docket fee should be paid before the court
would validly act on the motion.” However, where the basic issue is something other than the right to
recover a sum of money, or where the money claim is purely incidental
SUSON vs. COURT OF APPEALS - 278 SCRA 284 [August 21, 1997) to, or a consequence of, the principal relief sought, like in suits to have
FACTS: Mortz filed a case against Charles in Leyte. After filing, the the defendant perform his part of the contract (specific performance)
court dismissed the case because it should be filed in Cebu. Mortz and in actions for support, or for annulment of a judgment or to
wrote a letter to the Office of the Court Administrator (OCA) asking foreclose a mortgage, this Court has considered such actions as cases
that the docket fee paid in Leyte be considered applicable to Cebu. where the subject of the litigation may not be estimated in terms of
OCA granted his request. Charles questioned it because of the rule money, and are cognizable exclusively by courts of first instance.”
that the payment of docket fee is jurisdictional.
“The rationale of the rule is plainly that the secondclass cases, besides
HELD: “The OCA has neither the power nor the authority to exempt the determination of damages, demand an inquiry into other factors
any party not otherwise exempt under the law or under the Rules of which the law has deemed to be more within the competence of courts
Court in the payment of the prescribed docket fees. It may be of first instance, which were the lowest courts of record at the time that
noteworthy to mention here that even in the Supreme Court, there the first organic laws of the Judiciary were enacted allocating
are numerous instances when a litigant has had to re-file a petition jurisdiction.”
previously dismissed bythe Court due to a technicality (violation of
a pertinent Circular), and in these instances, the litigant is required “Actions for specific performance of contracts have been expressly
to pay the prescribed docket fee and not apply to the re-filed case pronounced to be exclusively cognizable by courtsof first instance and
the docket fees paid in the earlier dismissed case.” no cogent reason appears, and none is here advanced by the parties,
why an action for rescission (or resolution) should be differently
“In the case at bar, in the strict sense, Mortz’s complaint cannot be treated, a "rescission" being a counterpart, so to speak, of ‘specific
deemed to have been ‘re-filed’ in Cebu City because it was not performance’.”
originally filed in the same court but in the RTC Leyte. Thus, when
Mortz’s complaint was docketed by the clerk of court of the RTC “In both cases, the court would certainly have to undertake an
Cebu City, it became an entirelyseparate case from that dismissed investigation into facts that would justify one act or the other. No award
by the RTC of Leyte due to improper venue. As far as the case in Cebu for damages may be had in an action for rescission without first
is concerned, while undoubtedly the order of dismissal is not an conducting an inquiry into matters which would justify the setting aside
adjudication on the merits of the case, the order, nevertheless, is a of a contract. Issues of the same nature may be raised by a party against
final order.This means that when private respondent did not appeal whom an action for rescission has been brought, or by the plaintiff
therefrom, the order became final and executory for all legal intents himself.”
and purposes.”
“It is, therefore, difficult to see why a prayer for damages in an action
DE LEON vs. COURT OF APPEALS – 287 SCRA 94 [March 6, for rescission should be taken as the basis for concluding such action as
1998] one capable of pecuniary estimation
— a prayer which must be included in the main action if plaintiff is to be
FACTS: The question for decision is whether in assessing the docket compensated for what he may have suffered as a result of the breach
fees to be paid for the filing of an action for annulment or rescission
committed by defendant, and not later on precluded from recovering
of a contract of sale, the value of the real property, subject matter damages by the rule against splitting a cause of action and discouraging
of the contract, should be used as basis, or whether the action
multiplicityof suits.”
should be considered as one which is not capable of pecuniary
estimation and therefore the fee charged should be a flat rate of
“Thus, although eventually the result may be the recovery of land, it is
P400.00 as provided in Rule 141, Section 7(b)(1) of the Rules of Court.
the nature of the action as one for rescission of contract which is
controlling.”
Defendant argued that an action for annulment or rescission of a
contract of sale of real property is a real action and, therefore, the “Since the action of Plaintiff against Defendant is solely for
amount of the docket fees to be paid by Plaintiff should be based annulment or rescission which is not susceptible of pecuniary
either on the assessed value of the property, subject matter of the estimation, the action should not be confused and equated with
action, or its estimated value as alleged in the complaint. the ‘value of the property’ subject of the transaction; that by
the very nature of the case, the allegations, and specific prayer in
Since Plaintiff alleged that the land, in which they claimed an interest the complaint, sans any prayer for recovery of money and/or
as heirs, had been sold for P4,378,000.00 to defendant, this amount value of the transaction, or for actual or compensatory damages,
should be considered the estimated value of the land for the the assessment and collection of the legal fees should not be
purpose of determining the docket fees. intertwined with the merits of the case and/or what may be its
end result.”
Plaintiff countered that an action for annulment or rescission of a
contract of sale of real property is incapable of pecuniary estimation In Go vs. UCPB, GR No. 156182 Nov. 11, 2004 the court declared the
and, so, the docket fees should be the fixed amount of P400.00 in following as real actions:
Rule 141, Section 7(b). 3) judicial foreclosure of real estate mortgage;
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Amilhamja, Adj.
4) actions to annul real estate mortgage; declaration of ownership is not final. The question of ownership
for the reason that a real estate mortgage is a real right as well as a must be litigated in a separate action in the RTC.
real property. So an action to cancel or annul a real estate mortgage
Let us now proceed to the third paragraph of Section 33 as amended
necessarily affects title to the real property, hence a real action and
by R.A. 7691:
jurisdiction is determined by the assessed value of the property.
Real Actions other then Forcible Entry and Unlawful Detainer
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph [1]: [3] Exclusive original jurisdiction in all civil
actions which involve title to, or possession of,
“Provided further, That where there are real property or any interest therein where the
several claims or causes of actions between assessed value of the property or interest therein
the same or different parties, embodied in does not exceed Twenty thousand pesos
the same complaint, the amount of the (P20,000.00) or, in civil actions in Metro Manila,
demand shall be the totality of the claims in where such assessed value does not exceed Fifty
all the causes of action, irrespective of thousand pesos (P50,000.00) exclusive of
whether the causes of action arose out of interest, damages of whatever kind, attorney's
the same or different transactions.” fees, litigation expenses and costs: Provided,
That in cases of land not declared for tax
Under This rule, where there are several claims or causes of purposes, the value of such property shall be
actionsbetween the same or different parties, embodied in the determinedby the assessed value of the adjacent
same complaint, the amount of the demand shall be the totality lots. (Asamended by RA 7691)
of the claims in all the causes of action, irrespective of whether
the causes of action arose out of the same or different Aside from forcible entry and unlawful detainer, MTCs now have
transactions (Sec. 33 as amended by RA No. 7691; PANTRANCO jurisdiction over other real actions or actions involving title to or
North Express Inc. vs. Standard Insurance Company Inc., 453 SCRA possession, or any interest therein, like accion publiciana and accion
482). reinvidicatoria cases where the assessed value of the land should not
exceed P20,000. In Metro Manila, it is not exceeding P50,000 In cases
Q: When is a joinder of parties proper? of land not declared for taxation purposes, the value of such property
A: It is proper when there is a common question of fact and law. shall be determined by the assessed value of the adjacent lots.. That is
Note also that joinder of parties is permissive (Sec. 6, R3) the amendment brought about by RA 7691 which expanded the
Jurisdiction of the MTC in Forcible Entry and jurisdiction of the MTC.
UnlawfulDetainer Sec. 33[2] Exclusive original
jurisdiction over cases of forcible entry and An accion reivindicatoria is a suit which has for its object the recovery
unlawful detainer: of possession over the real property as owner. It involves recovery of
Provided, That when, in such cases, the ownership and possession based on said ownership.
defendant raises the question of ownership
in his pleadings and the question of An accion publiciana is one for the recovery of possession or the right
possession cannot be resolved without to possess. It is also referred to as an ejectment suit after the expiration
deciding the issue of ownership, the issue of of one year after the occurrence of the cause of action or from the
ownership shall be resolved only to unlawful withholding of possession of the realty. It is considered a
determine the issue of possession. x x x x” plenary action to recover the right of possession whendispossession is
effected by means other than unlawful detainer or forcible entry.
These are called accion interdictal and the only issue is physical
possession of the property. The two cases should not be confused Q: What is the Assessed value?
with accion publiciana which is also the recovery of possession. A: The assessed value of real property can have reference only to the
tax rolls in the municipality where the property is located, and is
In unlawful detainer, the plaintiff prays not only to eject the contained in the tax declaration. It is elementary that the tax
defendant but also to claim for back rentals or the reasonable declaration indicating the assessed value of the property enjoys the
amount of the use and occupation of the property in case of presumption of regularity as it has been issued by the proper
forcible entry. government agency (Hilario vs. Salvador, 457 SCRA 815).
Q: Suppose the unpaid rentals already amount to almost half a

million pesos, where should the case be filed? B.) DELEGATED JURISDICTION OF THE MTC
A: The case should still be filed with the MTC. What determines
jurisdiction is the nature of the action, and not the amount of Sec. 34. Delegated Jurisdiction in Cadastral and
recoverable rentals. Land Registration Cases. - MetTCs, MTCs and
MCTCs may be assigned by the Supreme Court
Q: In an action for forcible entry or unlawful detainer, can the to hear and determine cadastral or land
partypresent evidence of ownership? registration cases covering lots where there is
A: The general rule is NO because the MTC cannot adjudicate no controversy or opposition, or contested
ownership. That has to be threshed out in the proper civil action lots where the value of which does not exceed
in the RTC. But if evidence of ownership is presented in the One hundred thousand pesos (P100,000.00),
forcible entry or unlawful detainer case, it is only incidental and it such value to be ascertained by the affidavit
is only resolved to determine the issue of possession. Such of the claimant or by agreement of the
respective claimants if there are more than
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Amilhamja, Adj.
one, or from the corresponding tax jurisdiction because the offense may be a heinous one, but under the
declarations of the real property. Their law on criminal procedure you can file a petition for bail to have
decisions in these cases shall be appealable your temporary freedom while the case is going on. That’s supposed to
in the same manner as decisions of the be in the RTC.
RTCs. (As amended by RA 7691)
But suppose there is no available RTC judge, all of them are sick or all
As a rule cadastral and land registration of them are attending a convention (this actually happened in Davao in
casesfall under the jurisdiction of the RTC. 1990) Section 35 provides that the MTC, in the absence of RTC judges,
can hear and decide on habeas corpus case petitions and applications
Q: What is the difference between a land registration proceeding or petitions for bail in criminal cases.
and a cadastral proceeding?
That is allowed because of the urgency of the situation. There is no
A: Cadastral is compulsory registration.
need for a SC authorization. However, this is only allowed in the
absence of the RTC judges. But if the RTC judge comes back, he has
This is related to your study of Land, Titles and Deeds (The to take over the petition.
PropertyRegistration Decree). When you file a petition for land
registration, the object is to have your property registered and fall
under the Torrens System of the Land Registration.
Q: Now, what is this delegated jurisdiction all about?

A: It refers only to cadastral and land registration cases which
involve the titling of property under the Torrens system or cadastral
land registration.
Under the Property Registration Decree, only the RTC has authority
to entertain land registration and cadastral cases. But now, Section
34 gives the Supreme Court the authority to DELEGATE to MTCs to
hear and decide land registration and cadastral cases under the
following conditions:
1.) when there is no controversy or nobody is
contesting your petition; or
2.) even if the petition is contested where the value of
the land to be titled does not exceed P100,000.
In which case, these MTCs can decide and their decisions are
appealable directly to the CA because in exercise of delegated
jurisdiction it is acting as an RTC.
The value of the lot shall be ascertained by the affidavit of the

claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declaration of the real
property.
Now do not confuse this P100,000 (Section 34) with the P20,000
under Section 33. Section 34 deals with cadastral and land
registration cases. Section 33 involves civil cases (accion publiciana,
etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases.

- In the absence of all the Regional Trial Judges
in a province or city, any Metropolitan Trial
Judge, Municipal Trial Judge, Municipal Circuit
Trial Judge may hear and decide petitions for a
writ of habeas corpus or applications for bail
in criminal cases in the province or city where
the absent Regional Trial Judges sit.
This is what we call special jurisdiction. It only applies to two (2)

types of cases: (1) Habeas corpus and (2) hearing of petitions for
bail.
Remember that habeas corpus is not within the jurisdiction of the

MTC. It is with the RTC. In an application for bail the RTC also has
33
Amilhamja, Adj.
GENERAL PROVISIONS
What is an action?
Rule 1 An action is the legal and formal demand of one’s right from another
SECTION 1. Title of the Rules. These Rules shall person made and insisted upon in a court of justice. (Bouvier’s Law
be known and cited as the Rules of Court. Dictionary)
One party prosecutes another for the enforcement or protection of
The rule-making power of the SC has the following a right or the prevention or redress of a wrong.
limitations:
1) Simplified and inexpensive procedure for the What is a claim?
speedy disposition of cases; It is a right possessed by one against another. The moment said claim
2) Uniform for all courts of the same grade; and is filed before a court, the claim is converted into an action or suit.
3) Shall not diminish, increase or modify
substantive rights (Art. VIII Sec. 5[5], 1987 Action and suit
Constitution. In this jurisdiction, it is settled that the terms “action” and “suit”
are synonymous. (Lopez v. Compania de Seguros, 16 SCRA 855).
In the interest of just and expeditious
proceedings, the Supreme Court may Civil Action and Criminal Action
suspend the application of the Rules of A CIVIL ACTION is one by which a party sues another for the
Court and except a case from its operation enforcement or protection of a right, or the prevention or redress of
because the Rules wereprecisely adopted a wrong. (Sec. 3[a] Rule 1). So the purpose of a civil suit is to enforce
with the primary objective of enhancing or protect your right or to prevent or redress a wrong.
fair trial and expeditious justice. -If there is special rules for a particular action, then it is special civil
action.
SEC. 2. In what courts applicable. These Rules
shall apply in all the courts, except as otherwise A criminal action “is one by which the State prosecutes a person for
provided by the Supreme Court. an act or omission punishable by law” (Sec. 3[b] Rule 1)
Section 2, states in what court or courts the rules apply as it says It has been ruled that ”proceedings are to be regarded as criminal
“these rules shall apply in all the courts except as otherwise provided when the purpose is primarily punishment, and civil when the
by the Supreme Court.” Meaning, applicable to all courts except purpose is primarily compensatory…” (People vs. Godoy @$# SCRA
when the SC say otherwise. 64).
CLASSIFICATION OF CIVIL ACTION
For example: The SUMMARY RULES on procedure which is
I. As to NATURE (Section 3 [a])
applicable to some cases in the MTC.
a.) Ordinary Civil Actionsb.)
Special Civil Actions
Another example of when the SC says otherwise is Section 4, that
the rules shall not apply to election cases, land registration,
II. As to CAUSE or FOUNDATION:
cadastral, naturalization, insolvency proceedings and other cases
a.) Real Actions
not herein provided for except by analogy. This is actually not a
b.) Personal Actionsc.)
new provision. It used to be in Rule 143, now it is in Rule 1.
Mixed Actions
Sec. 3. Cases governed. These Rules shall
III. As to PLACE OF FILING
govern the procedure to be observed in
a.) Local Actions
actions, civil or criminal, and special
b.) Transitory Actions
proceedings.
IV. As to OBJECT
Rule 1 is the general provision for the entire Rules of Court. You
a.) Action In Personam
look at the title, “These rules shall be known as the ‘Rules of
b.) Action In Rem
Court.’” This is the common denominator from the first to the last
c.) Action Quasi In Rem
Rule. That’s why it says there ‘special proceedings,’ ‘civil cases’
and ‘criminal cases.’
xxxxx
CLASSIFICATION AS TO NATURE
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
(a) A civil action is one by which a
Civil action
party sues another for the
It is one by which a party sues another for the enforcement or protection
enforcement or protection of a right,
of a right. (Sec. 3(a), Rule 1)
or the prevention or redress of a
wrong.
f it is governed by the rules on ordinary civil action, then is it ordinary civil
action. If there is special rules for a particular action, then it is special civil
A civil action may either be ordinary or
action.
special. Both are governed by the rules
for ordinary civil actions, subject to the
The special civil actions are governed by Rules 62 to 71. Any action not
specific rules prescribed for a special
among those mentioned is automatically ordinary.
civil action.
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Amilhamja, Adj.
What are the special civil actions? CLASSIFICATION AS TO CAUSE OR FOUNDATION:

Rules 62 to 71: REAL, PERSONAL or MIXED ACTIONS
• Interpleader, Real Action
• Declaratory Relief, A REAL ACTION is briefly described as an action where the issue or the
• Certiorari, Prohibition, Mandamus, subject involved is title to, ownership, possession of or interest over a
• Quo Warranto, real property like accion publiciana, forcible entry, unlawful detainer,
• Expropriation, foreclosure of mortgage or real property, partition of real property.
• Foreclosure of Mortgage, (Sec. 1, R 4) (c.f. Section 19, BP 129 – controversy relates to real
• Partition, property)
• Forcible Entry, Unlawful Detainer and
• Contempt. It is founded on privity of real estate and filed in the court of the
place where the property or any part thereof is situated.
There is a new one – Review of Final Decisions or Resolutions of the • Unlawful detainer,
COMELEC and COA under Rule 64, but actually it says there, it is • accion publiciana,
governed by Rule 65 which governs Certiorari. • accion reinvindicatoria,
• action to quiet title,
Q: What is so important in distinguishing a special civil action from • reconveyance.
an ordinary civil action? Personal action
A: What makes an action special is simply because of the fact that All other actions or, when the issue is not one of those – meaning,it is
there are some specific rules prescribed for them which are not
founded on privity of contract, or on quasi-delict, such as actions for a
found in other rules. But to say that the rules on ordinary civil actions
sum of money, or damages arising from breach of a contract, or for the
do not apply to special civil actions is false. The law is very clear. Both enforcement or resolution of a contract, or for recovery of personal
are governed by the rules on ordinary civil actions subject to the property, these are the PERSONAL ACTIONS. (Casilan vs. Tomassi, 90
specific rules.
Phil. 765; Cachero vs. Manila Yellow Taxicab, 101 Phil. 523; Bautista vs.
Piguing, L-10006, Oct. 31, 1957)
Therefore, in case of conflict between the specific rule governing a
It is filed in the court where the plaintiff or any of the defendants
particular type of civil action and the ordinary, then you follow the resides, at the option of the plainitff.
specific provision. But if the rules on special civil actions are silent, • Breach of contract,
apply the ordinary rules. • sum of money,
Give an example of a case where in the absence of a special • recovery of personal property
provision in the rules on special civil actions the court had to apply
the rules on ordinary civil actions by analogy. The case of Mixed Action
Some textwriters give a third classification: the MIXED ACTIONS where
AMBERTI vs CA - 195 SCRA 659 [1991] there is a mixture of real and personal actions. Mixed actions are such
as pertain in some degree to both real and personal and, therefore, are
FACTS: This case involved a petition for certiorari (special civil action
properly reducible to neither of them, being brought for the specific
under Rule 65) and then before the respondent could answer the
recovery of land and for damages sustained in respect of such land.
petition, he withdrew the petition. Later on he changed his mind and
(Dela Cruz vs. Seminary of Manila, 18 P{hil. 330)
re-filed the petition. The question that was asked by the SC is when
you file a special civil action for certiorari and then before the other
Like an action for recovery of a piece of land with damages it is a mixed
party could answer you withdraw it, is the withdrawal with or without
action. However, it is more of real rather than personal. Ifthe damage
prejudice? Can you re-file it?
is only incidental, then it is more of a real action rather than a personal
There is no rule in Rule 65 answering that question so the SC had to
action like the case of TACAY.
resort to the ordinary rules by analogy.
HELD: Certiorari is similar to appeal although it is not really an appeal.
In a real action realty or an interest therein is the subject matter of the
And the SC looked at the law on appeal. What happens when you
action.
perfect your appeal and then later on you withdraw your appeal?
What will happen to the order or judgment? Rule 50 says that if you
However, not every action involving a real property is a real action
withdraw the appeal, the judgment appealed from will now become
because the realty may only be incidental to the subject matter of the
final and executory. Therefore, since it is now final and executory,
suit. To be a “real” action, it is not enough that the action must deal
you cannot change it anymore.
with real property. It is important that the matter in litigation must also
involve any of the following issues: title to, ownership, possession,
“Applying the foregoing rules in a supplementary manner (or by
partition, foreclosure of mortgage or any interest in real property.
analogy), upon the withdrawal of a petition in a special civil action
before the answer or comment thereto has been filed, the case shall
Examples:
stand as though no appeal has been taken, so that the judgment or
• An action for damages to real property, while involving a real
order of the lower court being questioned becomes immediately final
property, does not involve any of the issuesmentioned.
and executory. Thus, a resolution granting the withdrawal of such a
petition is with prejudice and petitioner is precluded from bringing a • An action to recover possession of real property plus
second action based on the same subject matter.” damages is a real action because possession of the real
property is involved. The aspect of damages is merely an
Now, there are other classifications of civil actions which are not incidental part of the main action, i.e., recovery of
expressly stated in Section 3. The only one stated there is ordinary possession of real property. However, an action to recover
and special. possession of a personal property is a personal action.
• Where the allegations as well as of the complaint do not
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Amilhamja, Adj.
claim ownership of the lots in question or ask for enforcement of a contract or the recovery of damages. In
possession of the same but instead seeks for the contrast, in a real action, the plaintiff seeks the recovery of real
execution of a deed of sale by the defendants in favor of property, or, as indicated in Section 2(a), Rule 4 of the then Rules
the plaintiff, the action is a personal action. (Adamos v. J. of Court, a real action is an action affecting title to real property
M. Tuazon & Co., Inc. 25 SCRA 529) or for the recovery of possession, or for partition or
condemnation of, or foreclosure of mortgage on, real property
• An action for specific performance is a personal action
(Chua vs. Total Office Products and Services [Topros], Inc.,471
aslong as it does not involve a claim of or recovery of
SCRA 500).
ownership of real property. (Siosoco v. CA, 303 SCRA
186citing La Tondena Distillers v. Ponferrada, 264 SCRA • Although the main relief sought in the action is the delivery of
540) – BAR Q’s usually revolve around this the certificate of title, said relief, in turn depends upon who,
between the parties, has a better right to the lot in question. It
However, where a complaint is denominated as one of specific is not possible for the court to decide the main relief without
performance but nonetheless prays for the issuance of a deed of sale for passing upon the claim of the parties with respect to the title to
a parcel of land for the plaintiff to acquire ownership of the land, its and possession of the lot in question. The action is a real action
primary objective and nature is one to recover the parcel of land itself (Espineli vs. Santiago 107 Phil 830).
and thus, is deemed a real action. (Gochan v. Gochan, 372 SCRA 356) • Where the sale is fictitious, with absolutely no consideration, it
should be regarded as a non-existent contract. There being no
Where the complaint is denominated as one for specific contract between the parties, there is nothing in truth to annul
performance, but nonetheless prays for issuance of a deed of sale of a by action. The action, therefore, cannot be an action for
land to enable the plaintiff to acquire ownership thereof, its primary annulment but one for recovery of a fishpond, a real action
objective and nature is one to recover the parcel of land itself and thus, (Pascual vs. PASCUAL 73 Phil. 561).
is deemed a real action. (Gochan vs. Gochan, 372 SCRA 256)
Specified Contractors & Development, Inc., vs. Pobocan, GR No.
The action is for the return of the property or its value on the 212472, January 11, 2018
basis of co-ownership. The Court held that while the complaint of the -Petitioner and respondent agreed that for every condominium
petitioner is for the recovery of the property or its value, the said building that respondent built for petitioner, respondent would be
complaint is actually anchored on plaintiffs’ claim of ownership over a entitled to one (1) unit thereof as part of the respondent’s
portion of the real property of the subject property. Hence, a real action. compensation. Respondent was able to build two (2) condominium
(Samson vs Sps. Gabor, GR No. 182970, July 23, 2014) units. However, petitioner refused to execute deed of conveyance in
order for the respondent to transfer ownership over said two (20)
• If the action is denominated as one for specific performance, condominium units.
but the plaintiff actually seeks for the issuance of a deed of — Respondent filed an action for specific performance in the RTC
assignment in his favor of certain shares of stocks to regain where he resides. The petitioner filed a motion to dismiss on ground of
ownership and possession of said shares, the action is not lack of jurisdiction as the action is real action and should have been filed
one for specific performance but a personal action for the in the RTC where the real property is situated.
recovery or property. The docket fee therefore, should be — What is the nature of the action?
computed based on the value of the property and not based >That the end result would be the transfer of the subject units to
on the docket fee for specific performance (National Steel respondent's name in the event that his suit is decided in his favor is
Corporation vs. CA 302 SCRA 522). "an anticipated consequence and beyond the cause for which the
• Where it is alleged in the complaint that the defendant action [for specific performance with damages] was instituted."
breached the contract so that the plaintiff prays that the —Had respondent's action proceeded to trial, the crux of the
contract be rescinded and that the defendant be ordered to controversy would have been the existence or non-existence of the
return possession of the hacienda to the plaintiff, the alleged oral contract from which would flow respondent's alleged right
ultimate purpose or end of the action is to recover possession to compel petitioners to execute deeds of conveyance. The transfer of
of real property and not a mere breach of contract (De Jesus property sought by respondent is but incidental to or an offshoot of the
vs. Coloso 1 SCRA 272) determination of whether or not there is indeed, to begin with, an
• Where the action to annul or rescind a sale of real property agreement to convey the properties in exchange for services rendered.
has as its fundamental and prime objective the recovery of
real property, the action is real (Emergency Loan Pawnshop Pacific Rehouse Corp. vs. Ngo, GR No. 214934, April 12, 2016
Inc. vs. CA 353 SCRA 89).* - Petitioner entered into Deed of Conditional Sale with Bautista.
• Where an award of a house and lot to the plaintiff was Petitioner complied with his obligation but Bautista failed to execute to
unilaterally cancelled, an action that seeks to annul the corresponding deed of absolute sale and deliver the certificate of title
cancellation of the award over the said house and lot is a to petitioner. Consequently, petitioner filed a complaint for specific
personal action. The action does not involve title to performance and damages against Bautista. It also caused the
ownership or possession of real property. The nature of the annotation of the notice of lis pendens on the certificate of title of the
action is one to compel the recognition of the validity of the land in the name of Bautista. While the case is pending Bautista died.
previous award by seeking a declaration that the cancellation -The issue in this case is whether or not the case should be dismissed
is null and void. (Hernandez v. DBP, 71 SCRA 290)* on account of Bautista’s death as it is an action that does not survive as
• An action to foreclose a real estate mortgage is a real action, it is personal to Bautista.
but an action to compel the mortgagee to accept payment of >In the instant case, although the case involves a complaint for specific
the mortgage debt and to release the mortgage is a personal performance and damages, a closer perusal of petitioner's complaint
action. (Hernandez v. Rural Bank of Lucena, Inc. 81 SCRA 75) reveals that it actually prays for, inter alia, the delivery of ownership of
• An action to annul a contract of loan and its accessory real the subject land through Bautista's execution of a deed of sale and the
estate mortgage is a personal action. In a personal action, the turnover of TCT No. T-800 in its favor. This shows that the primary
plaintiff seeks the recovery of personal property, the objective and nature of case is to recover the subject property itself and
36
Amilhamja, Adj.
thus, is deemed to be a real action. In personam action

— Thus, if the claim in an action affects property and property rights, “If the technical object of the suit is to establish a claim
then the action survives the death of a party-litigant. generally against some particular persons, with a judgment
which, in theory, at least, binds his body or to bar some
CLASSIFICATION AS TO PLACE OF FILING individual claim or objection, so that only certain persons are
entitled to be heard, the action is IN PERSONAM.” (Grey Alba
LOCAL ACTIONS and TRANSITORY ACTIONS
vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
LOCAL ACTION is an action which can only be instituted in a An example is an action for specific performance; action for
particular place. breach of contract
Good examples of local actions are real actions. Real actions are
also automatically local actions. They can only be instituted in the In rem action
place where the property is situated. This is already provided But, “if the object of the suit is to bar indifferently all who
bylaw (e.g. accion publiciana, forcible entry, unlawful detainer – might be minded to make an objection of any sort against the
can only be filed where the land is situated.) rights sought to be established, and if anyone in the world has
a right to be heard on the strength of alleging facts which, if
TRANSITORY ACTIONS are those which follow the party wherever true, show an inconsistent interest, the action is IN REM.”
he may reside. (1 Am. Jur. 430) Personal actions are transitory – (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81
its filing is based on where the plaintiff or where the defendant Phil. 421)
resides at the option or election of the plaintiff. It is based on the
residence of the parties. An example is a probate proceeding, cadastral proceeding.
The purpose of a proceeding in personam is to impose through
CLASSIFICATION AS TO OBJECT OR PURPOSE the judgment of a court, some responsibility or liability
The distinction between a real action and a personal action is directly upon the person of the defendant (Domagas vs.
important for the purpose of determining the venue of the action. Jensen 448 SCRA 663)
Questions involving the propriety or impropriety of a particular
venue are resolved by initially determining the nature of the action, Examples:
i.e., if the action is personal or real. A) An action for sum of money;
B) An action for damages.
A real action is “local”, i.e., its venue depends upon the location of In an action in personam, no other than the defendant issought
the property involved in the location. “Actions affecting title to or to be held liable, not the whole world.
possession of real property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction over the area To simplify the definition:
wherein the real property involved, or apportion thereof is ACTION IN PERSONAM is one where the purpose is to bind the parties
situated.” (Sec. 1 Rule 4) or where any judgment that the court will render in that case binds only
the parties to the action and their privies or their successors-in-interest.
A personal action is ‘transitory,’i.e., its venue depends upon the
residence of the plaintiff or the defendant at the option of the ACTION IN REM is one where the purpose is to bind any and everyone
plaintiff. A personal action “may be commenced and tried where the or where the judgment which the court will render in the case binds
plaintiff or any of the principal plaintiffs resides or where the not only the parties to the case but the whole world, then the action is
defendant or any of the principal defendants resides, or in the case in rem.
of a non-resident defendant, where he may be found, at the election
of the plaintiff.” (Sec. 2 Rule 4). May an action in personam be at the same time a real action?
>Yes, it the action will impose personal liability on a person with respect
Hence, if the question involves the venue of an action, the analysis to a particular real property (Munoz vs. Yabut, 650 SCRA 344).
will necessarily involve the following steps:
(a) A determination whether the action is real or personal CHING vs. CA – 181 SCRA 9
(b) An application of the rules on venue under Rules 4.
HELD: “Actions in personam and actions in rem differ in that the former
Thus, an action for a sum of money, instituted by a resident of are directed against specific persons and seek personal judgments,
Manila against a resident of Quezon City, shall be filed either in while the latter are directed against the thing or property or status of a
Manila or Quezon City at the election of the plaintiff because the person and seek judgments with respect thereto as against the whole
action is personal. world.”
An action to annul a sale of a land located in Baguio City where Action in personam
recovery of ownership is essentially the material issue in the case, EXAMPLE: An action for the Recovery of land or accion publiciana.
must be filed in Baguio City. The action is a real action and must be
filed in the place where the property is situated regardless of the The case is filed by P against D and after trial the court rendered
residence of the parties (Emergency Loan Pawnshop Inc. vs. CA 353 judgment in favor of P ordering D to deliver the land to P. But here
SCRA 89). comes X claiming the same property. Is X barred from making his claim
because the court, in the case of P vs. D already declared that P is
entitled to the property? Is X bound by that judgment?
CLASSIFICATION AS TO OBJECT
A: NO, because X is not a party to that case. She cannot be bound by
ACTIONS IN PERSONAM, IN REM and QUASI IN REM
a judgment where she is not a party. Hence, the action betweenP and
ACTIONS IN PERSONAM vs. ACTIONS IN REM
D is an action in personam.
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Amilhamja, Adj.
Action in Rem 7) An action for specific performance is an action in personam

(Jose vs. Boyon 414 SCRA 217). An action for specific
1) Action for annulment of marriage or declaration of nullity performance and/or rescission is not an action in rem
of marriage. Suppose the husband (H) files a case against his (Gomez vs. CA 425 SCRA 98).
wife (W) to annul their marriage. After trial, the court
rendered judgment annulling the marriage and it became 8) A cadastral proceeding is an action in rem (In Re Estate of
final. So the parties are now both SINGLE. Johnson 39 Phil. 156).
H meets another girl, A, and courted her and proposed
marriage. 9) A land registration proceeding is an action in rem. Hence, the
failure to give a personal notice to the owners or claimants
Can A say the she cannot marry H because I know you are of the land is not a jurisdictional defect. It is the publication
married and as far as I am concerned I am not bound by of such notice that brings in the whole world as a party in the
the judgment of annulment in the case between P and case and vests the court with jurisdiction (Adez Realty Inc. vs.
D because she was a not a party therein? When the court CA 212 SCRA 623; Ting vs. Heirs of Diego Lirio 518 SCRA 263).
ruled in the case between H and W that the marriage is
annulled is that judgment binding only on H and W, the 10) An action to recover real property is a real action. It is
parties therein however, also an action in personam for it binds only a
particular individual (Republic vs. CA 315 SCRA 600)
A: No it binds the whole world or anybody.
2) When an illegitimate child files a case against the father,

for compulsory recognition and got a favorable judgment QUASI IN REM
his/her status as a recognized child is not only binding on Text writers gave a sort of third classification as to object. This is called
his/her father but is binding on the whole world. action quasi in rem. “QUASI” means almost. So, ‘quasi in rem’ is almost
in rem. Actually, it is in personam but almost in rem.
Take note that an action in rem and in personam have
often been confused with the classification of real and Q: Define an action quasi in rem.
personal action, that an action in personam is also a A proceeding to subject the interest of a named defendant over a
personal action, or, when an action is in rem it is also a real particular property to an obligation or lien burdening it. Judgmentis
action. binding upon particular persons.
It is wrong. The basis of the classification is different. An An action quasi in rem is actually in personam because it is directed only
action could be as to cause or basis a real action. As to against a particular individual but the purpose of the proceeding is to
object, it could be in personam. In the same manner, it
subject his property to the obligation or lien burdening it. The object of
could be a personal action but an action in rem. the case is the sale or other disposition of property of the defendant
over which you have a right or lien over the property.
3) E files a case against C to recover the possession of a piece
of land. It is a REAL action because the subject is An action quasi in rem is one wherein an individual is named as
possession or ownership of real property. But because the defendant and the purpose of the proceeding is to subject his interest
purpose is to bind only E and C it is also an action IN thereof to the obligation or lien burdening thje property (Asiavest
PERSONAM. It is a real action as to cause, but as to object, Limited vs. CA 296 SCRA 539).
it is in personam.
The object of an action quasi in rem is the sale or disposition of the
4) P filed a case to annul his marriage with his wife D. It is a property whether by attachment, foreclosure or any other form of
PERSONAL action because it does not involve title to, remedy (Banco Espanol-Filipino vs. Palanca 37 Phil. 921).
ownership etc., of his real property. It is about status. But
itis also IN REM because the judgment therein is binding — It is an action where an individual is named as defendant and the
against the whole world. purpose of the proceeding is to subject his interest therein to the
obligation or lien burdening the property. Exs. Complaint with
5) An action for ejectment is a real action because it involves attachment, foreclosure actions, action for partition, action for
the issue of possession of real property. It is also, accounting.
however, an action in personam because the action is
directed against a particular person who is sought to be De Pedro vs. Romasan Development Corp. GR No. 194751, November
held liable (Sec. 1 Rule 4; Domagas vs. Jensen 448 SCRA 26, 2014
663) —An action for annulment of title is a quasi in rem. It is not an action
against a person on the basis of his personal liability but an action that
6) An action for delaration of nullity of a marriage is a subjects a person’s interest over a property to a burden. The action for
personal action (Tamano vs. Ortiz 291 SCRA 584; annulment of a certificate of title threatens petitioner’s interest in the
Romualdez-Licaros vs. Licaros 401 SCRA 762) because it is property.
not founded on real estate. It is also in rem action because
the issue of the status of a person is one directed against Examples of actions quasi in rem:
the whole world. One’s status is a matter that can be set (a) Action for partition;
up against anyone in the world. On the other hand, an (b) Action for accounting.
action for damages is both a personal and in personam (c) Such actions are essentially for the purpose of affecting the
action.
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Amilhamja, Adj.
defendant’s interest in the property and not to render a Please take NOTE:
judgment against him (Valmonte vs. CA 252SCRA 92); —Summons by publication, as a general rule, will not enable the
(d) attachment; court to acquire jurisdiction over the person of the defendant
(e) foreclosure of mortgage (Banco Espanol Filipino vs. (Pantaleon vs. Asuncion, 105 Phil. 761, 765; Citizens Surety &
Palanca 37 Phil. 921; Sahagun vs. CA 198 SCRA 44). Insurance Co., vs. Melencio-Herrera, 38 SCRA 369; Magdalena
Estate vs. Nieto, 125 SCRA 758).
ILLUSTRATION: An action to foreclose a mortgage is the best
example of a civil action quasi in rem because there is a defendant
(mortgagor) and the object of the case is to have the property CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
mortgaged sold or disposed of in order to satisfy the mortgage lien Q: Define a special proceeding.
of the mortgagee. It is in personam because it is directed only A: Rule 1, Section 3 [c]:
against the person who mortgaged to you but once the property is
foreclosed, practically everybody has to respect it. That’s why it is c) A special proceeding is a remedy by which
called quasi in rem. a party seeks to establish a status, a right, or
a particular fact. (2a, R2)
Or, to borrow the language of the SC in simplifying the term quasi in
rem, quasi in rem means ‘against the person in respect to the res, Special proceedings should not be confused with a civil action.
against the mortgagor in respect to the thing mortgaged.’ Special Proceedings are governed by Rules 72-109 of the Rules of
Court.
Importance of the distinction
It determines whether the court must acquire jurisdiction over the Distinguish a civil action from a special proceeding.
person of the defendant and thus determine the mode of serving
summons.If the action is in personam the court must acquire A: The following:
jurisdiction over the person of the defendant, thru personal service
of summons. Service of summons by publication is not allowed.But 1.) A CIVIL ACTION is one by which a party sues another
if it is in rem jurisdiction over the person of the defendant isnot for the enforcement or protection ofa right, or
required hence service of summons by publication is sufficient.such the prevention or redress of a wrong, whereas,
is also true to quasi in rem action. What is important is that the court
acquires jurisdiction over the res. A SPECIAL PROCEEDING is a remedy by which aparty
seeks to establish a status, a right, or a
Gomez vs. CA, 425 SCRA 98,103 particular fact;
— To resolve whether there was valid service of summons on
respondents, the nature of the action filed against them must first 2.) In a civil action, there are two (2) definite and
be determined. As the Court explained in Asiavest Limited vs. particular adverse parties, the party who
Court of Appeals (G.R. No. 128803, September 25, 1998, 296 SCRA demands a right, called a plaintiff, and the
539, 552), it will be helpful to determine first whether the action other whom the right is sought, called a
is in personam, in rem, or quasi in rem because the rules on defendant, whereas,
service of summons under Rule 14 of the Rules of Court of the
Philippines apply according to the nature of the action. In a SPECIAL PROCEEDING, while there is a definite
party petitioner, there is no definite adverse
Is notice or summons required in in rem and quasi in rem party as the proceeding is usually considered to
actions? be against the whole world;
— YES. Regardless of the nature of the action, proper service of
summons is imperative. A decision rendered without proper 3.) A CIVIL ACTION requires the filing of formal pleadings,
service of summons suffers a defect in jurisdiction. Respondent's whereas
institution of a proceeding for annulment of petitioner's
certificate of title is sufficient to vest the court with jurisdiction In a SPECIAL PROCEEDING, relief may be obtained
over the res, but it is not sufficient for the court to proceed with by mere application or petition;
the case with authority and competence (De Pedro vs. Romasan
Development Corp.GR No. 194751,November 26, 2014). 4.) The period to appeal in CIVIL ACTIONS is generally
15 days and the requirement is the filing of a
May an in rem or quasi in rem action be converted to action in notice of appeal, whereas
personam?
— YES. "If the defendant appears, the cause becomes mainly a In SPECIAL PROCEEDINGS the period to appeal is 30
suit in personam, with the added incident, that the property days and aside from notice of appeal, the law
attached remains liable, under the control of the court, to answer requires the filing of a record on appeal.
to any demand which may be established against the defendant
by the final judgment of the court. But, if there is no appearance Of course, the basic distinction is found in Section 3 – a civil action is
of the defendant, and no service of process on him, the case one by which a party sues another for the enforcement or protection
becomes, in its essential nature, a proceeding in rem, the only of a right, or the prevention or redress of a wrong. Whereas, a special
effect of which is to subject the property attached to the payment proceeding is a remedy by which a party seeksto establish a status, a
of the demand which the court may find to be due to the plaintiff." right, or a particular fact.
(Banco- Espanol vs. Palanca, 37 Phil. 921, citing Cooper vs.
Reynolds, 10Wall., 308). The object of a civil action is to enforce or protect a right or to prevent
or redress a wrong. But the object of a special proceeding is only to
establish a status, a right or a particular fact.
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Amilhamja, Adj.
If a creditor sues the debtor to collect an unpaid loan, is that a civil There are some election cases which fall within the jurisdiction of the
action or a special proceeding? That is a civil action because the courts, not necessarily COMELEC. For example, violation of election
creditor wants to enforce or protect his right to collect. The creditor code where the party may be adjudged to go to jail. That is a criminal
is compelling the debtor to pay. It is adversarial. case. That is governed by the rules on criminal procedure. It is more
on imprisonment.
A good example of a special proceeding is a petition for ADOPTION.
It is a special proceeding because the purpose is to establish a status Sec. 5. Commencement of an action. - A civil
of paternity and filiation between the adopter and adopted who may action is commenced by the filing of the
not be related to each other. original complaint in court. If an additional
defendant is impleaded in a later pleading, the
What is adoption? action is commenced with regard to him on
This is how an author describes it. the date of the filing of such later pleading,
“Adoption is one of the sacred mysteries of irrespective of whether the motion for its
the law. It concerns the making of a natural admission, if necessary, is denied by the court.
person as a legitimate child of another person (6a)
without the intervention of sex. A man
becomes a father of the child he did not sire. Q: When is a court action deemed commenced?
A woman becomes the mother of a child she A: A civil action is commenced by the filing of the original complaint
did not bear. It is through the magic or fiction in court. Of course, this is not really complete. The filing of the
of the law that adopters become parents of original complaint in court must be accompanied by the payment of
children unrelated to them by blood, or if the correct docket fee. A complaint is not deemed filed until the
related, the relationship is one of illegitimacy.” docket fee is paid. This is important to determine the exact date that
the action has commenced because it is from that moment that the
So you can adopt you own illegitimate child for the purpose of running of the prescriptive period is interrupted.
improving his status. So, when you file a petition for adoption, you
are not suing somebody to enforce or protect a right or prevent or Civil actions are deemed commenced from the date of the filing
redress a wrong. The purpose is to create a status of parent and child and docketing of the complaint, without taking into account the
between 2 people who are not related to each other. issuance and service of summons (Cabrera vs. Tiano, GR No. L-
17299, July 31, 1963).
And when you file a petition for adoption, you are not filing a case If the complete amount of the docket fee is not paid, the prescriptive
against anybody. The case is not a fight between two parties. There period continues to run as the complaint is deemed not filed (Feria,
is a petitioner, the one who files, but there is no definite defending 2001, p. 208)
party. But it is directed against the whole world because once the
adoption is granted, then, as far as the whole world is concerned,
An action can be commenced by filing the complaint by registered mail,
they have to respect the status of the adopted as a child of the
in which case, it is the date of mailing that is considered as the date of
adopter. It is in rem. Generally, special proceedings are in rem.
filing and not the date of the receipt thereof by the clerk of court.
But since it is directed against the whole world, anyone in the world
The second sentence of Section 5 states that, “If an additional
can come forward and oppose the petition, hence, publication is
defendant is impleaded in a later pleading, the action is commenced
required. There is no particular person as defendant but in reality,
with regard to him on the date of the filing of such later pleading…”
anybody in the world can come forward and oppose
it. That's the difference between a special proceeding and a civil Example: Today (November 19, 1997), I filed a complaint against A. So,
action. the action is commenced on Nov. 19, 1997. However next month, say,
December 19, if there is an additional defendant, the date of the
Sec. 4. In what cases not applicable. - These commencement of the action with regards to the additional defendant
Rules shall not apply to election cases, land is not the date when the original action is filed, but on the date when
registration, cadastral, naturalization and he was included in the amended pleading.
insolvency proceedings, and other cases not
herein provided for, except by analogy or in How do you interpret or construe the Rules of Court?
a suppletory character and whenever
practicable and convenient. (R143a) Sec. 6. Construction. - These Rules shall be
liberally construed in order to promote their
The Rules of Court do not apply to certain proceedings in court. objective of securing a just, speedy and
inexpensive disposition of every action and
Q: What court proceedings where the Rules of Court are not proceeding. (2a)
applicable?
A: Election cases, land registration cases, cadastral cases, The purpose of Procedural Law is to hasten litigation. So you do not
naturalization cases, insolvency proceedings, and other cases not interpret it to prolong a case. That is based on the principle of liberal
herein provided for except by analogy of for suppletory purposes. construction.
In these cases, the Rules of Court are suppletory in character. In Cases should, as much as possible, be determined on the merits after
case of conflict between election law and the Rules of Court, the parties have been given full opportunity to ventilate their causes
forget the Rules of Court. But when the Election Code is silent, you and defenses, rather than on technicality or some procedural
apply the Rules of Court by analogy or for suppletory purposes. imperfection. After all, technical rules of procedure are not ends in
40
Amilhamja, Adj.
themselves but are primarily devised to help in the proper and 3) service of summons
expedient dispensation of justice. In appropriate cases, therefore,
the rules may be construed liberally in order to meet and advance
the cause of substantial justice (Land Bank vs. Celad, GR No. 164876,
Jan. 23, 2006)
DE GUZMAN vs SANDIGANBAYAN - 256 SCRA 171

HELD: “The Rules of Court was conceived and promulgated to set
forth guidelines in the dispensation of justice but not to bind and
chain the hand that dispenses it, for otherwise, courts will be mere
slaves to or robots of technical rules, shorn of judicial discretion. That
is precisely why courts in rendering real justice have always been, as
they in fact ought to be, conscientiously guided by the norm that
when on the balance, technicalities take a backseat against
substantive rights, and not the other way around. Truly then,
technicalities, should give way to the realities of the situation.”
So, the purpose of procedure is to help the hand that dispenses
justice and not to tie these hands. Otherwise, the courts will
become mere robots. And, as much as possible, courts should avoid
technicalities to give way to the realities of the situation.
In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s

thrust.” (Alonzo vs. Villamor, 16 Phil. 315)
That’s why the SC said in another case:
SANTOS vs. CA – 198 SCRA 806

HELD: Procedural “rules are not intended to hamper litigants or
complicate litigation but, indeed, to provide for a system under which
suitors may be heard in the correct form and manner and at the
prescribed time in a peaceful confrontation before a judge whose
authority they acknowledge. The other alternative is the settlement
of their conflict through the barrel of a gun.”
Meaning, the purpose of the rules is for people to fight each other in
a civilized way. If you cannot accept the judicial system, what is your
alternative? The only alternative is to shoot your opponent. We will
settle our conflict through the barrel of a gun.
For all its shortcomings and its defects, the judicial system is still
the civilized way of dealing with your opponent.
BAR QUESTION: When may lapses in the literal observance in the

Rules of Court be excused?
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL – 77 Phil. 523
HELD: Lapses in the literal observance of a rule of procedure will be
overlooked:
1) when they do not involve public policy;
2) when they arose from an honest mistake or unforeseen
accident;
3) when they have not prejudiced the adverse party;
and
4) when they have not deprived the court of itsauthority.
One final note, while it is true that the Rules of Court should be
liberally construed as a general rule, there are certain provisions
which according to the SC, should be strictly construed because they
were intended precisely to minimize delay. These are provisions on:
1) reglementary periods;
2) rule on forum shopping;
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Amilhamja, Adj.
ORDINARY CIVIL ACTIONS

Rule 2 a.) The existence of a contract, and
b.) The breach of the contract. (Calalas v. CA SCRA 356; FGU
CAUSE OF ACTION
Insurance Corp. v. GP Sarmeinto Trucking Corp. 386 SCRA
312)
SECTION 1. Ordinary civil actions, basis of. -
Every ordinary civil action must be based on a Thus, if a carrier is sued based on a breach of contract of carriage,
cause of action. (n) negligence need not be proved by the plaintiff, negligence not being
an element of the cause of action of a suit predicated on a breach of
Section 1 of Rule 1 is entitled cause of action. Section 1 expresses contract. This is true whether or not the defendant is a public or a
the principle that every ordinary civil action must be based on a private carrier. However, where the defendant is a common carrier
cause of action. In other words, there cannot be a case unless you there is an additional reason for dispensing with proof of negligence,
have a cause of action. i.e., negligence of the common carrier is presumed. (Art. 1735 & Art.
1756 CC)
Sec. 2. Cause of action, defined. - A cause of
action is the act or omission by which a party In quasi delict, negligence, as an element, must be alleged and
violates a right of another. (n) proved. (Art. 2176 CC) but the negligence of those persons described
under Art. 2180 of the Civil Code, although based on quasi delict is
Q: Define cause of action. presumed.
A: CAUSE OF ACTION is an act or omission by which a party violates
a right of another. Under Art. 2180, following the well-recognized doctrine of vicarious
liability, certain persons like the father, mother, guardian, owners
ELEMENTS OF A CAUSE OF ACTION and managers of an establishment or enterprise, employee, the
There are 3 main elements: State, and teachers or heads of establishments of arts and trades are,
under specified conditions, liable for acts of persons for whom they
1) Existence of legal right in favor of the plaintiff by whatever are responsible.
means and under whatever law it arises or is created;
Thus, an employer for instance, is liable for the damage caused by
2) a correlative obligation on the part of the named his employees and household helpers acting within the scope of their
defendant to respect and not to violate such right; and assigned tasks. The employer’s negligence in the selection and
supervision of his employee is presumed and his liability shall only
3) an act or omission on the part of such defendant in cease if he successfully proves his observance of the diligence
violation of the right of the plaintiff or constituting a required of a good father of a family to prevent damage.
breach of the obligation of the defendant to the plaintiff
for which the latter may maintain action for recovery of When an injury is caused to another by the negligence of the
damages or other appropriate relief. employee there instantly arises the juris tantum presumption oflaw
that there was negligence on the part of the employer either in
Briefly stated, it is the reason why the litigation has come about, it is
the selection or in the supervision, or both of the employee. The liability
the act or omission of defendant resulting in the violation of
of the employer is direct and immediate and is not conditioned upon a
someone’s right. (Phil. National Construction v CA, 514 SCRA 569;
prior recourse against the negligent employee and a prior showing of
Agrarian Reform Beneficiaries Association v. Nicolas GR No. 168394,
the insolvency of such employee. Therefore, it is incumbent upon the
Oct. 6, 2008)
employer to prove his exercise of diligence of a good father of a family
in the selection and supervision of the employee (Manliclic vs. Calaunan
There is a fourth element added by some cases and commentators
GR No. 150157January 25, 2007)
– the element of damage suffered by the plaintiff.
Where the cause of action rests on a promissory note, filing the action
Even if there is violation, if there is no damage, then what relief are before the due date of the obligation would be premature because the
you asking for? There can be no action where no damage is obligation is one with a period. Whenever a period is designated in an
sustained. obligation, the obligation becomes demandable only when the period
arrives. Such period is presumed to be for the benefit of both parties
As a matter of fact, in a recent case, the SC remarked that wrong or and of course, also of the debtor. He cannot be charged before the due
injury without damage or damage without wrong does not date (Art. 1196, Civil Code) unless he loses the right to make use of the
period (Art. 1198, Civil Code).
Cause of Action not an issue in administrative cases
While the existence of a cause of action is one that is essential to In an unlawful detainer case, the cause of action does not accrue unless
the existence of a civil action, in administrative cases however, the there is a demand to vacate and is not complied with. If, however, the
issue is not whether the complainant has a cause of action against suit is based on expiration of the lease, notice and demand are not
the respondent, but whether the respondent has breached the required. (Labastida v. CA, 287 SCRA 662)
norms and standards of the office. (Mutia v. Purisima, 494 SCRA
448) *Elements of Cause of Action (ROViD)
• Right pertaining to plaintiff
Cause of Action in Specific Cases • Correlative Obligation of the defendant
In breach of contract cases, a cause of action does not require an • Violation of plaintiff’s right
allegation of the negligence of the defendant but merely the • Damage suffered by plaintiff
following elements:
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Amilhamja, Adj.
Illustration Q: Define right of action.

• Contract of Loan A: Right of action is the right of the plaintiff to bring an action and to
• Culpa Aquiliana prosecute that action to final judgment. (Marquez vs. Varela, 92 Phil.
• Contract of Sale 373)
• Contract of Lease It is the right of a person to commence and prosecute an action to
obtain the relief sought.
Contract of Loan
• Right to > collect Q: What are the ELEMENTS of a right of action?
• Obligation > to pay A: There are three elements:
• Violation > none payment 1.) the plaintiff must have a good cause of action;
• Damage > cannot get back his money 2.) must be instituted by the proper party; and,
3.) he/she must have performed all conditionsprecedent
Culpa Aquiliana to the filing of the action.
• Right > to be safe So, you cannot have a right of action unless you first have a cause of
• Obligation > to be diligent action. That is why the SC said in the case of
• Violation > due to negligence, plaintiff was injured DE GUZMAN, JR. vs. CA – 192 SCRA 507
• Damage > hospitalization expenses HELD: “The right of action springs from the cause of action, but does not
accrue until all the facts which constitute the cause of action have
Contract of Sale occurred. When there is an invasion of primary rights, then and not until
• Right > to be paid or demand delivery then does the adjective or remedial law become operative, and under it
• Obligation> to pay or deliver arise rights of action. There can be no right of action until there has been
• Violation > did not pay or deliver a wrong – a violation of a legal right – and it is then given by the adjective
• Damage > did not receive the price or the thing sold law.”
So, there can be no right of action until there has been a wrong, a
violation of a legal right. There can be no right of action unless there is
Cause of action must be unmistakably stated first a cause of action.
The mere existence of a cause of action is not sufficient for a And you must comply with the conditions precedent. You cannot file a
complaint to prosper. Even if in reality the plaintiff has a cause of case unless you comply with certain conditions and the best illustration
action against the defendant, the complaint may be dismissed if of this element is the case of
the complaint or the pleading asserting the claim “states no cause
of action”. (Sec. 1[g], Rule 16). PHILAM GENERAL INSURANCE CO. vs. SWEETLINES - 212 SCRA 194
FACTS: This involves shipped cargoes from Manila to Davao but the
This means that the cause of action must unmistakably be stated goods were damaged while in transit. Based on the damaged
or alleged in the complaint or that all the elements of the cause of cargoes, the consignee filed a case against the carrier. Actually, in the
action required by substantive law must clearly appear from the bill of lading, there is a stipulation that if the consignee wants to file a
mere reading of the complaint. To avoid an early dismissal of the case arising from the contract of carriage against the carrier, the
complaint, the simple dictum to be followed is: “If you have a consignee must first send a notice of loss to the carrier and then if the
cause of action, then by all means, state it! State all of its elements carrier will not honor it, that is the time the consignee can file a case
in your pleading!” before the court. Now, he went to court directly without filing anotice
of loss to the carrier.
Where there is a defect or an insufficiency in the statement of the ISSUE: Whether or not there is a right of action.
cause of action, a complaint may be dismissed not because of the HELD: There is NO right of action because the consignee did not
absence or a lack of a cause of action but because the complaint comply with the conditions precedent.
“states no cause of action”. The dismissal will therefore, be “The right of action does not arise until the performance of all
anchored on a “failure to state a cause of action.” conditions precedent to the action. Performance or fulfillment of all
conditions precedent upon which a right of action depends must be
The failure to state a cause of action does not mean that the sufficiently alleged, considering that the burden of proof to show that
plaintiff has “no cause of action.” It only means that the plaintiff’s a party has a right of action is upon the person initiating the suit.”
allegations are insufficient for the court to know that the rights of “More particularly, where the contract of shipment contains a
the plaintiff were violated by the defendant. Thus, even if indeed reasonable requirement of giving notice of loss of or injury to the
the plaintiff suffered injury, if the same is not set forth in the goods, the giving of such notice is a condition precedentto the action
complaint, the pleading will state no cause of action even if for loss or injury or the right to enforce the carrier’s liability.”
factually or in reality the plaintiff has a cause of action against the
defendant. BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF
ACTION.
Action distinguished from Cause of Action
A: The following are the distinctions:
An action is the suit filed in court for the enforcement or protection
1) Cause of action is the delict or wrong committed by the
of a right, or the prevention or redress of a wrong. (Sec. 3[a]. Rule
defendant, whereas
2, Rules of Court. A cause of action is the basis of the action filed.
Right of action refers to the right of the plaintiff to
Under the Rules of Court “every ordinary civil action must be based
institute the action;
on a cause of action.” (Sec. 1, R 2).
2) Cause of action is created by substantive law (e.g. rights
under the Civil Code), whereas
CAUSE OF ACTION vs. RIGHT OF ACTION
Right of action is regulated by procedural law; “Right of
Another important subject in procedure is distinguishing a cause of
action is a remedial right belonging to some persons,
action from a right of action.
while cause of action is a formal statement of the
43
Amilhamja, Adj.
operative facts that give rise to such remedial right.” -If the court can render a valid judgment based on the allegation in the
(De Guzman vs. CA, supra) complaint, the complaint states a cause of action.
3) Right of action may be taken away by the running of -As a general rule, evidence aliunde should not be considered. But
the statute of limitations, by estoppel or other annexed documents to the complaint may be considered because they
circumstances which do not affect at all the cause of are part of the complaint (Sea Land Service, Inc., vs. CA, 327 SCRA 135;
action. Alberto vs.CA, 334 SCRA 756).
Cause of Action Right of Action
Cause of action is a delict Right of action refers to
SPLITTING A CAUSE OF ACTION
or wrong committed by the right of the plaintiff
the defendant to institute the action Sec. 3. One suit for a single cause of action. - A
party may not institute more than one suit for a
— Cause of action is Right of action is single cause of action. (3a)
created by substantive regulated by procedural
law law Section 3 is known as the rule against splitting the cause of action.
— Cause of action may Right of action may be Purpose:
not be affected by taken away by stature of To avoid the following:
estoppel, or statute of limitation and estoppel 1) Multiplicity of suits;
2) Conflicting decisions; and
limitation 3) Unnecessary vexation and harassment of defendants.
EXAMPLE: When a debtor borrows money and he does not pay.
Hisfailure to pay is the cause of action. After 10 years, the right to This applies not only to complaints but also to counterclaims and cross-
collect has prescribed and you cannot recover anything. Actually, claims.
what is barred is his right of action, not the cause of action
because the moment he does not pay, there is already a wrong Q: What is splitting a single cause of action?
and you cannot erase a wrong. The cause of action is not affected A: Splitting a cause of action is the act of instituting two or more suits
by prescription. In fact, the Civil Code provides that the for the same cause of action.
obligation is converted into natural obligation, which is based on It is the practice of dividing one cause of action into different parts and
equity rather than a right. making each part a subject of a different complaint. (Bachrach vs.
When we say that the action has prescribed we should mean that Icariñgal, 68 Phil. 287)
what has prescribed is the right of action not the cause of action. In splitting a cause of action, the pleader divides a single cause of
action, claim or demand into two or more parts, brings a suit for one of
Relief, Remedy and Subject Matter such parts with the intent to reserve the rest for another separate
Relief is the redress, protection, award or coercive measure which action. (Quadra v. CA 497 SCRA 221)
the plaintiff prays the court to render in his favor as consequence
of the delict committed by the defendant; EXAMPLE: In a suit under a promissory note, you file a case to collect
while remedy is the procedure or appropriate legal form of relief of the principal; another action to collect the interest; another action to
action which may be availed of by the plaintiff as the means to obtain collect attorney’s fees. So, there is only one note and you sue me three
the desired relief. times but there is only one cause of action. Now, under the law, you
have split your cause of action. You should file only one case to
Subject matter is the thing, wrongful act, contract or property which recover the principal and the interest as well as the attorney’s fees.
is directly involved in the action, concerning which the wrong has
been done and with respect to which the controversy has arisen. EXAMPLE: Damage (injury) suit: X, while walking was bumped by a
vehicle. He filed one case against the owner of the vehicle for
When can we say that a complaint states a cause of action? reimbursement of hospital expenses; one case to recover his
— A complaint states a cause of action if it sufficiently avers the expenses for medicine; another one for doctor’s fees; then another
existence of the four (4) essential elements of a cause of action. If case for the lost income.
the allegations do not state the concurrence of these elements, the
complaint become vulnerable to a motion to dismiss on the ground A single act may sometimes violate several rights of a person.
of failure to state a cause of action (Westmont Bank vs. Funai Nevertheless, the plaintiff has only one cause of action regardless of
Philippines Corp., GR No. 175733, July 8, 2015). the number of rights violated. If a car owner sustains injuries to his
person and damage to his car as a result of the negligent driving of
Failure to state a cause of action vs. Lack of cause of action the defendant, two rights of the plaintiff have been violated, namely,
• Failure to state a cause of action pertains to the insufficiency his personal right to be safe in his person and his property right to
in the allegations in the action, while lack of cause of action pertains have his car intact and free from any damage. Under the
to insufficiency of evidence. circumstances, the plaintiff can only file a single action for the
• The dismissal due the failure to state a cause of action does recovery of damages for both types of injuries. Filing an action to
not constitute res judicata, while the dismissal on the ground of lack recover damages to his person and later for damages to his car would
of cause of action is a decision on the merits, thus, res judicata. be splitting a single cause of action. This is because there is one act
• The motion to dismiss based on failure to state a cause of of violation. If, however, a passenger in the same car was also
action is to be filed before answer while motion to dismiss based on injured, the injuries to the passenger gives rise to a cause of action
lack of cause of action is to be filed after the plaintiff has rested its separate and distinct from those sustained by the car owner because
case. distinct rights belonging to different persons have been violated. The
injured passenger may file a suit against the defendant separate
What is the test to determine whether a complaint state a cause of from the suit filed by the car owner.
action of not?
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Amilhamja, Adj.
A cause of action for the reconveyance of title over property does mortgage based on violation of the conditions of the mortgage
not include a cause of action for forcible entry or unlawful (Enriquez vs. Ramos 7 SCRA 26).
detainer. They are distinct causes of action. What is involved in an
ejectment case is possession de facto or material possession. In Illustration 1
an action for reconveyance, the issue is ownership. (Tecson v. —A, by means of force and intimidation, was able to gain entry into the
Gutierez, 452 SCRA 781; de la Cruz v. CA, 133 SCRA 520). land of B. A retained possession of the land of B for 5 years. B lost
income from such dispossession in the amount of 2M. Two cases
Application of the rule against splitting a single cause of action cannot be filed: 1) for recovery of possession. 2) for recovery of
This rule applies not only to complaints but also to counterclaims damages for lost income. A enters into contract with B. There are three
and cross-claims. (Mariscal v. CA, 311 SCRA 51) obligations in the contract: 1) to deliver 100 sacks of rice; 2) to deliver
Example: The act of a defendant in taking possession of the a car and 3) to deliver 100 sacks of corn. All obligations are due. Can A
plaintiff’s land by means of force and intimidation constitutes a filed three suits for the three stipulations in the Contract? No.
single act of dispossession but gives rise to two reliefs to the Rule 1- A contract embraces only one cause of action even if it
plaintiff: contains several stipulations because it may be violated only once.
a) recovery of possession, and
b) damages arising from the loss of possession. Both of Illustration 2
these reliefs result from a single wrong hence, —A obtained a loan from B for the principal amount of 400,000 payable
constitute but a single cause of action. Each of them in 4 installments to be paid annually starting in December, 2016 and
cannot be the subject of two separate actions. IT is every December thereafter. A failed to pay the first installment.
procedurally erroneous for the plaintiff to file an action —Can B file a collection case against A for the installment not paid?
to recover possession and another action for damages. Rule 2- A contract which provides for several stipulations to be
Both remedies must be alleged and claimed in only one performed at different times give rise to as many causes of action as
complaint. To file a separate action for each relief is to there are violations.
split a single cause of action.
Illustration 3
Now if the defendant denies plaintiff’s allegations and avers that —A obtained a loan from B for the principal amount of 400,000 payable
the action is just plain harassment and claims for damages, in 4 installments to be paid annually starting in December, 2016 and
attorney’s fees and litigation" expenses, he cannot file 3 every December thereafter. A failed to pay all installments.
counterclaims. —Can B file a collection case against A for the first installment not paid
without violating the rule on splitting a cause of action?
The action for forcible entry should include not only the plea for Rule 3- All obligations which have matured at the time of the
restoration of possession but also claims for damages arising out of suit must be integrated as one cause of action in one complaint,
the forcible entry. The claim for damages cannot be filed separately and those not so included would be barred.
(Progressive Development Corporation, Inc. vs. CA 301 SCRA 637).
Cases
The same principle applies to an action to recover the possession of Industrial Finance vs. Apostol, 177 SCRA- A bank cannot file a civil
a land. The action must also include the recovery of the fruitsalready action against the debtor for collection of debt and then subsequently
taken from the land and appropriated by the defendant. A suit for file an action for foreclosure of mortgage. This would be splitting a
recovery of the land and a separate suit to recover the fruits will not cause of action. All obligations which have matured at the time of the
be sustained. Also, when one files a complaint for unlawful detainer suit must be integrated as one cause of action in one complaint, and
on the ground of non-payment of rentals, the complaint must those not so included would be barred.
include the recovery of the rentals in arrears, such recovery being an
integral part of the cause of action for unlawful detainer. Progressive Development Corp. vs. CA, 301 SCRA 637 – An action for
forcible entry should include not only the plea for restoration of
A tenant illegally ejected from the land is entitled to two reliefs – one possession, but also claims for damages arising out of forcible entry.
for reinstatement and another for damages. Since both reliefs arose The claim for damages cannot be filed separately.
from the same cause of action, they should be alleged in one
complaint (Gozon vs. Vda. De Barrameda 11 SCRA 376). CGR Corp vs. Treyes,GR No. 170916,April 27, 2007 – However, the rule
does not apply to a situation where the claim for damages arose out of
An action for the recovery of taxes should also include the demand separate acts committed by the defendant after the occupancy of the
for surcharges resulting from the delinquency in the payment of said premises subject of the action. The Court sustained the separate action
taxes. The non-payment of taxes gave rise to two reliefs: (a) the for damages and ruled that there was not litis pendencia involved. The
recovery of the unpaid taxes; and (b) the recovery of the surcharges Court explained that the claim for damages has no direct relation to the
resulting from non-payment of the taxes. These two reliefs are loss of possession of the premises but resulted from acts separate from
results of a single cause of action and which should be pursued in a forcible entry.
single complaint (City of Bacolod vs. San Miguel Brewery, Inc. 29
SCRA 819). Sec. 4. Splitting a single cause of action; effect of.
- If two or more suits are instituted on the basis
A bank cannot file a civil action against the debtor for the collection of the same cause of action, the filing of one or a
of the debt and then subsequently file an action to foreclose the judgment upon the merits in any one is available
mortgage. This would be splitting a single cause of action (Danao vs. as a ground for the dismissal of the others. (4a)
CA 154 SCRA 446; Industrial Finance Corp. vs. Apostol 177 SCRA 521).
The remedy of the defendant is a motion to dismiss or if such motion
It has been held however, that an action to collect the amount of the is not filed, to allege it in the answer as an affirmative defense.
loan will not preclude a subsequent action for the rescission of the
45
Amilhamja, Adj.
Q: What are the effects of splitting a cause of action? filed a civil action to collect the loan. After filing a civil action to
A: Under Section 4, the following are the effects: collect the loan, the bank instituted an action to foreclose the
mortgage.
1.) The filing of one is available as a ground for the dismissal
HELD: “Anent real properties in particular, the Court has laid down
of the other. This assumes a situation where there is
the rule that a mortgage creditor may institute against the
already another action pending between the same
mortgage debtor either a personal action for debt or a real action
parties for the same cause. i.e. Litis pendentia
to foreclose the mortgage. In other words, he may pursue either of
2.) A judgment upon the merits in any one is available as a
the two remedies, but not both.”
ground for the dismissal of the others. This refers to a
judgment that is final and executor. That is what you call
“Evidently, the prior recourse of the creditor bank in filing a civil
barred by prior judgment or RES ADJUDICATA.
action against the Danao spouses and subsequently resorting to
the complaint of foreclosure proceedings, are not only a
SINGLENESS OF A CAUSE OF ACTION
demonstration of the prohibited splitting up of a cause of action
Q: How do you determine the singleness of a cause of action?
but also of the resulting vexation and oppression to the debtor.”
A: The singleness of a cause of action is determined by the
singleness of the delict or wrong committed by the defendant
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION
and not by the number of remedies that the law grants the
IN CONTRACTS WITH SEVERAL STIPULATIONS
injured party. Meaning, a single delict may give rise to two or
more possible remedies but it does not mean to say the injured
RULE #1 (General Rule):
party can avail of all those remedies simultaneously or one after
A contract embraces only one cause of
another. (Bachrach vs. Icariñgal, supra; David vs. De la Cruz, L-
action because it may be violated only
11656, April 18, 1958)
once, even if it contains several
stipulations. (Quioque vs. Bautista, L-
Umale vs. Canoga Park, 654 SCRA 155
13159, Feb. 28, 1962)
Tests singleness of cause of action
•Whether the same evidence would support the first and second
EXAMPLE: P enters into a contract with N which contains 3 stipulations:
causes of action.
(#1) that next month, P will deliver to N 100 sacks of rice; (#2) on the
•Whether the defenses in one case may be used to substantiate
same date, P will also deliver to N 100 sacks of corn; and (#3) on the
the complaint in the other
same date, P will also deliver to N 100 sacksof sugar. When the day
•Whether the cause of action in the second case existed at the
arrived, nothing was delivered. So three stipulations were violated.
time of the filing of the first complaint
Umale vs. Canoga Park, 654 SCRA 155
— Plaintiff filed an action for unlawful detainer against the tenant Q: How many causes of action does N have against P?
A: ONE. The contract is only one cause of action even if it contains
for violation of the lease agreement. During the pendency of the
case, the lease contract expired. The plaintiff filed again another several stipulations. The cause of action is not based on the number of
paragraphs violated but on the contract itself.
case for unlawful detainer based on expiration of contract.
— The SC rule, there is no splitting of cause of action. The grounds
are different. Besides, at the time that the first case filed, the RULE #2 (Exception to the General Rule):
ground for the second case in not yet existing. A contract which provides for several
stipulations to be performed at
EXAMPLE: Obligations and Contracts: A violation or a breach of different times gives rise to as many
contract could give rise to a civil action for specific performance causes of action as there are
or a civil action for rescission of contract. However, it does not violations. (Larena vs. Villanueva, 53
mean to say that the injured party can file both or one after the Phil. 923)
other. Otherwise, he will be splitting his cause of action.
EXAPLE: A loan with a promissory note where the principal amount
EXAMPLE: There is the Recto Law (on Sales) which provides for 3 is payable in installment. The first installment is payable in 2008, the
remedies of an unpaid seller of personal properties: (1) rescind second installment in this year, and the third installment is payable
the contract of sale; (2) exact fulfillment of obligation; and (3) in 2010 without any acceleration clause. So, there is only one
foreclosure of mortgage. But even the law on Sales is very clear: contract of loan but the principal is payable in threeinstallments at
the choice of one automatically bars resort to the other because different times.
it will be against splitting the cause of action. For non- payment of the first installment, the creditor has a cause of
action and can file one case.
EXAMPLE: Credit Transactions: A bank has two (2) possible
remedies against a debtor for non-payment of a loan secured by Q: Next year, he did not pay the second installment, can the creditor
a mortgaged say, piece of land: (1) foreclose the mortgage on the file another case?
land; or (2) file an action to collect the loan. Here, the bank A: YES, because this time it is the exception. Every installment is one
cannot file a case against the debtor to collect the loan and at the cause of action even if there is only one note. Remember that they
same time file an action to foreclose the mortgage for it will be are to be performed at different times.
splitting the cause of action. So it is either you enforce the
principal contract of loan, or, you enforce the accessory contract RULE #3 (Exception to the exception):
of mortgage. All obligations which have matured
This is what happened in the case of at the time of the suit must be
DANAO vs. CA – 154 SCRA 446 integrated as one cause of action in
FACTS: The Danao spouses borrowed money from the bank, one complaint, and those not so
mortgaged their property and then they failed to pay. The bank included would be barred. (Larena
46
Amilhamja, Adj.
vs. Villanueva, 53 Phil. 923) Joinder of causes of action is subject to the following conditions:
1. The party joining causes of action shall comply with the rules on joinder
EXAMPLE: In 2008, the debtor did not pay but the creditor did not of parties.
file any case. Then this year, the second installment was not also 2. The joinder shall not include special civil actions or actions governed by
paid. special rules.
3. Where the causes of actions are between the same parties but pertain
Q: Is the creditor correct if he files two separate actions? to different venues or jurisdictions, the joinder may be allowed in the RTC
A: He is wrong. When all the installment are already due and the provided one of the cause of actions falls within the jurisdiction of said
creditor has not filed any case for the collection of the first court and venue lies therein.
installment, this time, when he files for collection of the unpaid 4. Where the claims in all causes of action are principally for recovery of
second installment, everything must be integrated. If you do not money, the aggregate amount claimed shall be the test of jurisdiction
file a claim for one, it is deemed barred. (Section 5, Rule 2). – Totality test also in BP 129
So for example, if you will wait for the entire note to mature, you
cannot apply rule 2. You should only file one action and you go The party joining causes of action shall comply with the rules on joinder
back to the general rule. of parties
This condition is only applicable when two or more plaintiffs or two or
Doctrine of Anticipatory Breach more defendants are joined in the pleading. This condition is not
RULE #4 (Exception to Rule #2) applicable when there is only one plaintiff and one defendant.
An unqualified and positive
refusal to perform a contract, Illustration 1
though the performance thereof A obtained a loan from B in the total amount of 300K covered by three
is not yet due, may, if the PN’s each amounting to 100k. All of them becomes due and demandable.
renunciation goes into the whole B can join the 3 causes of action in one complaint.
contract, be treated as a complete
breach which will entitle the Illustration 2
injured party to bring the action at A is a passenger of the bus owned by B. The bus was bumped by
once. (Blossom & Co. vs. Manila a truck driven by C. A was injured as a result thereof.
Gas Corp., 55 Phil. 226) In a complaint for damages, can A joined B and C in the one complaint? Is
there a need to follow the rule on joinder of parties? YES. Because there
EXAMPLE: Let us suppose that in the preceding problems when the
are two defendants.
first installment fell due the creditor demanded payment for the first
installment from the debtor but the latter refused to pay claiming
Q: Can a party assert in one pleading several causes of action pertaining
that there was no loan and the promissory note is a forgery how
to different persons?
many causes of action are there?
A: YES, provided that the party joining the causes of action shall comply
with the rules on joinder of parties.
Now, in that kind of statement, he is not only repudiating the first
installment. He is repudiating the entire note. So under rule #4, the
Q: When is joinder of parties allowed?
creditor can file a case for the entire loan of because it has been
All persons in whom or against whom any right to relief in respect to or
repudiated. If you only file only one for the first installment which
arising out of the same transaction or series of transactions is alleged to
fell due, then another for the others, it will be useless because he
exist, whether jointly, severally or in the alternative, may, except as
will still maintain the same position. So you do not wait anymore
otherwise provided in these Rules, join as plaintiffs or be joined as
for the 2nd and 3rd installments to fall due. You file only one case
defendants in one complaint, where any questions of law or fact common
for the entire breach. There is a total breach for a continuing
to all such plaintiffs or to all such defendants may arise in the action. (Sec.
obligation and there is now only one cause of action for the entire
6, Rule 3)
promissory note. (Blossoms & Co. v. Manila Gas Corporation, 55 Phil.
226) The anticipatory breach committed by the defendantentitles
Let us simplify:
the plaintiff to only one cause of action.
The joinder is allowed when:
a. the causes of action arise out of the same transaction or series of
JOINDER OF CAUSES OF ACTION
transaction
SEC. 5. Joinder of causes of action. - A party b. There is a common question of fact an law in the parties joined.
may in one pleading assert, in the alternative
or otherwise, as many causes of action as he Amplification of Illustration 2
may have against an opposing party, subject A has cause of action against B for breach of contract. He has also cause
to the following conditions: of action against C for culpa aquiliana or quasi-delict. Since there are two
defendants we have to refer to the rule on joinder of parties.
Joinder of causes of action Joiner of parties requires that the causes of action arise out of the same
-It is the assertion in one pleading, in alternative or otherwise, as many transaction or series of transaction and that there is common question of
causes of action as he may have against an opposing party. (Sec. 5, Rule law and fact in the parties joined.
2)
The joinder shall not include special civil actions or actions governed by
Illustration special rules
A obtained a loan from B in the total amount of 300K covered by three An ordinary civil action cannot be joined with special civil action or action
PN’s each amounting to 100k. All of them becomes due and governed by special rules. This is because special civil action is governed
demandable. B can join the 3 causes of action in one complaint. by special rules which may not be applicable to ordinary civil action.
Illustration
47
Amilhamja, Adj.
Q: A files a collection suit against B. In the same complaint he included RULE 3, SEC. 13. Alternative defendants. - Where
a petition for judicial foreclosure of mortgage. Is joiner proper? the plaintiff is uncertain against who of several
A: No. The cause of action for foreclosure of mortgage cannot be joined persons he is entitled to relief, he may join any or
with collection suit because the former is governed by the rules on all of them as defendants in the alternative,
special civil action while collection suit is governed by rules on ordinary although a right to relief against one may be
civil action. inconsistent with a right of relief against the
other. (13a)
Where the causes of actions are between the same parties but pertain
to different venues or jurisdictions, the joinder may be allowed in the RULE 8, SEC. 2. Alternative causes of action or
RTC provided one of the causes of action falls within the jurisdiction of defenses. - A party may set forth two or more
said court and venue lies therein. statements of a claim or defense alternatively or
This condition is applicable when the suit is between the same parties. hypothetically, either in one cause of action or
It has no application when the suit is filed against different parties. defense or in separate causes of action or
defenses. When two or more statements are
ALTERNATIVE and CUMULATIVE made in the alternative and one of them if made
Joinder of Causes of Action independently would be sufficient, the pleading
Q: How may causes of action be joined? is not made insufficient by the insufficiency of
A: Causes of action may be joined either: (a) one or more of the alternative statements. (2)
alternatively or (b)cumulatively.
Requisites for proper joinder of causes of action
An ALTERNATIVE JOINDER exists when your cause of action is Q: When is joinder of causes of action allowed?
either one or the other. You are not seeking relief from both but A: Under Section 5, joinder of causes of action is allowed under the
from either one. following conditions:
A CUMULATIVE JOINDER exists when you are seeking relief for all a) The party joining the causes of action shall comply with the
your causes of action. rules on joinder of parties;
b) The joinder shall not include special civil actions or actions
ALTERNATIVE joinder; Example: governed by special rules;
A is the importer of the goods that were shipped on board a c) Where the causes of action are between the same parties but
carrier. Upon reaching Cebu City, they were unloaded by the pertain to different venues or jurisdictions, the joinder may be
arrastre or stevedoring operator. But when the goods were allowed in the Regional Trial Court provided one
delivered to A they were already in a damaged condition. A of the causes of action falls within the jurisdiction of said
complained to the arrastre which denied liability claiming that the court and the venue lies therein; and
goods were damaged already before unloading. Then when A d) Where the claims in all the causes of action are principally
went to the carrier, it passed the blame to the arrastre. for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction. (5a)
A here has two (2) possible causes of action: (1) an action against
the stevedoring operator under the contract of depositary under The party joining causes of action shall comply with the rules on
the law on Credit Transaction; Or, (2) an action against the carrier joinder of parties.
under the Law on Transportation. So there are 2 possible causes —This condition is only applicable when two or more plaintiffs or two
of action. or more defendants are joined in the pleading. This condition is not
applicable when there is only one plaintiff and one defendant.
Q: Can A file a complaint incorporating the two (arrastre and the
carrier) both as defendants? a.) The party joining the causes of action shall comply with
A: YES, that is allowed. This is alternative joinder because A is not the rules on joinder of parties
claiming from both of them, but either one or the other. The rule on joinder of parties is Rule 3, Section 6 which provides that
Another Example: C is a passenger riding on a public utility vehicle two (2) or more persons can join as plaintiffs in one complaint or can
which collided with another vehicle and she is not sure who is at be joined as defendants in one complaint, provided there is a
fault. If the fault lies with the other vehicle, and the driver of the bus common question of fact or law involved in that case. In other
where C was riding is not at fault, then her cause of action against words, before there can be a proper joinder of causes of action
the other vehicle is quasi-delict. But if the fault lies with the driver of there must must be a proper joinder of parties. Proper joinder of
the bus where she was riding, her cause of action is culpa parties requires that the right to relief should arise out of the same
contractual. So she has 2 possible causes of action. transaction or series of transactions and that there exists a
common question of law or fact.
Q: Is it possible for C to file one complaint naming both the drivers
or both operators as defendants? When the causes of action accrue in favor of the same plaintiff and
A: YES. Either of them is liable to her. That is alternative joinder of against the same defendant, i.e., there is only one plaintiff and one
causes of action. defendant, it is not necessary to ask whether or not the causes of
actions arose of the same transaction or series of transactions as
CUMULATIVE JOINDER stated beforehand. This question is only relevant when there are
Examples: Refer to prior illustrations multiple plaintiffs or multiple defendants. So in our hypothetical case
That is why the manner of joining the defendants alternatively or where D borrowed from C two separate amounts of P350,000.00
otherwise should be correlated with Rule 3, Section 13 and Rule 8, each covered by two separate promissory notes, C can opt to file one
Section 2: complaint joining together the two causes of action arising from the
violations of the promissory notes.
48
Amilhamja, Adj.
EXAMPLE: Two or more passengers riding on the same bus, met UNION GLASS AND CONTAINER CORP vs. SEC - 126 SCRA 31
an accident. All of them were injured. Every passenger who gets FACTS: (This is still a good ruling) A stockholder of a corporation
injured has a cause of action separate and distinct from each who is also the creditor of the corporation decided to file one
other because there are separate contracts of carriage violated. complaint against the corporation asserting several causes of
So they decided to file a damage suit. action, among them is his right as a stockholder under the
Corporation Code and also his right as a creditor under the Civil
Q: Can they be joined in one complaint? Code.
A: YES because there is a common question of fact or law. They HELD: The joinder is improper. In the first place, one is governed
are riding on the same bus, meeting the same accident, against by a quasi-judicial body (SEC). So how can the RTC try a case when
the same operator. So there is a joinder of parties under Rule 3. the cause of action is pertaining to the SEC and it is governed by
And if the joinder of parties under Rule 3 is proper, then their the special rules of the SEC? So you cannot join that.
causes of action can also be joined under Rule 2 because the
condition is: “shall comply with the rules on joinder of parties.”
c.) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder
Q: Suppose these passengers were riding on different buses may be allowed in the Regional Trial Court provided one of
owned by the same operator. All of them met an accident. Well of the causes of action falls within the jurisdiction of said court
course the same kind of case: damage suit, breach of contract and the venue lies therein
against the same operator. Now, can their causes of action be
joined?
PROBLEM: M encroached on two parcels of land belonging to me
A: NO. They cannot be joined because there is no common
both located IN Cebu City. In one parcel of land, the assessed value
question of fact or law. The defense of the operator here is is only P20,000. In another parcel of land, the assessed value is P1
different from his defense there. Meaning, passenger A has
million. I would like to file a case of action publiciana against him.
nothing to do with the complaint of passenger B because there is
The first accion publiciana is triable by the MTC (P20,000). The other
no common denominator between them. So if you cannot join
accion publiciana is triable by the RTC.
them under Rule 3, the joinder of causes of action under Rule 2 is Q: Can I join them?
also improper.
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC
will prevail. Venue, of course, is Cebu City.
Distinguish joinder of causes of actions from joinder of parties.
Joinder of causes of action refers to the procedural device whereby Examples of “but pertain to different venues or jurisdiction”
a party who asserts various claims against the same or several
parties, files all his claims against them in a single complaint. The PROBLEM: M encroached on my land in Lapulapu with an assessed
joinder will not involve a joinder of parties when the causes of action value of P20,000. And then he encroached in another land of mine
joined accrued in favor of the same plaintiff against the same in Cebu City with an assessed value of P1 million. You will notice that
defendant, i.e., there is only one plaintiff against the same in the Lapulapu land, the jurisdiction is in the MTC for the case accion
defendant. This means that a joinder of causes of action will not publiciana and the venue is Lapulapu because the property is
necessarily involve a joinder of parties. situated there. In the other case, the jurisdiction is in the RTC and the
Joinder of parties is a procedural device that may be employed when venue is Cebu City.
there are various causes of actions that accrue in favor of one or Q: Can I file a case against M joining the 2 cases?
more plaintiffs against one or more defendants, i.e., there is a A: YES.
plurality of parties. A joinder of parties requires that before parties Q: Where is now the governing venue?
can be joined under a single complaint the right to relief must arise A: The venue of the RTC case prevails. Therefore, the case must be
out of the same transaction or series of transactions and there filed in Cebu City.
must be a common question of law or fact. A joinder of parties may
or may not be involved in a joinder of causes of action. PROBLEM: M encroached on my land in Lapulapu with an assessed
value of P1 million. And then he encroached in another land of mine
b.) The joinder shall not include special civil actions or actions in Cebu City with an assessed value of P1 million also. You will notice
governed by special rules that in the Lapulapu land, the jurisdiction is RTC for the case accion
Assume that aside from the above claims of C against D, C who publiciana. In the other case, the jurisdiction is also in the RTC of
happens to be the lessor of D wants to eject D from the apartment Cebu City. So both actions, RTC.
occupied by D as lessee. May the action be joined with the claims for Q: In which RTC will you file the case joining the causes of action?
money? A: Either Lapulapu or Cebu City because both are RTCs.
No. An action for ejectment is a special action which cannot be PROBLEM: M encroached on my land in Lapulapu with an assessed
joined with ordinary action. The joinder does not include special civil value of P20,000. And then he encroached in another land of mine
actions or those governed by special rules. The reason is confusion in Cebu City with an assessed value of P20,000 also. In the Lapulapu
in the application of procedural rules would certainly arise from the land, the jurisdiction is MTC for the case accion publiciana. In the
joinder of ordinary and special civil actions in a single complaint. other case, the jurisdiction is also in the MTC. So both actions, MTC.
Q: Can I join in one complaint the 2 actions?
Assume that C has the following causes of action against D: (a) P1M
A: NO, because the law says provided one of the causes of action falls
based on a PN; (b) P1M based on torts; and (c) foreclosure of real
within the jurisdiction of said court and the venue lies therein. One of
estate mortgage. May the causes of action be joined?
them belongs to the RTC. In the example, both belong to the MTC.
Yes, except the foreclosure of real estate mortgage, which is a
PROBLEM: M encroached on my land more than one year ago and the
special civil action.
49
Amilhamja, Adj.
land has an assessed value of only P20,000. So if I will file an accion RULE 3, Sec. 11. Misjoinder and non-joinder of
publiciana, it has to be filed with the MTC. On the other hand, A parties. - Neither misjoinder nor non-joinder of
encroached my other parcel of land more than one year ago and parties ground for dismissal of an action.
the assessed value of the land is P1 million. So my cause ofaction Parties may be dropped or added by order of
there is also accion publiciana but triable by the RTC. So I decided the court on motion of any party or on its own
to file a case naming both of them as defendants initiative at any stage of the action and on such
terms as are just. A claim against a misjoined
Q: Can they be joined under Section 5?
party may be severed and proceeded with
A: NO. The law allows only if it is between the same parties. This time
separately. (11a)
the parties are not the same. Plus the fact that you might violate
paragraph [a] – there is no common question of fact and law
So misjoinder of parties and misjoinder of causes of action are not
between them.
grounds for dismissal of an action (Rule 2 Sec. 6). Just remove the
misjoined cause of action or the misjoined party.
PROBLEM: M encroached on my land in Cebu City one month ago
and then he encroached on another land of mine (assessed value of
P1 million) also located in Cebu City two years ago. Therefore, one
case is forcible entry triable by the MTC and the latter is accion
publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong to MTC
and RTC?
A: NO, you cannot join them because of paragraph [b] – a forcible
entry is special civil action which is also governed by the Summary
Procedure. You cannot join a special civil action. So what is violated
here is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are principally for
recovery of money, the aggregate amount claimed shall be the
test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE. There is
nothing new here. So judiciary law, totality rule, basta sums of
money.
As can be gleaned from Sec. 6(a) and (c) of the Truth in Lending Act,
the violation of the said Act gives rise to both criminal and civil
liabilities. Rule 2, Section 5 of the Rules of Court allows these actions
to be joined in one petition. (UCPB vs. Sps. Samuel and Odette
Beluso, GR No. 159912, Aug. 17, 2007).
Splitting a cause of action and joinder of causes of action of action

may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action were

joined in one complaint when they should no be joined.
EXAMPLE: A case joining an accion publiciana case and a forcible

entry case which is not proper because a special civil action
(forcible entry) cannot be joined. In this case there is misjoinder
of causes of action.
Example: If an action for forcible entry is joined in one complaint

with the causes of actions based on several promissory notes, the
complaint should not be dismissed based on the misjoinder of the
forcible entry case. Instead, the cause of action predicated on
forcible entry may be severed from the complaint upon motion of
a party or by the court motu proprio and proceeded with
separately in another action.
Under Section 6, if there is misjoinder, you do not dismiss the

case. The remedy is to ask the court that the misjoined case be
severed and tried separately. Now, the counterpart, which is still
present is misjoinder of parties under Rule 3, Section 11:
50
Amilhamja, Adj.
“ENTITIES AUTHORIZED BY LAW”

Rule 3
-Corporation by estoppel under Section 21 of the Corporation Code
PARTIES TO CIVIL ACTIONS - Estate of a deceased person
- A legitimate labor organization under the Labor Code
Sec. 1. Who may be parties; plaintiff and defendant. - Only - The Roman Catholic Church and as to its properties, the archbishop or
natural or juridical persons, or entities authorized by law diocese, to which they belong may be a party.
may be parties in a civil action. The term "plaintiff" may - A dissolved corporation may prosecute and defend suits within 3 years
refer to the original claiming party, the counter- under Article 122 of the Corporation Code (3 yrs is the period of winding
claimant, the cross-claimant, or the third (fourth, etc.)- up)
party plaintiff. The term "defendant" may refer to the The best example is Section 15 of this rule.
original defending party, the defendant in a
counterclaim, the cross-defendant, or other third Section 15. Entity without juridical personality
(fourth, etc.)-party defendant. (1a) as defendant.- When two or more persons not
organized as an entity with juridical
There are two main categories of parties in a civil action namely, personality enter into a transaction, they may
the plaintiff and the defendant. be sued under the name by which they are
generally or commonly known.
The plaintiff is the claiming party or more appropriately, the original
claiming party and is the one who files the complaint. The term In the answer of such defendant the names
however, does not exclusively apply to the original plaintiff. It may and addresses of the persons composing said
also apply to a defendant who files a counterclaim, a cross-claim or entity must all be revealed.
third party complaint. Hence Section 1 defines “plaintiff” as the
claiming party, the counter-claimant, the cross-claimant or the third- Thus, if A, B, C, D and E without incorporating themselves or without
party plaintiff, etc. registering as a partnership, enter into transactions using the
common name “Ocean Quest Corporation”, they may be sued as
The defendant does not only refer to the original defending party. If such. When the defendant “corporation” answers, the names of A,
a counterclaim is filed against the original plaintiff, the latter B, C, D and E and their addresses must be revealed. Note however,
becomes a defendant and the former, a plaintiff in the counterclaim. that the authority to be a party under this section is confined only to
Hence, in Sec. 1, the term “defendant” refers also to a defendant in being a defendant and not as a plaintiff. This is evident from the
a counterclaim, the cross-defendant or the third-party defendant, words, “they may be sued”.
etc.
Another example of an entity authorized by law which may not be
Q: Who may be parties to a civil case? a natural or juridical person is a labor union or organization under
A: Only the following may be parties to a civil action: the Labor Code. It is an entity authorized by law to file a case in
2 parties behalf of its members. Although it may not have been incorporated
1. plaintiff under the Corporation Law but registered under the Labor Code. A
2. defendant legitimate labor organization may sue and be sued in its registered
1) He must be either: name (Art. 242 [e], Labor Code of the Philippines).
a. natural or
b. juridical persons or
c. entities authorized by law. What are the others?
2) he must have the legal capacity to sue; and 1) An estate of a deceased person may be a party to an action.
3) he must be a real party-in-interest. (Limjoco v. Intestate Estate of Fragante, 8 Phil. 776;
Nazareno v. CA 343 SCRA 637)
So, you cannot sue or be sued unless you are either a person or 2) The Roman Catholic Church may be a party and as to its
an entity authorized by law. properties, the archbishop or diocese to which they belong
A dead man cannot sue and he cannot be sued because he has no may be a party. (Barlin v. Ramirez 7 Phil 47; Verzosa v.
more personality. Fernandez 49 Phil. 627)
3) A dissolved corporation may prosecute and defend suits by
Situation: B sued “Rama Eatery.” So, it is “B vs. Rama Eatery.” It is or against it provided that the suits occur within 3 years after
wrong. Rama Eatery is not a person nor an entity authorized its dissolution, and the suits are in connection with the
bylaw. The correct procedure is you sue the owner because he is settlement and closure of its affairs. (Sec. 122, Corporation
the real person. But the defect is not really substantial. It is only a Code)
formal defect that can easily be corrected. 4) Under Sec. 21 of the Corporation Code of the Philippines, a
corporation by estoppel is precluded from denying its
Juridical person as parties existence and the members thereof can be sued and be held
The juridical persons who may be parties are those enumerated liable as general partners.
in Art. 44 of the Civil Code, namely: 5) A contract of partnership having a capital of three thousand
1.) The State and its political subdivisions; pesos or more but which fails to comply with the registration
2.) Other corporations, institutions and entities for public requirements is nevertheless liable as a partnership to third
interest or purpose, created by law; and persons(Art. 1772 in relation to Art. 1768 Civil Code).
3.) Corporations, partnerships, and associations for private 6) A political party incorporated under Act 1459 (now BP 68,
interest or purpose to which the law grants a juridical Corporation Code)
personality, separate and distinct from that of each
shareholder, partner or member.
51
Amilhamja, Adj.
as plaintiff and the one violating the right is the real party in interest
What is the effect if the party impleaded is not authorized to be a as defendant.
party to suit?
-Where the plaintiff is not a natural person or a juridical person or Illustration
an entity authorized by law, a motion to dismiss may be filed on the -A mere agent, who is not an assignee of the principal, cannot bring
ground that the “plaintiff has no legal capacity to sue”. suit under a deed of sale entered into in behalf of his principal
-will serve as an affirmative defense because it is the principal, not the agent, who is the real party in
- Where it is the defendant who is not natural person or a juridical interest (Uy vs. CA, 314 SCRA 69).
person or an entity authorized by law, the complaint may be - An agent’s authority to file suit cannot be inferred from his
dismissed on the ground the “pleading asserting the claim states no authority to collect or receive payments; the grant of special powers
cause of action” or failure to state a cause of action because a cannot be presumed from the grant of general powers (V-Gent Inc.,
complaint cannot possibly state a cause of action against one who vs. Morning Travel and Tours, GR No. 186305, July 22, 2015).
cannot be a party to a civil action.
Illustration
Is it required to aver the parties’ capacity to sue and be sued? -Should a lawful possessor be disturbed in his possession, it is the
YES. possessor, not necessarily the owner of the property who can bring
Section 4. Capacity. — Facts showing the capacity of a party to sue the action to recover the possession. The argument that the
or be sued or the authority of a party to sue or be sued in a complaint states no cause of action because the suit was filed by a
representative capacity or the legal existence of an organized mere possessor and not the owner is not correct (Philippine Trust
association of person that is made a party, must be averred (Rule 8). Company vs. Court of Appeals, 320 SCRA 719).
Classes of parties: every action must be prosecuted or defended in the name of the
I. Real Parties in Interest real party in interest
II. Representative Parties
III. Permissive Parties What is the effect if a party is not a real a real party
IV. Indispensable Parties -If a suit is not brought in the name of or against the real party in
V. Necessary Parties interest, a motion to dismiss may be filed on the ground that the
complaint states no cause of action (Spouses Laus vs. optimum
I. REAL PARTIES IN INTEREST Security Services, GR No. 208343, February 3, 2016).
-now, it should be alleged as an affirmative defense
Sec 2. Parties in interest. - A real party in
interest is the party who stands to be GENERAL RULE: In a breach of contract, the real parties in interest
benefited or injured by the judgment in the are the parties to the contract. So strangers, as a rule, have no
suit, or the party entitled to the avails of the business suing in a contract because they are not real parties in
suit. Unless otherwise authorized by law or interest.
these Rules, every action must be prosecuted BALIWAG TRANSIT vs. CA - 169 SCRA 649 [1989 BAR]
or defended in the name of the real party in FACTS: A student who was riding in one of the Baliwag buses met
interest. (2a) an accident. So, an action was filed where the parentsand the
injured boy were the co-plaintiffs against Baliwag Transit. While
Q: Who is a real party in interest? the case was going on, the boy entered into amicable settlement
A: A real party in interest is the party who stands to be benefite or with the bus company. Based on the settlement, Baliwag moved
injured by the judgment in the suit or the party entitled to the to dismiss the case. The parents objected, “We are objecting
availsof the suit. (Section 2) because we are also plaintiffs. We didn’t know about the
-Unless otherwise authorized by law or the rules of court, every action settlement. We were the ones who spent money, therefore it
must be prosecuted or defended in the name of the real party in should not be dismissed simply because our son is withdrawing
interest. (Sec. 2, Rule 3) the case.”
HELD: The parents are not the real party in interest. They were
That definition is taken from the leading case of SALONGA VS. not the passengers. The real parties in a contract ofcarriage are
WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is the parties to the contract itself. “In the absence of any contract
defined and that definition has been repeated through the years. of carriage between the transportation company and the parents
of the injured party, the parents are not real parties in interest in
To be a real party- in- interest, the interest must be “real”, which an action for breach of contract.”
is present substantial interest as distinguished from a mere Of course, if the child is a minor the parents can file as representatives
expectancy or a future, contingent, subordinate or consequential but not as principal party.
interest. (Rayo v. Metrobank, 539 SCRA 571; Fortich v. Corona 289
SCRA 624; Figuracion v. Libi 539 SCRA 50. It is an interest that is EXCEPTION: When there is a stipulation in the contract favorable to a
material and direct, as distinguished from a mere incidental third person (stipulation pour autrui – Art. 1311, NCC)
interest in the question. (Samaniego v. Aguila 334 SCRA 438; Example: Third-Party Liability (TPL) in insurance. A insured his car with
Mayor Rhustom Dagadag v. Tongnawa 450 SCRA 437). B for TPL. A bumped C. C can file a case against A and B to recover from
the insurance contract. In other words, while only A and B are the
How do we determine who is the real party? parties to the insurance contract yet the third-party liability stipulation
-The determination of who the real party in interest requires the is intended to benefit a third party who may be damaged by A while
examination of elements of a cause of action. A cause of action driving his car.
involves the existence of a right and violation of such right. Also parties who have not taken part in a contract may show that they
(ROViD) have a real interest affected by its performance or annulment. In other
-Thus, the owner of the right violated is the real party in interest
52
Amilhamja, Adj.
words, those who are not principally or subsidiarily obligated in a distinct from that of an officer or a stockholder. The objection to an
contract, in which they had no intervention, may show their unlawful search and seizure is purely personal and cannot be availed of
detriment that could result from it. Thus, Article 1313 of the Civil by third persons (Stonehill vs. Diokno 20 SCRA 383).
Code provides that “creditors are protected in cases of contracts
intended to defraud them.” Further, Article 1381 of the Civil Code Derivative suit:
provides that contracts entered into in fraud of creditors may be However, even if the cause of action belongs to the corporation, if the
rescinded when the creditors cannot in any manner collect the board refuses to sue despite demand by the stockholders to sue and
claims due them. Thus, a creditor who is not a party to acontract can protect or vindicate corporate rights, a stockholder is allowed by law to
sue to rescind the contract to redress the fraud committed upon file a derivative suit in the corporate name. In such a suit, the real party-
him. in-interest is actually the corporation and the stockholder filing the
A mere agent, who is not an assignee of the principal cannot bring action is a mere nominal party (Asset Privatization Trust vs. CA 300
suit under a deed of sale entered into in behalf of his principal SCRA 579)
because it is the principal, not the agent who is the real party in
interest (Uy vs. CA 314 SCRA 69). In case the action is brought against Partnerships:
the agent, the action must be brought against an agent acting in his Under Art. 1768 of the Civil Code a partnership has a juridical
own name and for the benefit of an undisclosed principal without personality separate and distinct from that of each of the partners.
joining the principal, except when the contract involves things Hence, if the contract was entered into by the partnership in its name,
belonging to the principal. The real party-in-interest is the party who it is the partnership, not its officers or agents which should be
would be benefited or injured by the judgment or is the party impleaded in any litigation involving property registered in its name. A
entitled to the avails of the suit. An attorney-in-fact is not a real violation of this rule will result in dismissal of the complaint for failure
party-in-interest and that there is no law permitting an action to be to state a cause of action (Aguila vs. CA 319 SCRA 345).
brought by and against an attorney-in-fact (Carillo vs. CA 503 SCRA
66). Failure to include the name of a party in the pleading
The mere failure to include the name of a party in the title of the
SALONGA vs. WARNER BARNES – 88 Phil. 125 [Bar Problem] complaint is not fatal because the Rules of Court requires the courts to
FACTS: A decided to go abroad but she has properties in the pierce the form and go into the substance and not be misled by a false
Philippines. So she executed a special power of attorney in favor of K or wrong name in the pleadings. The averments are controlling and not
giving the latter “full power to administer, to collect all my money; to the title. Hence, if the body indicates the defendant as a party to the
withdraw my money in the bank; with full power to sue these people action, his omission in the title is not fatal (Vlasons Enterprises vs. CA
who owe me; with the authority to hire a lawyer; and enter into a 310 SCRA 26).
contract. Practically, you are my alter ego.” And then A went abroad.
K started to manage the property. One of the tenants failed Rule on ‘standing’ as distinguished from the concept or ‘real
to pay rentals. So in accordance with the authority, he hired a lawyer. party-in-interest’
In preparation of the complaint, it was stated in the caption, “K, Locus standi is defined as a right of appearance in a court of justice on
plaintiff vs. L, defendant.” a given question. IN private suits, standing is governed by the ‘real
ISSUE: Is the action properly filed? party-in-interest’ rule found in Section 2 Rule 3 of the Rulesof Court
HELD: NO. The real property in interest is the principal, the owner of which provides that ‘every action must be prosecuted or defended in
the property. K is only an attorney-in-fact. An attorney-in-fact cannot the name of the real party-in-interest’(Baltazar vs. Ombudsman GR No.
use in his own name because he is not the real party in interest. K is 136433 December 6, 2006)
given the authority to sue, to manage, hire a lawyer but not as the
plaintiff because the real party in interest is A. The complaint should However, the concept of ‘standing’ because of its constitutional
be captioned as “A, plaintiff vs. L, defendant.” underpinnings is very different from questions relating to whether or
Q: Suppose the caption will read: “K, as attorney-in-fact of A,plaintiff not a particular party is a real party-in-interest. Although both are
vs. L, defendant” is the complaint properly filed? directed towards ensuring that only certain parties can maintain an
A: NO. This is even worse because K is admitting that he is only an action, the concept of standing requires an analysis of broader policy
attorney-in-fact so it becomes more obvious that he is not the real concerns. The question as to who the real party- in-interest is involves
party in interest. If K wants to include his name, it should read: “A, only a question on whether a person would be benefitted or injured by
plaintiff, represented by K, his attorney-in-fact vs. L, defendant.” the judgment or whether or not he is entitled to the avails of the suit
Q: Does the law require A to come here to file the case? (Kilosbayan Inc. vs. Morato 246 SCRA 540).
A: NO. Take note that the law does not require the principal (A) to
come back to file the case because the plaintiff can invoke the
II. REPRESENTATIVE PARTY
jurisdiction of the court by filing the complaint and paying the docket Sec. 3. Representatives as parties. - Where the
fee.
action is allowed to be prosecuted or
Should a lawful possessor be disturbed in his possession, it is the defended by a representative or someone
possessor, not necessarily the owner of the property, who can bring
acting in a fiduciary capacity, the beneficiary
the action to recover the possession. The argument that the shall be included in the title of the case and
complaint states no cause of action because the suit was filed by a
shall be deemed to be the real party in
mere possessor and not by the owner is not correct (Phil. Trust interest. A representative may be a trustee of
Company vs. CA 320 SCRA 719).
an express trust, a guardian, an executor or
administrator, or a party authorized by law or
Suits for corporations:
these Rules. An agent acting in his own name
When the corporate offices have been illegally searched, the
and for the benefit of an undisclosed principal
corporate officer is not the real party in interest to question the
may sue or be sued without joining the
search. The right to contest the transgression belongs to the
principal except when the contract involves
corporation alone which has a personality of its own separate and
things belonging to the principal. (3a)
53
Amilhamja, Adj.
defendant.’
Section 3 is consistent with Section 2 because under Section Later on when the judgment was enforced, it turned out that D was
2, you cannot sue and be sued if you are not the real party in already dead but he has properties left behind. So, they started to take
interest. hold of his properties. Now, the heirs of D challenged the decision.
Section 3 allows one who is not a real party in interest to sue ISSUE: Whether or not there was a valid judgment against the
and be sued in behalf of somebody else but requires the beneficiary ‘defendant/or the estate of the defendant.”
to be named in the Complaint being the real party in interest. HELD: The decision is void. “The decision of the lower court insofar as
the deceased is concerned, is void for lack of jurisdiction over his
Representative Parties person. He was not, and he could not have been validly served with
-An action may be prosecuted or defended through a summons. He had no more civil personality. His juridical personality,
representative. that is fitness to be subject of legal relations, was lost through death
-A representative may be a trustee of an express trust, a guardian, (Arts. 37 and 42 Civil Code).”
an executor or administrator, or a party authorized by law or these “The same conclusion would still inevitably be reached notwithstanding
Rules (Section 3, Rule 3). joinder of B’s estate as co-defendant. It is a well-settled rule that an
estate can sue or be sued through an executor or administrator in his
If the action is prosecuted or defended through a representative, representative capacity.”
is it required that the beneficiary should be included in the title? So, the Court cited Section 3. In order to bind the estate, you should
-YES. sue the executor or the administrator of his estate. So, either way, the
-Where the action is allowed to be prosecuted or defended by a case cannot prosper.
representative or someone acting in a fiduciary capacity, the The last sentence of Section 3:
beneficiary shall be included in the title of the case and shall be An agent acting in his own name and for the benefit of an
deemed to be the real party in interest (Section 3, Rule 3). undisclosed principal may sueor be sued without joining
-Exception: An agent acting in his own name and for the benefit of the principal except when the contract involves things
an undisclosed principal may sue or be sued without joining the belonging to the principal.
principal except when the contract involves things belonging to the The agent cannot sue because the principal is the real party in interest.
principal (id.) But when an agent acts in his own name and for the benefit of an
Example: GUARDIAN. Suppose J, a minor was injured, a case for undisclosed principal, he may sue and be sued, EXCEPT when the
damages can be filed in behalf of the minor. A minor cannot sue and contract involves things belonging to the principal. Under the exception,
be sued but she is the real party in interest. The law allows the the principal has really to be included. The agent cannot file a case
parents to come in and also be the plaintiff. The parents are what we where the principal will lose his property without being named as part
the representative party. The law still requires for the minor to be to the case.
included in the case. The law states that “the beneficiary shall be
included in the title of the case and shall be deemed to be the real
party in interest.” Sec 4. Spouses as parties. - Husband and wife shall
sue or be sued jointly, except as provided by law.
In Oposa vs. Factoran GR No. 101083, 1993, minors represented by (4a)
their parents were held as real parties in interest to file an action to
annul timber license agreements issued by the state under the
following principles: Normally, the husband and the wife should sue and be sued together.
1. inter-generational responsibility; Even if the wife borrowed money alone and you want to sue the
2. inter-generational justice; woman, still the husband should be included. Why? In the property
3. the right of the Filipinos to a balnced and healthful relationship between the husband and wife, they are governed by
ecology; and absolute community or conjugal partnership. Whether you like it or not,
4. minors repersent themselves and the generation to the implication of the wife is also the implication of the husband
come. because of the property relationship.
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example
is a trustee of an express trust, or executor or administrator of the In the same manner, if the wife wants to collect, even if the husband
estate of a deceased person. When a person dies, what survives after does not know anything about it, the husband should still be named as
him is his estate which represents everything that is left behind. This party plaintiff, on the ground again that the income that she can get
later on will be given to his heirs. But for the meantime under the redounds to the benefit of the conjugal partnership.
law on succession, the executor or administrator will take charge of
his property. And there were decided cases in the past where even if for example, a
wife sues without the husband, the defect is not fatal but merely formal.
Q: If the estate of the deceased has some collectibles, who will file The complaint should not be dismissed. All that is to be done is to
the case? amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76
A: The administrator or executor as the representative party. If you Phil. 80)
want to sue the estate, you should sue the estate through the
Q: Give an exception to that general rule that husband and wife shall
administrator or executor.
sue or be sued jointly.
A: The EXCEPTIONS are:
CHING vs. CA– 181 SCRA 9
1) in case of Complete Separation of Property (Article 145,
FACTS: A wanted to sue D, who owes her a sum of money.The
Family Code), and
problem is, she cannot locate D’s whereabouts. Also, A is not certain
2) under Article 111, Family Code:
whether D is dead or alive. So, to play it safe, what A did was to file a
Art. 111. A spouse of age may mortgage,
case against the “defendant and/or the estate of defendant.” A
alienate, encumber or otherwise dispose of his
obtained a judgment against the ‘defendant and/or the estate of
54
Amilhamja, Adj.
or her exclusive property without the PROBLEM: Suppose some passengers riding a particular common
consent of the other spouse and appear carrier are injured because of an accident. All of them want to sue the
alone in court to litigate with regard to the operator of the carrier for damages arising out of the breach of contract
same. (Family Code) of carriage. Under the Law on Transportation, it is possible for each
3) Abandonment- Another is when a spouse passenger to file his own case because their causes of action are
without just cause abandons the other or different from each other. But can they be joined together in one
fails to comply with his or her obligations to complaint against the common carrier?
the family with respect to the marital, A: YES because there is a common question of law or fact in the
parental or property relations. causes of actions of the injured passengers: the evidence is
identical; the issues whether the carrier is at fault are the came;
Sec 5. Minor or incompetent persons. - A the witnesses for both parties will be the same; the report will be
minor or a person alleged to be the same; the defense of the operator against one party will be the
incompetent, may sue or be sued, with the same defense as against the other passenger. So, since there isa
assistance of his father, mother, guardian, common denominator on their causes of action, they can be joined.
or if he has none, a guardian ad litem. (5a) It would be different if the passengers were riding on different buses
belonging to the same company, and all of them met an accident.
Section 5 is related to Section 3. The minor or incompetent person What happened to Passenger No. 1 does not concern Passenger No. 2.
must be assisted by the parents and considered as representative The evidence will not be the same. So, there is no common
party. Incompetent persons include insane people or mentally denominator – no common question of fact. Therefore, they cannot
retarded people. They are supposed to be under the custody of be joined.
other persons, the guardians. If no guardian, the court has to
appoint a guardian called the guardian ad litem. PROBLEM: Suppose a story appeared in the Inquirer where 5 people
were called as jueteng kings. They were allegedly involved in
A person need not be judicially declared incompetent it being jueteng. Now, the five of them want to sue the Inquirer for damages
sufficient that his incompetency be alleged in the corresponding arising from libel. Is it possible for the five (5) people named in the
pleading. article to file only one complaint against the editor and publisher of
the Inquirer?
III. PERMISSIVE PARTY A: YES because it is of the same story. Their names appeared in the
same story. It is not a different issue. So there is a common question
Sec 6. Permissive joinder of parties. - All of fact and law in their cause of action.
persons in whom or against whom any right to
relief in respect to or arising out of the same PROBLEM: M, while driving a car, bumped another vehicle, injuring
transaction or series of transactions is alleged the driver and causing injury to other passengers. So, there are three
to exist, whether jointly, severally, or in the offended parties : the owner of the vehicle, the driver of the vehicle
alternative, may, except as otherwise , and the passenger. There are three(3) causes of action. Can they
provided in these Rules, join as plaintiffs or be join in one complaint against Myra, the owner of the car which
joined as defendants in one complaint, where bumped them?
any question of law or fact common toall such A: YES because there is a common question of fact and law. There
plaintiffs or to all such defendants may arise in is only one accident.
the action; but the court may make such
orders as may be just to prevent any plaintiff Q: But suppose the three of them will file 3 separate cases against
or defendant from being embarrassed or put M, can it be done?
to expense in connection with any A: YES! because it is a permissive joinder of parties, not mandatory.
proceedings in which he may have no interest.
(6) Q: Why does the law encourage joinder of parties?
A: The following are the reasons:
Section 6 is known as permissive joinder of parties. This is related to 1) to promote convenience in trial;
Section 5 [a] of Rule 2 on joinder of causes of action.
2) to prevent multiplicity of suits;
3) to expedite the termination of the litigation; and
Q: May two or more persons join in one complaint as plaintiffs? Or
4) to attain economy of procedure under which several demands
can two or more persons be joined together as defendants?
arising out of the same occurrence may be tried together thus
A: YES, under two conditions, to wit:
avoiding the repetition of evidence relating to facts common to
1.) There is a right to relief in favor of or against the parties
the general demands.
joined in respect to or arising out of the same
transaction or series of transactions; and
Now, take note that when there is joinder of parties, there is
2.) There is a question of law or fact common to the
automatically a joinder of causes of action. That is why one of the
parties joined in the action.
conditions or limitations in joinder of causes of action is you must
3) addtl: An additional condition is that the such joinder is
observe the rule on joinder of parties. If joinder of parties is
not otherwise prescribed by the provision of the
improper under Rule 3, the joinder of causes of action is also proper
rules on jurisdiction and venue.
under Rule 2, Section 5
Series of Transactions
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A
This pertains to transactions connected with the same subject
JOINDER OF CAUSES OF ACTION. BUT THERE CAN BE A JOINDER
matter of the suit.
OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
55
Amilhamja, Adj.
EXAMPLE: When there is only one plaintiff and one defendant: party renders all subsequent actions of the court null and void for
Suppose Melissa will secure three (3) loans from me. want of authority to act, not only as to their absent parties but even
as to those present. One who is not a party to a case is not bound by
Q: How many causes of action do I have if M will not pay me?
the decision of the court; otherwise, he will be deprived of his right
A: Three
to due process (Sepulveda, Sr. vs. Pelaez 450 SCRA 302).
Q: Now, can I join them in one complaint?
A: Yes.
Need of an order to implead an indispensable party
Q: Is there joinder of causes of action?
It is noteworthy that the Court in its rulings did not hold that the
A: Yes.
failure to join an indispensable party results in the outright dismissal
Q: Is there joinder of parties?
of the action. An outright dismissal is not the immediate remedy
A: NONE, because there is only one plaintiff and one defendant.
authorized by the Rules because under the Rules a non- joinder (or
misjoinder) of parties is not a ground for dismissal of an action.
So, there can be joinder of causes of action without joinder of parties Instead, parties may be dropped or added by the court on motion
because there is only one plaintiff and one defendant. But if you join of any party or on its own initiative at any stage of the action and
parties in Rule 3, automatically, there is joinder of causesof action. on such terms as are just (Sec. 11 Rule 3). It is when the order of the
This is the relationship of these two provisions.
court to implead an indispensable party goes unheeded may the
case be dismissed. The court is fully clothed with the authority to
Finally, the last two types of parties to the action are the so-called
dismiss a complaint due to the fault of the plaintiff as when, among
indispensable parties and necessary parties. (Section 7 and Section
others, he does not comply with any order of the court (Sec. 3 Rule
8, respectively)
17; Plasabas vs. CA GR No. 166519, March 31, 2009). (See also
Pamplona Plantation Co. vs. Tinghil 450 SCRA 421).
IV. INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable *Effect of failure to implead indispensable party

parties. Parties in interest without whom no -Failure to join an indispensable party will not result in the outright
final determination can be had of an action dismissal of the action. Instead, parties may be dropped or added by
shall be joined either as plaintiffs or the court on motion of any party or on its own initiative at any stage
defendants. (7) of the action and on such terms as are just. (Sec. 11, Rule 3).
Sec. 8. Necessary party. A necessary party is - It is when the order of the court to implead an indispensable party
one who is not indispensable but who ought goes unheeded may the case be dismissed for failure to comply with
to be joined as a party if complete relief is to the order of the Court (Sec. 3, Rule 17; Plasabas vs. CA 582 SCRA 686).
be accorded as to those already parties, or -goes unheeded- dismissed due to failure to comply*
for a complete determination or settlement
-Any decision rendered by a court without first obtaining the
of the claim subject of the action. (8a)
required jurisdiction over indispensable parties is null and void for
want of jurisdiction (Florete, Jr. vs. Florete, Sr. GR 174909, January
20, 2016), not only as to the absent parties but even as to those
An indispensable party is a real party in interest without whom no
final determination can be had of an action. (Sec. 7) Without the present (People vs. Go, GR 201644, September 24, 2014).
presence of this party, the judgment cannot attain real finality. -Accordingly, the responsibility of impleading all the indispensable
parties rests on the plaintiff. The defendant does not have the right
A person is not an indispensable party, however, if his interest in the to compel the plaintiff to prosecute the action against a party if he
controversy or subject matter is separable from the interest of the does not wish to do so, but the plaintiff will have to suffer the
other parties, so that it will not necessarily be directly or injuriously consequences of any error he might commit in exercising his option
affected by a decree which does complete justice between them. (Uy vs. CA 494 SCRA 535).
Also, a person is not an indispensable party if his presence would
merely permit complete relief between him and those already parties
to the action, or if he has no interest in the subject matter of the *Jurisprudential Illustration- note these for bar
action. It is not a sufficient reason to declare a person to be an -In an action for partition of land, all co-owners are indispensable
indispensable party that his presence will avoid parties. (De la Ra vs. De la Ra, 2 Phil. 294)
multiple litigation. In a joint obligation for instance, the interest of -In an action for annulment of partition, all the heirs are indispensable
one debtor is separate and distinct from that of his co-debtor and a parties (Caram vs. CA, 101 Phil. 315)
suit against one debtor does not make the other an indispensable
party to the suit. -In an action for recovery of ownership of land, all persons claiming
ownership are indispensable parties (Manza vs. Santiago, 96 Phil. 938).
Compulsory joinder of indispensable parties
Although normally, a joinder of parties is permissive (Sec. 6 Rule -The registered owner of a lot whose title the plaintiff seeks to nullify is
3), the joinder of a party becomes compulsory when the one an indispensable party (Cagatao vs. Almonte, GR No. 174004, October
involved is an indispensable party. Clearly, the rule directs a 9, 2013).
compulsory joinder of indispensable parties (Sec. 7, Rule 3). -A transferee of a property pendente lite is not an indispensable party,
as it would, in any even, be bound by the judgment against his
The presence of all indispensable parties is a condition sine qua predecessor (Santiago Land Development Corp. vs. CA, 267 SCRA 79).
non for the existence of judicial power. It is precisely when an
-The person whose right to the office is challenged is an indispensable
indispensable party is not before the court that the action should
party. No action can proceed unless he is joined (Lozano vs. Valencia,
be dismissed. Thus, the plaintiff is mandated to implead all the
227 SCRA 726).
indispensable parties considering that the absence of one such
56
Amilhamja, Adj.
St. Luke’s College of Medicine vs. Spouses Perez, GR No. 222740, -Solidarity does not make solidary obligor an indispensable party in a
September 28, 2016 suit filed by the creditor against another solidary debtor (Republic vs.
Sandiganbayan, 173 SCRA 72).
-Students of St. Lukes were required to undergo clerkship as
requirement for graduation and were assigned to Cabiao - In an action for collection of debt instituted by the creditor against
Community Clinic in Cabiao, Nueva Ecija. The clinic is owned by the the surety, the principal debtor is merely a necessary party. (Vaño vs.
Alo, 95 Phil. 495)
Municipality of Cabiao. The clinic where the students were housed
was gutted by fire which caused their death. - In an action for recovery of debt instituted by the creditor against
the debtor, the guarantor or surety is merely a necessary property.
-The parents of the student who died in fire filed a case against St. (Ibid.)
Lukes , et.al. But they did not implead the Municipality of Cabiao. -In an action for foreclosure of a real estate mortgage instituted by
- Is Municipality of Cabiao an indispensable party? the first mortgagee, the second mortgagee is merely a necessary
party. (Somes vs. Gov’t of Phil., 62 Phil. 432)
NO! Because the cause of action is the breach of contract
between the school and students
REVIEW: What is the difference between a surety and a guarantor?
-An indispensable party is defined by the Rules of Court as a party- The liability of guarantor to the creditor is only secondary. Meaning,
in- interest without whom no final determination can be had of an the guarantor is only liable to the creditor if the principal debtor
action. cannot pay like when the debtor is insolvent. On the other hand, a
- In the present case, respondents premise petitioners' liability on surety is principally liable to the creditor whether or not the debtor
can pay.
their contractual obligation to their students and, certainly,
complete relief and a final judgment can be arrived at by weighing
PROBLEM: In credit transactions, there is a creditor, debtor and
the claims and defenses of petitioners and respondents, without
surety. Debtor borrowed money from the creditor, then another
need of evaluating the claims and defenses of the Municipality of
acted as the surety. Now, suppose the debtor will not pay, the
Cabiao. If at all, the Municipality of Cabiao is a necessary party whose
creditor files now a case against the surety without the debtor. The
non-inclusion in the case at bar shall not prevent the court from
debtor was not included in the case.
proceeding with the action.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
Q: Distinguish indispensable from necessary party.
Now, the surety may be ordered to pay who can sue the principal
A: An INDISPENSABLE PARTY must be joined under any and all
debtor for reimbursement. Meaning, there is still a future case. Thus,
conditions, his presence being a sine qua non of the exercise of
there could be no complete relief between those who are parties.
judicial power, for without him, no final determination can be had
So, the debtor is a necessary party, and not indispensable. But it is
of the action. (Borlasa vs. Polistico, 47 Phil. 345) Stated otherwise,
advisable to join the debtor in one case, so that when the creditor
an indispensable party must be joined because the court cannot
claims from the surety, the latter can automatically claim from the
proceed without him. Hence, his presence is mandatory.
debtor. Multiplicity of suits is then, avoided.
A NECESSARY PARTY ought to be joined whenever possible in order
REVIEW: What is the difference between joint debtors and solidary
to adjudicate the whole controversy and avoid multiplicity of suits,
debtors? In solidary, the creditor can collect the whole obligation from
but if for some reason or another he cannot be joined, the court may
any of the debtors without prejudice to the right of the latter for
proceed without him and the judgment shall not prejudice his rights.
reimbursement of his share in the obligation from his co- debtors. On
(Ibid.) His presence is not mandatory because his interest is
the other hand, in joint obligation, the creditor can only get from a
separable from that of the indispensable party. He has to be joined
debtor the latter’s share in the whole obligation. Meaning, the creditor
whenever possible to afford complete relief to those who are
cannot compel the debtor to pay the shareof his co-debtor.
already parties.
PROBLEM: M and C are JOINT debtors of P100,000 (50-50 sharing). D is
Joint debtor
the creditor. Both did not pay D.
He is an indispensable party in a suit against him but a necessary
Q: If D files a case against M only, can the case proceed without C?
party in a suit against his co-debtor.
A: YES but D can only collect from M up to P50,000 because of their
Solidary debtor joint obligation. C is only necessary insofar as M’s share is concern. But
In a suit brought by a creditor against one solidary debtor, the other M is indispensable party insofar as his share is concern.
solidary debtor is neither indispensable nor a necessary party.
Sec. 9. Non-joinder of necessary parties to be
Necessary Party
pleaded. Whenever in any pleading in which a
-It is one who is not indispensable but who ought to be joined as a
claim is asserted a necessary party is not
party if complete relief is to be accorded as to those already
joined, the pleader shall set forth his name, if
parties, or for a complete determination or settlement of the claim
known, and shall state why he is omitted.
subject of the action (Sec. 8, Rule 3).
Should the court find the reason for the
-non-inclusion of NP will not affect the validity of judgment
omission unmeritorious, it may order the
inclusion of the omitted necessary party if
Example of Necessary Party
jurisdiction over his person may be obtained.
-In an action for collection of debt instituted by the creditor against
the surety, the principal debtor is merely a necessary party (Vano The failure to comply with the order for his
vs. Alo, 95 Phil. 495). inclusion, without justifiable cause, shall be
-In an action for foreclosure of REM instituted by the first deemed a waiver of the claim against such
mortgagee, the second mortgagee is merely a necessary party party.
(Somes vs. Govt. of Phil., 62 Phil. 432).
57
Amilhamja, Adj.
against somebody to recover property which they believe was owned

The non-inclusion of a necessary party does by their parents. Then, brother 4 say to sister 1, “Let us file a case.” But
not prevent the court from proceeding in sabi ni sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi
the action, and the judgment rendered mo ako pinilit eh!” Meaning, all of them will suffer because ayaw ni
therein shall be without prejudice to the sister 1 mag-file ng kaso.
rights of such necessary party. (8a, 9a) Q: Now, what is the remedy of the 4 brothers?
A: Under Section 10, include the one who refused as one of the
*Duty of Pleader When a Necessary Party is not joined defendants. If there is unwilling plaintiff, name him as defendant
While a necessary party is not indispensable to the final whether he likes it or not.
determination of the action, said party ought to be joined
whenever possible. If a pleader has no intent to implead a MISJOINDER AND NON-JOINDER OF PARTIES
necessary party, the pleader is under obligation to: Sec. 11. Misjoinder and non-joinder of parties.
(a) set forth the name of said necessary party, if known, and Neither misjoinder nor non-joinder of parties is
(b) state the reason why the necessary party is omitted. A reason ground for dismissal of an action. Parties may be
justifying the non- joinder of a necessary party is when said party dropped or added by order of the court on
is outside the jurisdiction of the court. motion of any party or on its own initiative at any
stage of the action and on such terms as are just.
Effect of justified failure to implead a necessary party Any claim against a misjoined party may be
Assuming that a necessary party cannot be impleaded, his non- severed and proceeded with separately. (11a)
inclusion does not prevent the court from proceeding with the
action. The judgment rendered shall be without prejudice to the This is similar to Section 6 of Rule 2 – misjoinder of causes of action is
rights of such necessary party. not a ground for dismissal of an action. Misjoinder or non-joinder at
parties is not a ground for a motion to dismiss because at any stage of
When court may order joinder of a necessary party and effect of the case, the court can order a misjoined party to beremoved or a party
failure to comply not joined to be included.
However, if the court finds no valid reason for not impleading a
party, the court may order the inclusion of the necessary party Q: Do you know what ‘MISJOINDER of parties’ mean?
under Section 9. And take note that under the new rules, the A: It means that two or more parties should not be joined but they are
failure to comply with the order of inclusion without justifiable improperly joined. A good example is, if there is no common question
cause shall be deemed a waiver of the claim against such of fact or law. Meaning, you do not have any business to be here but
(necessary) party. you are joined or misjoined. That is what we call misjoinder of parties.
It is also known as “spurious class suit.”
*Duty of pleader if a necessary party is not joined
-Whenever in any pleading in which a claim is asserted a necessary Well, ‘NON-JOINDER’ is different. A party who should be joinedwas
party is not joined, the pleader shall set forth the name of the not joined such as a necessary party.
necessary party, if his name is known, and shall state why such
party is omitted (Sec. 9, Rule 3) Q: What happens if a party is misjoined or if there is a non-joinder,
should the case be dismissed?
May the Court order joinder of necessary party? A: No, that is not a ground for dismissal.
-YES. If the reason given for the non-joinder of necessary party is
found by the court not meritorious, it may order the pleader to Q: So what is the remedy then?
join the omitted party if jurisdiction over his person may be
A: The remedy is to order the removal of the party who is misjoined,
obtained. (Sec. 9, Rule 3)
or to order the inclusion of the party who should be joined. And that
is not a defect which should cause the dismissal of the case because
Effect of failure to comply with the order of the court to implead
the court can always issue an order ordering the removal of a
somone
misjoined party or the inclusion of joinder of a party who should be
-It shall be deemed a waiver of claim against such party. (Sec. 9,
included.
Rule 3)
Q: Does it mean to say therefore, that the plaintiff has the license to
Effect of justified non-inclusion of a necessary party
include anybody in an action? Like for example, I have a case against
-The non-inclusion of a necessary party does not prevent the
somebody in the class, the trouble is in the meantime, I cannot
court from proceeding in the action, and the judgment rendered
identify who among you who did the wrong to me. So I will file a case
therein shall be without prejudice to the rights of such necessary
against all of you. Anyway later on, I can dump you. Now, is this
party. (Sec. 9, Rule 3)
allowed?
A: NO. That is not a license. What the law contemplates, according
Sec. 10. Unwilling co-plaintiff. If the consent of to the SC, the party was joined in good faith believing that he was a
any party who should be joined as plaintiff defendant but actually it turned out to be wrong. So, you have no
cannot be obtained, he may be made a right to sue anybody just like that. That is not an excuse for suing any
defendant and the reason therefor shall be party left and right. In the case of
stated in the complaint. (10)
REPUBLIC vs. SANDIGANBAYAN – 173 SCRA 72 [1989]
This is particularly true with INDISPENSABLE parties because the HELD: Section 11 of Rule 3 “does not comprehend whimsical and
case cannot proceed without him/her. irrational dropping or adding of parties in a complaint. What it really
contemplates is erroneous or mistaken non- joinder and misjoinder
EXAMPLE: There are 4 brothers and 1 sister. They have to file a case of parties. No one is free to join anybody in a complaint in court only
58
Amilhamja, Adj.
to drop him unceremoniously later at the pleasure of the plaintiff. class suit depends upon the attendant facts. (Mathay v. Consolidatred
The rulepresupposes that the original inclusion had been made in Bank & Trust Company, 58 SCRA 559; Borlasa v. Polistico 47 Phil. 345)
the honest conviction that it was proper and the subsequent
dropping is requested because it turned out that such inclusion Q: What are the CONDITIONS FOR A VALID CLASS SUIT?
was a mistake. And this is the reason why the rule ordains that the A: Under Section 12, the following are the conditions of a valid class
dropping is ‘on such terms as are just’” (also Lim Tan Hu vs. suit:
Ramolete 66 SCRA 425). 1) The subject matter of the controversy is one of
common or general interest to many persons (such as
Note: that objections to defects in parties should be made at the
the funds of the association in the case of POLISTICO);
earliest opportunity, i.e. the moment such defet becomes
and
apparent, by a Motion to Strike the Names of the Parties
2) The parties are so numerous that it is impracticable to
impleaded. Objections to misjoinder cannot be raised for the first
bring them all before the court;
time on appeal.
3) The parties actually before the court are sufficiently
numerous and representatives as to fully protect the
V. CLASS SUIT
interests of all concerned; and
4) The representatives sue or defend for the benefit ofall.
SEC. 12. Class suit. When the subject Berses v. Villanueva 25 Phil. 473; Sulo ng Bayan, Inc. v.
matter of the controversy is one of common Araneta 72 SCRA 347)
or general interest to many persons so
numerous that it is impracticable to join all A class suit does not require a commonality of interest in the questions
as parties, a number of them which the involved in the suit. What is required by the Rules is a common or general
court finds to be sufficiently numerous and interest in the subject matter of the litigation. The ‘subject matter’ of the
representative as to fully protect the action is meant the physical, the things real or personal, the money, lands,
interests of all concerned may sue or defend chattels, and the like, in relation to the suit which is prosecuted and not
for the benefit of all. Any party in interest shall the delict or wrong committed by the defendant. It is not also a common
have the right to intervene to protect his question of law that sustains a class suit but a common interest in the
individual interest. (12a) subject matter of the controversy. (Mathay v. Consolidated & Trust Bank
58 SCRA 559)
GENERAL RULE: if there are several real parties in interest, they shall
be included in the case whether indispensable or necessary. There is no class suit in an action filed by 400 residents initiated through
Example: There are 30 of us. The general rule is that all parties in a former mayor, to recover damages sustained due to their exposure to
interest, indispensable or necessary shall be included because under toxic wastes and fumes emitted by the cooking gas plant of a corporation
Sec. 2 “every action must be prosecuted or defended in the name of located in the town. Each of the plaintiffs has a separate and distinct
the real party-in-interest.” injury not shared by other members of the class. Each supposed plaintiff
has to prove his own injury. There is no common or general interest in
EXCEPTION: to the General Rule: Class Suit. the injuries allegedly suffered by the members of the class.
A class suit is an action where one or more may sue for the benefit
of all implying that the parties are so numerous and it is There is no class suit in an action for damages filed by the relatives of the
impracticable to bring them all to court. fatalities in a plane crash. There is no common or general interest in the
injuries or death of all passengers in the plane. Each has a distinct and
The requisites for said class action must also be complied with. separate interest which must be proven individually.
Meaning, some of you will sue to represent the rest. That is also Example is a taxpayer’s suit – filed in behalf of all the taxpayers in
known as the “doctrine of virtual representation.” The concept of the Philippines. And there is no specific number of persons that is
a class suit was first enunciated in the old case of provided by law.
BORLAZA vs. POLISTICO – 47 Phil. 345 Another example is a stckholder's derivative suit, though both are
FACTS: This case has something to do with raffle. A group of people subject to the other requisites of the corresponding governing law
decided to form an association which they called “Turnuhang especially on the issue of locus standi. (Regalado, p. 97)
Polistico.” You become a member of this association by contributing Now, we will go to some interesting cases on class suit decided by
a certain sum of money. And then every Sunday after mass, half of the Supreme Court:
the collection will go to the treasurer of the association. The other
half will be raffled off. This has been going on for months and years. SULO NG BAYAN vs. ARANETA, INC – 72 SCRA 347 [1976]
The time came when the funds of the association became very big. FACTS: This concerns the big property of the Araneta’s in Quezon City.
Some of the members, in behalf of all the members, decided to file It has been the subject matter of litigation for the past years – 3 or 4
a case against the officers to render an accounting of all the decades. It is a big track of land in Quezon City occupied by so many
amounts. The real parties in interest would be the members. people who want to acquire it. They are questioning the title of the
ISSUE: Is the suit filed by some members in behalf of some members Araneta’s
proper? So, Sulo (torch) ng Bayan is the association of squatters. Since the
HELD: YES, because if We will require all the members to appear, it properties of the Araneta is very big, they subdivided it. Then a case was
will be quite impossible. Therefore, some members must be made filed by Sulo ng Bayan Association against Araneta to annul the title of
to sue but only in behalf of all the members who are not around and the latter.
it is impracticable to bring them all to the court. A number of them
may sue for the benefit of all. ISSUE #1: Whether or not the action was filed in the name of the real in
An action does not become a class suit merely because it is interest.
designated as such in the pleadings. Whether the suit is or is not a HELD: Sulo ng Bayan is not the real party in interest. It violates Section
59
Amilhamja, Adj.
2 – “the action must be prosecuted and defended in the name of the surely plead denial of due process.
real parties in interest.” The members occupying the land are the
plaintiffs. The association is not the one occupying the lot. So, the Q: Distinguish a representative suit from a class suit.
first question is, who should be the plaintiff? It should be the A: In the case of
members. LIANA’S SUPERMARKET vs. NLRC – 257 SCRA 186 [May 31,1996]
FACTS: A labor union filed a case against the employer in behalf of
ISSUE #2: Whether or not the action was properly pleaded asa class
hundreds of employees. Is this a representative suit or a class suit?
suit
HELD: “What makes the situation a proper case for a class suit is the
HELD: NO. This is the more important reason why they cannot qualify
circumstance that there is only one right or cause of action pertaining
as a class suit: In a class suit, the subject matter is of common interest
or belonging in common to many persons, not separately or severally
to all.
to distinct individuals. The object of the suit is to obtain relief for or
against numerous persons as a group or as an integral entity, and not as
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs.
separate, distinct individuals whose rights or liabilities are separate
SULPICIO LINES – May 19, 1989 from and independent of those affecting the others.”
RE: Doña Paz Tragedy In a representative suit, there are different causes of action pertaining
FACTS: There we so many relatives who filed a case against Sulpicio different persons.
Lines and there was an attempt to file a class suit in behalf of “In the present case, there are multiple rights or causes of action
everyone who were drowned including those who were not pertaining separately to several, distinct employees who are members
identified. of respondent Union. Therefore, the applicable rule is that provided in
HELD: That cannot be. The survivors have no interest in the death of Rule 3 on Representative Parties. Nonetheless, as provided for in the
other passengers. The interest in this case is individual. What would Labor Code, alegitimate labor organization has the right to sue and be
have been proper is permissive joinderof parties because of common sued in its registered name. This authorizes a union to file a
question of tact or law, but not class suit. representative suit for the benefit of its members in the interest of
avoiding an otherwise cumbersome procedure of joining all union
OPOSA vs. FACTORAN – 224 SCRA 12 [1993] members in the complaint, even if they number by the hundreds.” For
FACTS: Oposa et al were all minors. Some were small boys duly convenience, the Labor Code allows a union to file a representative suit.
represented by their parents. They filed a case against then DENR
Secretary Factoran. The prayer in the case is to order the DENR to Juana Complex I Homeowners Assn., Inc., vs. Fil
cancel all existing Timber License Agreements (TLA’s), to cease and Estate, Land, Inc., GR No. 152272, March 5, 2012
desist from proceeding, accepting, processing, renewing all accruing -The developer closed a road which were used by the residents of inland
new TLA’s. So, in effect, it prays for a total log ban in the country to subdivisions for entry and exit to SLEX. Some of the resident filed a class
preserve the remaining forest all over the Philippines. suit against the developer.
These young boys sue with their parents. They are suing in their -Is class suit proper?
behalf, in behalf of the other citizens who are of their age because - YES.
they stand to suffer if the environment will be deteriorated. They say -the suit is clearly one that benefits all commuters and motorists who
that they are entitled to the full benefit, use and enjoyment of the use La Paz Road. They have common interest on the subject matter of
natural resources of our country’s rich tropical rainforests. They say, the controversy which is the closure of road.
the case was filed for themselves and others for the preservation of -Note the commonality of interest or general interest of the subject
our rainfor- est and we are so numerous that it is impracticable to matter
bring all plaintiffs to court. They say that they represent their Subj matter= right of way of the la paz road
generations and generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a It is important to note the following:
special and novel element. The personality of the minors to sue for 1) CLASS SUIT
the succeeding generations is based on the concept of inter- 2) REPRESENTATIVE SUIT
generational responsibility insofar as a balanced and healthful 3) DERIVATIVE SUIT – only peculiar to the corporation law
ecology is concerned. Every generation has a responsibility to where the minority files a suit in behalf of the entire
preserve the ecology. The minors’ right to a healthful environment corporation because an intra-corporate remedy is useless or
constitute at the same time the performance of the obligation to because of the failure of the board of directors, deliberate or
ensure the protection of the rights or the generations to come. otherwise, to act in protection of the corporation (Black’s 5th
Q: In case of doubt, should a class suit be allowed? Ed. 399; Lim vs. Lim-Yu 352 SCRA 216).
A: NO. When the issue is not so clear, a class suit should not be In a derivative, suit, the cause of action belongs to the corporation and
allowed because class suit is an exception to the general rule that all not to the stockholder who initiates the suit. In a class suit, the cause of
parties should be included. action belongs to the members of the class.
CADALIN vs. POEA ADMINISTRATOR – 238 SCRA 721 [1995] Class suit and permissive joinder of parties
HELD: While it is true that class suit is allowed, it should be allowed In a class suit there is one single cause of action pertaining to numerous
with caution because the fact that you represent others is only a persons while in permissive joinder there are multiple causes of action
fiction of law. For all you know, those others may not want to be separately belonging to several persons.
represented. That is why the court is extra- cautious in allowing class
suits because they are the exceptions to the condition sine qua non
requiring joinder of all indispensable parties.
In an improperly instituted class suit, there would be no problem it
the decision secured is favorable to the plaintiffs. The problem arises
where the decision is adverse to them. In which case, the parties who
are impleaded through their self- appointed representatives would
60
Amilhamja, Adj.
VI. ALTERNATIVE DEFENDANTS defendant.
Sec. 13. Alternative defendants. Where the Q: Can you sue somebody who is unknown?
plaintiff is uncertain against who of several A: YES, under Section 14.
persons he is entitled to relief, he may join
any or all of them as defendants in the BAR PROBLEM: While L was walking on the street. He was bumped by
alternative, although a right to relief against a car, say a Toyota Altis, 2001 model, color blue. Now, so far, he could
one may be inconsistent with a right of not determine who is the owner. If you are the lawyer of L, how would
relief against the other. (13a) you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown
Alternative defendants is also related to alternative causes of ac- defendant. I can place in my complaint, “L’, plaintiff, vs. the registered
tion – even if your right against one is inconsistent with your owner of Honda motor vehicle with plate number so and so.” And later
rightto relief against the other party, you may file a suit against if you discover the true identity of the owner, we can amend the
the alternative defendant. (c.f. Rule 2, Section 5 – Joinder of complaint to place the name of the defendant.
Causes of Action)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
You filed a case against the operators of two vehicles. In effect, Sec. 15. Entity without juridical personality as
your cause of action is either culpa aquiliana or culpa contractual. defendant. When two or more persons not
Is that not inconsistent? The law says, “although a right to relief organized as an entity with juridical
against one may be inconsistent with a right against the other.” In personality enter into a transaction, they may
other words, even if the two causes of action are inconsistent with be sued under the name by which they are
each other, it is allowed. generally or commonly known.
As a matter of fact, this is the best policy because the plaintiff is a In the answer of such defendant, the names
sure winner. The only question is, who among the two will be held and addresses of the persons composing said
liable. entity must all be revealed.
Although the law is silent, if there is such a thing as “alternative Requisites:

defendants,” there is no reason why the grounds for “alternative 1) there are two or more persons not organized as a
plaintiffs” should not be allowed. juridical entity;
2) they enter into a transaction;
Q: May plaintiffs join in the alternative? 3) a wrong or delict is committed against a third person in
A: YES, plaintiffs may join in the alternative under the same the course of such transactions.
principle as alternative joinder of defendants. When several
persons are uncertain as to who among them is entitled to relief Rule 1, Section 1 provides that only natural of juridical persons may
from a certain defendant, they may join as plaintiffs in the be sued.
alternative. This is also sanctioned by the rule on permissive
joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the Entity without juridical personality as defendant. Under the old law,
principal and his agent may join as plaintiffs in the alternative this was known as suing two or more persons involved in a business
against a defendant. If the agency is proved, the relief is under a common name. When two or more persons transact in a
awarded to the principal. If not, award is then made to the agent. business under a common name, they may be sued under their
Just as the rule allows a suit against defendants in the alternative, common name.
the rule also allows alternative causes of action and alternative
defenses (Sec. 2 Rule 8; Sec.5[b] Rule 6; Sec. 20, Rule 14) Q: Who are really the defendants here?
A: The persons involved.
Sec. 14. Unknown identity or name of Now, it is worded in this manner: “When two or more persons not
defendant. Whenever the identity or name of organized as an entity with juridical personality,” instead of a
a defendant is unknown, he may be sued as ‘common name.’ You cannot sue the entity because it has no
the unknown owner, heir, devisee, or by such juridical personality. But you do not also know the members of that
other designation as the case may require; entity, so the law allows you to file a case against the entity.
when his identity or true name is discovered,
the pleading must be amended accordingly. Under the second paragraph of Section 15, when the defendants file
(14) an answer, they must file under their names as they are really the
real parties in interest. When the lawyer answers the complaint, he
Requisites: is duty-bound to provide the names of all the defendants.
1) there is a defendant;
2) his/her identity is unknown; GENERAL RULE: actions must be filed against real parties in interest.
3) fictitious name may be used because of ignorance of EXCEPTIONS: (When may an action be filed without naming all the
defendant's true name and said ignorance is alleged in the parties in involved?)
complaint; 1. Class suit (Section 12, Rule 3);
4) identifying description may be used; sued as unknown 2. Entity without juridical personality (Section 15, Rule 3);
owner, heir, deviseee or other designation; 3. Any co--owner may bring an action for ejectment
5) amendment to the pleading when true name is discovered; (Article 487, New Civil Code)
and 4.
6) defendant is the defendant being sued, not a mere additional
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Amilhamja, Adj.
Instances where substitution of parties is proper • Actions based on the tortious conduct of the defendant
EFFECT OF DEATH OF A PARTY survive the death of the latter. (Melgar v. Benviaje 179SCRA
196)
Sec. 16. Death of party; duty of counsel. • Actions to recover real and personal property, actions to
Whenever a party to a pending action dies, enforce a lien thereon, and actions to recover damages for
and the claim is not thereby extinguished, it an injury to person or property and suits based on the alleged
shall be the duty of his counsel to inform the tortious acts of the defendant survive. (Board of Liquidators
court within thirty (30) days after such death v. Kalaw 20 SCRA 987). An action for quieting of title with
of the fact thereof, and to give the name and damages is an action involving real property. It survives and
address of his legal representative or the claim is not extinguished by the death of a party.
representatives. Failure of counsel to comply (Saligumba v. Calanog GRT+ 143365 Dec. 4, 2008
with this duty shall be a ground for disciplinary • An action of ejectment survives the death of a party. It
action. continues until judgment because the issue concerning the
illegality of the defendant’s possession is still alive, and upon
The heirs of the deceased may be allowed to its resolution depends the corollary issue of whether and
be substituted for the deceased, without how much damages may be recovered. (Tanhueco v. Aguilar
requiring the appointment of an executor or 33 SCRA 236; Vda de Salazar v. CA; Florendo jr. v.Coloma 129
administrator and the court may appoint a SCERA 304)
guardian ad litem for the minor heirs. • Actions for the recovery of money, arising from a contract
express or implied are not extinguished by the death of the
The court shall forthwith order said legal defendant. (Sec. 20 R 3)
representative or representatives to appear
and be substituted within a period of Duty of lawyer of the deceased
thirty It is the duty of the lawyer of the deceased to inform the court within
(30) days from notice. 30 days after the death of the party thereof. He mustinform the court
and give the name and address of his legal representative/s (e.g.
If no legal representative is named by the administrator or executor of the estate)
counsel for the deceased party, or if the one In legal ethics, the lawyer- client relationship is automatically
so named shall fail to appear within the terminated by the death of the client because the lawyer-client
specified period, the court may order the relationship is personal. Neither does he become the counsel of the
opposing party, within a specified time, to heirs of the deceased unless his services are engaged by said heirs
procure the appointment of an executor or (Lawas vs. CA 146 SCRA 173). But procedurally, he must tell the court
administrator for the estate of the and give the name of the legal representative. The latter may re-hire
deceased and the latter shall immediately the lawyer but under a new contract.
appear for and on behalf of the deceased.
The court charges in procuring such EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
appointment, if defrayed by the opposing Now, one of the radical changes again introduced by the new rules is
party, may be recovered as costs. (16, 17a) the effect of the death of the defendant in a money claim – action to
collect a sum of money.
Death of Party
-What is the duty of the lawyer in case a party dies? Sec. 20. Action on contractual money claims.
-If the party dies and the claim is not extinguished, his duty is to When the action is for recovery of money arising
inform the court of such fact within 30 days after such death and from contract, express or implied, and the
to give the name and address of the legal representatives of the defendant dies before entry of final judgment in
deceased party. the court in which the action was pending at the
time of such death, it shall not be dismissed but
-Heirs of the deceased may substitute for party shall instead be allowed to continue until entry
of final judgment. A favorable judgment
First of all, there are cases when a party to a pending action dies and obtained by the plaintiff therein shall be
the claim is not thereby extinguished (this is what they called an enforced in the manner especially provided in
action which survives as we will explain later) and there are certain these Rules for prosecuting claims against the
actions where if a party dies, the claim is automaticallyextinguished. estate of a deceased person. (21a)
Meaning, the death of a party causes death of the action. But these
Can the plaintiff file for a motion for execution?
are very few. In majority of cases when the party dies, the case or the
cause of action continues. -No. Lodged as claim to settlement
Requisites:
Examples of Actions which survive 1) the action must primarily be for recovery of money, debt,
• -Action to recover real or personal property or interest therein;
• -Actions to enforce lien thereon 2) the claim, subject of the action, arose from contract,
• -Actions to recover damages for an injury to persons express of implied; and
• -Actions arising from delicts. 3) defendant dies before the entry of final judgment of the
court in which the action was pending.
Examples of actions which survive the death of a party:
• Actions and obligations arising from delicts survive (Aguas Now, under the NEW RULE, the case will not be dismissed but
v. Llamas 5 SCRA 959) rather, the case will now continue until entry of final judgment.
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Amilhamja, Adj.
Meaning, until it becomes final and executory. opportunity to be heard.
Q: But of course, if the judgment is favorable to you (the plaintiff),

can you move to execute? Can you move to execute the decision Q: What will happen to the case?
against the property of the defendant? A: The following:
A: NO, because the law provides, “xxx a favorable judgment 1) If the successor intends to continue with the policy.
obtained by the plaintiff therein shall be enforced in the manner EXAMPLE: Mayor Pascua threatened to demolish the
specially provided in these Rules for prosecuting claims against building of Mr. Nuere as a hazard. If Mayor Pascua dies, Vice-
the estate of a deceased person.” Mayor Angeles becomes the mayor. If Vice-Mayor Angeles
who is now the mayor says that he will continue with the
Q: And what is that procedure? demolition, he will be substituted and he isgiven 30 days to
A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 comment.
of the Rules of Court, but there will be no execution. 2) If the successor does not adopt the policy, the case will be
dismissed.
Q: We are talking of death of a party in a pending civil action.
While there is a case and a party dies, what will happen to the Sec. 18. Incompetency or incapacity. If a party
case? becomes incompetent or incapacitated, the
A: I will distinguish Is that an ACTION WHICH DOES NOT SURVIVE court, upon motion with notice, may allow the
or an ACTION WHICH SURVIVES? action to be continued by or against the
incompetent or incapacitated person assisted by
*Relate Sec. 20, Rule 3 to Sec. 5, Rule 86: his legal guardian or guardian ad litem.
-All claims for money against the decedent, arising from contract, (19a)
express or implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and expense for the EXAMPLE: F files a case against K. While the case is pending, K
last sickness of the decedent, and judgment for money against the becomes insane. The case will continue but K has to be assisted by
decedent, must be filed x x x x x (Section 5, Rule 86). his guardian ad litem.
-Section 1. Notice to creditors to be issued by court. —
Immediately after granting letters testamentary or of This is related to Rule 3, Section 3 on representative party but in
administration, the court shall issue a notice requiring all persons Section 3, K should be already insane before the case is filed.
having money claims against the decedent to file them in the
office of the clerk of said court (Rule 86). Sec. 19. Transfer of interest. In case of any
transfer of interest, the action may be
continued by or against the original party,
Sec. 17. Death or separation of a party who unless the court upon motion directs the
isa public officer. When a public officer is a person to whom the interest is transferred to
party in an action in his official capacity and be substituted in the action or joined with the
during its pendency dies, resigns, or original party. (20)
otherwise ceases to hold office, the action
may be continued and maintained by or General Rule: The rule does not consider the transferee an
against his successor if, within thirty (30) indispensable party. Hence, the action may proceed without the
days after the successor takes office or such need to implead him.
time as may be granted by the court, it is Exception: When the substitution by or joinder of the transferee is
satisfactorily shown to the court by any ordered by the court.
party that there is a substantial need for
continuing or maintaining it and that the A transferee pendent lite:
successor adopts or continues or threatens 1) stands in exactly the same position as its predecessor-in-
to adopt or continue the action of his interest, the original defendant; and
predecessor. Before a substitution is made, 2) bound by the proceedings had in the case before the
the party or officer to be affected, unless property was transferred to it, even if not formally
expressly assenting thereto, shall be given included as defendant. (Herrera, vol. 1 p. 405)
reasonable notice of the application
therefor andaccorded an opportunity to be The case will be dismissed if the interest of plaintiff is transferred
heard. (18a) to defendant unless there are several plaintiffs, in which case, the
remaining plaintiffs can proceed with their own cause of action.
Requisites:
1) public officer is a party to an action in his official capacity; EXAMPLE: R files a case against L to recover a piece of land. While
2) during the pendency of the action he either dies, resigns, the case is pending, L sold the land to E. E now assumes the risk and
or other wise ceases to hold office; takes the property subject to the outcome of the case.
3) it is satisfactorily shown to the court by any party, within Q: Can the case continue against L?
30 days after the successor takes office, that there is a A: YES.
substantial need for continuing or maintaining the action; 1) If L loses and cannot pay, E is subsidiarily liable;
4) that the successor adopts or continues or threatens to 2) L can be removed and E will be substituted; or
adopt or continue the action of his predecessor; and 3) L can stay and E will be added.
5) the party or officer affected has been given reasonable
notice of the application therefor and accorded an
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Amilhamja, Adj.
In all 3 cases, E will be bound by the judgment. ground of psychological incapacity. K alleges that Article 38 of the
Family Code is unconstitutional. So the court will rule on the validity
Sec. 21. Indigent party. A party may be of the law in which case, the Solicitor General has to be involved in
authorized to litigate his action, claim or the case to defend the validity of the law.
defense as an indigent if the court, upon REASON: The Solicitor General is the legal counsel of the Republic of
an ex parte application and hearing, is the Philippines whose duty is to defend all the official acts of the
satisfied that the party is one who has no Government.
money or property sufficient and available
for food, shelter and basic necessities for
himself and his family.
Such authority shall include an exemption

from payment of docket and other lawful fees,
and of transcripts of stenographic notes which
the court may order to be furnished him. The
amount of the docket and other lawful fees
which the indigent was exempted from paying
shall be a lien on any judgment rendered in
the case favorable to the indigent, unless the
court otherwise provides.
Any adverse party may contest the grant of

such authority at any time before judgment is
rendered by the trial court. If the court should
determine after hearing that the party
declared as an indigent is in fact a personwith
sufficient income or property, the proper
docket and other lawful fees shall be assessed
and collected by the clerk of court. If payment
is not made within the time fixed by the court,
execution shall issue for the payment thereof,
without prejudice to such other sanctions as
the court may impose. (22a)
In criminal cases, the court assigns a counsel de officio. Under the

Constitution on Bill of Rights, no person shall be denied access to
courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an indigent

if he files an application (ex-parte application) to allow him to litigate
as an indigent litigant. But if the indigent wins, he has to pay the fees
– file now, pay later) – the amount shall be a lien on any favorable
judgment.
The third paragraph is new. The other party may contest the claim
of the indigent if he is really an indigent or not.
Sec. 22. Notice to the Solicitor General. In any

action involving the validity of any treaty, law,
ordinance, executive order, presidential
decree, rules or regulations, the court, in its
discretion, may require the appearance of the
Solicitor General who may be heard in person
or through a representative duly designated
by him. (23a)
The rule is that only the Solicitor General can bring and defend
actions on behalf of the Republic of the Philippines and that actions
filed in the name of the Republic of the Philippines or its agencies
and instrumentalities, if not initiated by the Solicitor General will
be summarily dismissed. The authority of the Solicitor General is
embodied in Sec. 35(1) Chapter 12, Title III and Book IV of the
Administrative Code of 1987 (Cooperative Development Authority
vs. Dolefil Agrarian Reform Beneficiaries Cooperative 382 SCRA 552).
EXAMPLE: M files a case against K for declaration of nullity on the
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Amilhamja, Adj.
Rule 4 these rules, the court may motu proprio dismiss a case from an
examination of the allegations of the complaint and such evidence
as may be attached thereto on any of the grounds apparent
VENUE OF ACTIONS therefrom. The dismissal may be made outright, which means
that the court may do so without need of waiting for the filing
Venue of amotion to dismiss. (Sec. 4, Rules on Summary Procedure)
-is the place or the geographical area in which a court with
jurisdiction may hear and determine a case or the place where The initial step is to determine if the action is personal or real. If it
a case is to be tried (Black’s Law Dictionary; City of Lapu-Lapu ispersonal, the venue is transitory hence, the venue is the residence
vs. PEZA, GR No. 184203, November 26, 2014). of the plaintiff or the defendant at the option of the plaintiff. If the
-Venue in civil cases is procedural and not substantive. defendant is a non-resident, the venue is the residence of the
Thus, it may be waived or subject to agreement of the parties. plaintiff or where the non-resident defendant may be found, at the
election of the plaintiff.(Sec. 3)
How venue is determined
As said before, in order to know the venue of a particular If the action is real, the venue is local hence, the venue is the place
action, where the real property involved, or any portion thereof, is
A: VENUE is the place, or the geographical area where an action situated. (Sec. 1). However, when the defendant is a non-resident
is to be filed and tried. In civil cases, it relates only to the place of and is not found in the Philippines, and the action affects the
the suit and not to the jurisdiction of the court. (Manila Railroad personal status of the plaintiff, or any property of the defendant
Company vs. Attoryney General, 20 Phil. 523) located in the Philippines, the venue is the residence of the plaintiff
or where the property or any portion thereof is situated. (Sec. 3)
Venue not a matter of substantive law
Venue is procedural and not substantive. In civil cases, venue is VENUE OF REAL ACTIONS
not a matter of jurisdiction. (Heirs of Pedro Lopez vs. de Castro,
324 SCRA 591 [2000]). Venue becomes jurisdictional only in a Section 1. Venue of real actions. Actions
criminal case. In the latter case, where the information is filed in affecting title to or possession of real
a place where the offense was not committed, the information property, or interest therein, shall be
may be quashed for lack of jurisdiction over the offense charged. commenced and tried in the proper court
(Sec. 3, R 117) This is not so in a civil case where improper venue which has jurisdiction over the area wherein
is not equivalent to lack of jurisdiction. Because it is merely the real property involved, or a portion
procedural, the parties can waive the venue of a case. thereof, is situated.
Means of waiving venue: Forcible entry and detainer actions shall be

1. failure to object via motion to dismiss; commenced and tried in the municipal trial
2. affirmative relief sought in the court where the case court of the municipality or city wherein the
isfiled even if venue is improper; real property involved, or a portion thereof, is
3. affirmative defense in an answer; situated. (1[a], 2[a]a)
4. voluntary submission to the court where the case is
filed; Q: Why does the law say “tried in the proper court?”
5. laches A: It is because proper court will now be the MTC or the RTC,
depending on the assessed value of the property.
Dismissal based on improper venue The venue is the place where the real property or any portion thereof
1) The trial court cannot motu proprio dismiss a case on is located.
the ground of improper venue. The court may motu If a property is located at the boundaries of two places: file the
proprio dismiss an action in case of lack of jurisdiction case in either place at the option of the plaintiff.
over the subject matter, litis pendencia, res judicata
and prescription, but not for improper venue. (Rudolf When the case involves two properties located in two different
Lietz Holdings, Inc. v. Register of Deeds of Paranaque places:
City, 344SCRA 68; Universal Robina Corp. v. Lim GR 1) if the properties are the object of the same transaction,
154338, Oct. 5, 2007) file it in any of the two places; and
2) Unless and until the defendant objects to the venue in 2) if they are the subjects of two distinct transactions,
a motion to dismiss, the venue cannot be truly said to separate actions would be filed in each place unless
be improperly laid, because the venue although properly joined.
technically wrong may be acceptable to the parties for Venue of Actions
whose convenience the rules on venue have been
devised. The trial court cannot preempt the -Forcible entry and detainer actions shall be commenced and tried in
defendant’s prerogative to object to the improper the Municipal Trial Court of the municipality or city wherein the real
laying of the venue by motu proprio dismissing the property involved, or a portion thereof, is situated (Section 1, Rule 4).
case. (Dacuycoy v. IAC 195 SCRA 641) -Against non-resident - If any of the defendants does not reside and is
not found in the Philippines, and the action affects the personal status
When court may motu proprio dismiss based on improper of the plaintiff, or any property of said defendant located in the
venue Philippines, the action may be commenced and tried in the court of the
The court may dismiss on improper venue, at its instance, in an place where the plaintiff resides, or where the property or any portion
action covered by the rules on summary procedure. Under thereof is situated or found (Section 3, Rule 4).
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Amilhamja, Adj.
the ownership of real property. It seems to be personal but in reality, it

is a real action. So, the venue is governed by Section 2.
Venue in real action
But there are also actions which appear to be real but in reality, are
-SECTION 1. Venue of Real Actions. — Actions affecting title to or
personal actions. Like what happened in the case of
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 LA TONDEÑA DISTILLERS INC vs. PONFERRADA - 264 SCRA 540
(Rule 4). [1996]
FACTS: A entered into a contract where she committed herself to sell
-Forcible entry and detainer actions shall be ommenced and tried in her land to B. A even placed a lis pendens on the property but later
the Municipal Trial Court of the municipality or city wherein the real she backed out. So B will file a case against A for specific performance
property involved, or a portion thereof, is situated (Section 1, Rule to compel her to sign the deed of sale.
4) ISSUE: Is this real or personal action?
VENUE OF PERSONAL ACTIONS HELD: It is a PERSONAL ACTION because you are notquestioning my
Sec. 2. Venue of personal actions. All other ownership. Here, the plaintiff recognizes that the defendant is still
actions may be commenced and tried where the owner, which is the reason why he is still filing the case to compel
the plaintiff or any of the principal plaintiffs him to sell.
resides, or where the defendant or any of the Thus, it should be filed at the residence of the parties. “The complaint
principal defendants resides, or in the case of is one for specific performance with damages. Private respondents
a non-resident defendant where he may be do not claim ownership of the lot but in fact recognized title of
found, at the election of the plaintiff. (2[b]a) defendants by annotating a notice of lis pendens. In one case, a
similar complaint for specific performance with damages involving
Venue of personal actions: real property, was held to be a personal action, which may be filed in
1) Where the plaintiff or any of the principal plaintiffs the proper court where the party resides. Not being an action
resides; involving title to or ownership of real property, venue, in this case,
2) where the defendant or any of the principal defendants was not improperly laid before the RTC of Bacolod City.” (Adamos vs.
resides; or Tuazon 25 SCRA 30 [1968])
3) in case of a non-resident defendant but found in the
Philippines, in the place where he may be found. RESIDENCE OF THE PARTIES
Where is the residence of the parties? Because residence in law could
Note: All at the election of the plaintiff. mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR
PHYSICAL RESIDENCE.
Situation: suppose, there are four (4) plaintiffs and 4 defendants and
the 4 plaintiffs reside in 4 different cities or municipalities. So there With the exception of only one case, the word ‘residence’ and ‘venue’
are 8 choices for venue because the law says, “where the plaintiff or has been uniformly interpreted by the SC to mean ACTUAL or
any of the principal plaintiffs or where the defendant or any of the PHYSICAL RESIDENCE not legal domicile. Alright, there are so many
principal defendants reside…” cases already: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA 189);
HERNANDEZ vs. RURAL BANK OF THE PHIL (81 SCRA 75); RAYMOND
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA 54).
there is such a thing as nominal defendant and nominal plaintiff..
As to the issue of venue, the petitioners' argument that the action
EXAMPLE of a nominal party: When a party wants to file a case to should have been instituted with the RTC of Makati City, and not the
annul an execution sale or to annul a levy, normally it impleads the RTC of Imus, Cavite, is misplaced. Although the end result of the
sheriff as party. But the sheriff is not the principal party but is only respondent's claim was the transfer of the subject property to his
a NOMINAL PARTY. So, the residence of the sheriff is not considered name, the suit was still essentially for specific performance, a
the sheriff being a nominal party only. personal action, because it sought Fernando's execution of a deed of
absolute sale based on a contract which he had previously made. (Sps.
This is the original concept of forum shopping which is legitimate but Saraza vs. Francisco, GR No. 198718, November 27, 2013)
had later been abused. That is why there is a SC case where Justice
Panganiban cited the history of forum shopping entitled FIRST Based on the distinctions between real and personal actions, an
PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), action to recover the deficiency after the extrajudicial foreclosure of
January 24, 1996) the real property mortgage is a personal action, for it does not affect
title to or possession of real property, or any interest therein. (BPI
How to distinguish real from personal action Family Savings Bank, Inc. vs. Yujuico, GR No. 175796, July 22, 2015)
There are instances when it is easy to distinguish whether the action
is real or personal and there are also instances when it is difficult.
What is the meaning of “residence” in personal action?
EXAMPLE: An action for annulment of a contract of sale or rescission
of contract of sale of real property. Generally, an action for -It means the place of abode, whether permanent or temporary, of
annulment or rescission is a personal action. But suppose, I will file the plaintiff or the defendant, as distinguished from “domicile” which
a complaint to annul or rescind a contract or a deed of sale over a denotes a fixed permanent residence to which, when absent, one has
parcel of land which we made one year ago which land is situated in the intention of returning (Dangwa Transporation Company vs.
Mandaue City and the purpose of my action is to recover the Sarmiento, GR No. L-22795, January 31, 1977).
ownership of that land is this a real or personal action? -Residence of a domestic corporation is the place within the
Philippines, where its principal office is located (Section 14[3],
It is a real action because the primary object of the suit is torecover Corporation Code; Cohen vs. Benguet Commercial Co., 34 Phil. 526).
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Amilhamja, Adj.
Like for example, your neighbor borrowed money from you and the
RESIDENCE OF A CORPORATION next thing you heard is that he left the country. He has already
Under Rule 1, a corporation can sue and be sued. But what is the migrated to the states. Of course, you know his address there. Can
residence of a corporation? Under the corporation law, the you sue him in the Philippine court, a defendant who is no longer
residence of a corporation is the place where its head or main residing here and is not found in the Philippines?
office is situated. A: NO, you cannot. Charge it to experience.
CLAVECILLA RADIO SYSTEM vs. ANTILLON – 19 SCRA 39 [1967] Q: Why can you not sue a person not residing here in the Philippines
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla and is not found here in the first place?
questioned the venue because its head office is in Manila. The A: There is no way for Philippine courts to acquire jurisdiction over
plaintiff argued that it can be sued because it has a branch in his person. Otherwise, he will not be bound by the decision.
Cagayan. But in our discussion on the element of jurisdiction: subject matter,
ISSUE: Is a corporation resident of any city or province wherein it person, res and issues, I told you that the res or the thing in dispute is
has an office or branch? important because sometimes it takes the place of jurisdiction over
HELD: NO. Any person, whether natural or juridical, can only have the person of the defendant. So even if the Philippine court cannot
one residence. Therefore, a corporation cannot be allowed to file acquire jurisdiction over the person of the defendant but the subject
personal actions in a place other than its principal place of of the controversy (res) is in the Philippines, then the non-resident
business unless such a place is also the residence of a co-plaintiff defendant can also be sued in the Philippines. The court can now
or defendant. acquire jurisdiction over the res, subject and since the res is here, the
judgment can be enforced. It is not a useless judgement anymore.
The ruling in the case of ANTILLON was reiterated in the 1993 case
EXAMPLE: He is there but he is the owner of a piece of land here. I
of YOUNG AUTO SUPPLY CO. vs. COURT OF APPEALS (223 SCRA
want to file a case to recover ownership over the land here in the
670)
Philippines.
Because the law said “where the plaintiff or any of the principal
plaintiffs..” So if the corporation is suing with someone from Cebu
Q: Can I sue the non-resident defendant?
City, even if its head office is in Manila, the corporation can file in
A: YES under Section 3. Even if the person is abroad, the res of the
Cebu City because of the residence of my co-plaintiff or the
property in dispute is here and if he loses the case the judgment can
residence of the defendant. But outside of that, a corporation
be enforced – transfer the property to you. So it is not a useless
cannot sue outside of its head office because its residence is there.
judgment. That is what Section 3 is all about.
That is the case of YOUNG AUTO SUPPLY.
Sec. 3. Venue of actions against nonresidents.
“OR IN THE CASE OF A NON-RESIDENT DEFENDANT WHERE HE
- If any of the defendants does not reside and is
MAY BE FOUND”
not found in the Philippines, and the action
Suppose the defendant is not residing here in the Philippines but
affects the personal status of the plaintiff, or any
is just on vacation and you want to sue him. What is now the point
property of said defendant located in the
of reference?
Philippines, the action may be commenced and
tried in the court of the place where the plaintiff
Did you notice the phrase “or in the case of a non-resident
resides, or where the property or any portion
defendants where he may be found.” Now what does that mean?
thereof is situated or found, (2[c]a)
It means to say that the defendant is not actually residing in the
Philippines but he is temporarily around because he is found in the
Q: What is the difference between the non-resident defendant in
Philippines. Example is a balikbayan who is still on vacation.
Section 2 and the non-resident defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the
PROBLEM: Suppose a Filipino who is already residing abroad
Philippines. But in Section 3, he does not reside and is not found in
decided to come back this Christmas for a vacation. When he
the Philippines. So, physically, he is not around.
landed at the Manila Domestic Airport, you met him as your friend
and the first thing he requested you is if he could borrow some
Venue of ordinary civil actions against non-residents:
pesos because his money is in dollars. He borrowed from you
1) Non-resident but found in the Philippines;
P15,000.00 promising to pay in a week’s time. One week later, still
he has not paid you and obviously it seems he will not pay you. So a) for personal actions, where the plaintiff resides or
where he may be found at the election of the plaintiff;
you decided to sue him while he is around to collect, where is the
venue of the action? b) for real actions, where the property is located.
A: The law says, generally where the plaintiff resides or where the 2) Non-resident not found in the Philippines
defendant resides. The trouble is, the defendant has no residence An action may be filed only when:
here because he is already residing abroad. But he is temporarily 1.) The action affects the personal status of the plaintiff and
here in the Philippines. venue is the place where the plaiantiff resides; or
2.) The action affects the property or any portion thereof of said
You can sue him where he may be found. If he decides to stay in defendants is located here in the Philippines, and venue is
Cebu, that is where the proper venue rather his permanent the place where the property or any portion thereof is
residence. So where he may be found is the alternative venue. The located.
phrase “where he may be found” means where he may be found
here in the Philippines for a non-resident defendant but ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
temporarily staying in the Philippines.
EXAMPLE: A young child was abandoned by his illegitimate father.
The illegitimate father left the Philippines for good. The son wants to
Q: Suppose a defendant is a non-resident and he is not even here.
file a case against the father for compulsory recognition, at least to
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Amilhamja, Adj.
improve his status. resides at the time of the commission of the

offense.
Q: Can the child file a case for compulsory acknowledgment here
in the Philippines against the father for compulsory If one of the offended party is a public officer, whose office
acknowledgment? is in the City of Manila at the time of the commission of the
A: YES because the action involves the person status of the offense, the action shall be filed (a) in the RTC of Manila, or
plaintiff. The res is the status of the plaintiff who happens to be in (b) in the RTC of the province where he held office at the
the Philippines. time of the commission ofthe offense.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION 2.) Section 5 (4), Article VIII, 1987 Constitution – The SC may order
THEREOFOF SAID DEFENDANTS LOCATED HERE IN THE a change of venue or place of trial to avoid a miscarriage of
PHILIPPINES justice as what happened in the case of Mayor Sanchez.
Example: The defendant who is already abroad owns a piece of
land located here in the Philippines and I want to recover the
ownership of the piece of land. B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING
Q: What is the res? BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE
A: The res is the land which is situated here in the Philippines. THEREOF.
Therefore I can sue that defendant even if he is there because the
court can acquire jurisdiction over the res. The parties may agree on a specific venue which could be in a place
where neither of them resides. Take note that the stipulation must be:
In order to validly sue in the Philippine court, a defendant who is 1) in writing;
no longer residing here and is no longer found here, the action 2) made before the filing of the action and
must be: 3) exclusive as to the venue.
1) action in rem; or While the first two rarely pose a problem, the third has been a source
2) at least quasi-in rem.
of controversy in the past.
In the examples given, if the action is for compulsory recognition,
A stipulation that “any suit arising from this contract shall be filed
that is actually an action in rem. In the suit which involves a
only in Quezon City” is exclusive in character and is clear enough to
property here in the Philippines, at least that is an action quasi-in
preclude the filing of the case in any other place. In this case, the
rem.
residences of the parties are not to be considered in determining the
But if the action is purely in personam, then there is no way
venue of the action.
by which you can sue him. Example is an action to collect an unpaid
loan.
Agreement on venue may be:
1. Restrictive
Q: Where is now the proper venue of the action against the non-
• The suit can only be filed in the place agreed upon by the parties.
residents?
2. Permissive
A: The law says where the plaintiff resides – action which affects • The place agreed upon is in addition to the place provided for in the
the personal status of defendants, where the property of the Rules
defendant located here in the Philippines
POLYTRADE CORP. vs. BLANCO – 30 SCRA 187
Sec. 4. When rule not applicable. – FACTS: C and J are both residing here in Cebu City. J borrowed money
This rule shall not apply - from C, and executed a promissory note in favor of the latter which
a) In those cases where a specific rule or law says, “I promise to pay C the sum of P200,000one year from today.
provides otherwise; or In case of a suit arising from this promissory note, the parties agree to
b) Where the parties have validly agreed in writing sue and be sued in the City of Manila.”
before the filing of the action on the exclusive When the note matured, J did not pay so C filed a case to collect the
venue thereof. (3a, 5a) unpaid loan here in Cebu City but J challenged the venue on ground
that the venue is agreed upon which is Manila. According to C, the
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES venue is correct because both of us are residing here in Cebu City and
OTHERWISE; under Rule 4, the venue is where I reside or you reside, at my option
ISSUE: Who is correct in this case?
HELD: Plaintiff is correct notwithstanding the stipulation. Why? When.
Q: What cases provide for venue of the action which may be
different from what Rule 4 says? the parties stipulated on the venue of the civil action, other than those
found in the Rule of Court, the stipulated venue is considered merely
A: The following:
1.) A civil action arising from LIBEL under Article 360 of the as an ADDITION to where the parties reside. Unless the stipulation
contains RESTRICTIVE words which shows the intention of the parties
Revised Penal Code.
Libel could give rise to a civil action for to limit the place stipulated as the exclusive venue.
damages. It is considered under the RPC asone
of the independent civil actions. The criminal So in the second exception where there is an agreement in writing
action for libel shall be filed simultaneously or on the exclusive venue, the word exclusive is very important as taken
separately in the RTC of the: in the ruling in POLYTRADE vs. BLANCO. So if the venue is not
a.) province or city where the libelous article is exclusive, Rule 4 still applies and the stipulated venue is just an
printed and first published; or additional one.
b.) where any of the offended parties actually
Of course, there are stipulations where you can see clearly the
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Amilhamja, Adj.
intention of the parties to limit the venue. But sometimes, Cagayan de Oro City, they filed a suit for damages against Sweet
there are stipulations in which it is difficult to decipher the real Lines. They file the case in the former CFI, now RTC, of
intention of the parties whether exclusive or not. Examples of
Cagayan de Oro City because the plaintiffs are residents of Cagayan
clear stipulations which calls for the application of the POLYTRADE
de Oro City.
ruling: in the City of Manila only or the suit shall be filed in the City
Sweet Lines filed a motion to dismiss questioning the venue of the
of Manila and in no other place.
action because in the ticket issued by Sweet Lines, it is stipulated that
“…in case of a civil action arising from thecontract of carriage, the
The Polytrade doctrine was further applied in the case of venue of the action shall be the City of Cebu ONLY and in no other
Unimasters Conglomeration Inc. v. CA 267 SCRA 759. In this case, place.” So there is a restrictive word. Obviously the lawyers of Sweet
it was ruled that a stipulation stating that “all suits arising out of
Lines knew about Polytrade because they moved to dismiss the case
this Agreement shall be filed with/in the proper courts of Quezon
citing this case.
City,”- is only permissive and does not limit the venue to the
Quezon City courts. As explained the said case:
Judge Teves denied the motion to dismiss the case despite the
stipulation. According to him, it is unfair. If I will dismiss the case
The following stipulations were likewise treated as merely based on this stipulation, the aggrieved parties will be discouraged in
permissive and did not limit the venue: going to Cebu. It is very expensive and they will be inconvenienced.
a. xxxThe agreed venue for such action is Makati, Metro
But, if the case will go on in Cagayan de Oro, it will not
Manila, Philippines (Mangila v. CA 435 Phil. 870). inconvenienced Sweet Lines because they have their branch office,
b. “In case of litigation hereunder, venue shall be in the their manager and their own lawyer.
CityCourt or Court of First Instance of Manila as the ISSUE: Whether or not Cagayan de Oro is the proper venue.
case may be for determination of any and all questions HELD: YES. Judge Teves was correct in not dismissing the case.
arising thereunder.” (Phil. Bank of Communications v. First of all, the stipulation is placed in the ticket. These people never
Trazo, GR 165500, Sug. 30, 2006) even bothered to read this. So either you take it or you leave it.
c. “It is hereby agreed that in case of foreclosure of this Therefore, the passengers did not have a hand in preparing that
mortgage under ACT 3135, as amended, and stipulation. So, the contract is a contract of adhesion.
Presidential Decree No. 385, the auction sale shall be Second, again for the sake of equity, to be fair that these poor people
held at the capital of the province, if the property is will be compelled to go to Cebu to file a case there. They will be
within the territorial jurisdiction of the province discouraged. It is very expensive to go back and forth to Cebu.
concerned, or shall be held in the city, if the property is Whereas, Sweet Lines has the resources, the means, the lawyers here
within the territorial jurisdiction of the city in Cagayan to litigate. Therefore, it would be inequitable to compel
concerned”(Langkaan Realty Development, Inc. v. them or to apply the stipulation there.
UCPB GR 139427, Dec. 8, 2000)
d. “All court litigation procedures shall be conducted in The ruling in SWEET LINES is an exception to POLYTRADE despite the
the appropriate courts of Valenzuela City, Metro exclusive stipulation. The SC said that the refusal of the court to apply
Manila” (Auction in Malinta, inc. v. Luyaben GR 173979, it is correct. There is no grave abuse of discretion on the part of Judge
Feb. 12, 2007) Teves.
—A restrictive stipulation on venue is not binding when the

validity of the contract is assailed (Briones vs. CA, GR No. Illustration:
204444, January 14, 2015). -“Parties agree to sue and be sued in in courts of Manila” – the SC
ruled that it is not restrictive but only permissive (Polytrade Corp. vs.
Examples of words with restrictive meanings are: xxx “only”, Blanco, 30 SCRA 187).
“solely”, “exclusively in this court”, “in no other court save –“, - “All suits arising out of this agreement shall be filed within the
“particularly”, “nowhere else but/except --, or words of equal proper courts of Quezon City” – SC ruled that it is only permissive
import xxx” (Pacific Consultants International Asia, Inc. v. (Unimasters Conglomeration, Inc., vs. CA, 267 SCRA 759, 776).
Schonfeld, GR 166920 Feb. 19, 2007) - “The agreed venue shall be in the City of Manila – permissive
(Mangila vs. CA, 387 SCRA 162, 174-175).
This conflict was resolved in the case of PHIL. BANKING vs.
TENSUAN (228 SCRA 385) where the SC ruled that the ruling in -There is no motu propio dismissal based on improper venue
BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has (Republic vs. Glasgow Credit and Collection Services, 542 SCRA
been rendered obsolete by the POLYTRADE ruling and subsequent 95, 101).
cases reiterated it. So the ruling in POLYTRADE is the correct -Except cases under the rules on summary procedure (Sec. 4,
ruling. Summary Procedure; Sec. 9,A.M. No. 08-8-7, SC).
When stipulation would be contrary to public policy of making Q: Distinguish JURISDICTION from VENUE.
courts accessible to all who may have need of their service A: The following are the distinctions:
1) JURISDICTION refers to the authority of the court to
SWEET LINES vs. TEVES – 83 SCRA 361 hear the case, whereas
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, VENUE refers only to the place where the action is
a shipping company with the head office in Cebu. The respondent to be heard or tried;
Teves is the former City Fiscal of Davao City, former Mayor and
became judge of CFI of Cagayan de Oro City. 2) JURISDICTION over the subject matter cannot he
There was a group of passenger who rode on the Sweet Lines waived; whereas
bound for Cebu City. During the trip, they were given a crude VENUE is waivable and can be subject of agreement;
treatment by the officers of the vessel. When they came back in
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Amilhamja, Adj.
3) JURISDICTION is governed by substantive law –

Judiciary Law, BP 129; whereas
VENUE is governed by procedural law – Rule 4 of
the Rules of Court;
4) JURISDICTION establishes a relation between the

court and the subject matter; whereas
VENUE creates a relation between the plaintiff
and defendant, or petitioner and respondent; and
5) JURISDICTION or lack of it over the subject

matter is a ground for a motu proprio dismissal;
whereas
VENUE is not except in cases subject to summary
procedure.
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Amilhamja, Adj.
Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure – The procedure in Municipal

Trial Courts shall be the same as in the Regional Trial Courts,
except (a) where a particular provision expressly or impliedly
applies only to either of said courts, or (b) in civil cases governed
by the Rule on Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the

subject matter is procedure in Regional Trial Courts. However, by
express provisions in Section 1, the procedure in the Regional Trial
Court and the procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also

applicable to the MTC except when a particular provision
expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to

apply to RTC or MTC. A good example of this is paragraph (a) is
Rule 40 which governs appeals from MTC to RTC. It is only
applicable to MTC. It does not apply to appeals from RTC to Court
of Appeals.
The second example would be in civil cases governed by Rules on

Summary Procedure. That would be the last law that we will take
up. Rules on Summary Procedure applied only to MTC. They do
not apply to RTC.
Sec. 2 Meaning of Terms. – The term “Municipal Trial Courts” as

used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Court, and
Municipal Circuit Trial Courts. (1a)
In our structure, we already illustrated the hierarchy of courts.

Metropolitan Trial Courts are only in Manila. Municipal Trial
Courts are in cities and municipalities. When the Rule says
‘Municipal Trial Court’, it already includes Metropolitan Trial
Courts, MTCC, MCTC. So that we will not be repetitious.
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Amilhamja, Adj.
PROCEDURE IN THE REGIONAL TRIAL COURTS ambiguities must be at the pleader’s peril. (61 Am Jur, Pleading)
Rule 6
KINDS OF PLEADINGS Sec. 2 – Pleadings allowed – The claims of a

party are asserted in a complaint,
SECTION 1. Pleadings Defined. Pleadings are
counterclaim, cross-claim, third (fourth, etc.)
the written statements of the respective
claims and defenses of the parties submitted – party complaint, or complaint-in-
intervention.
to the court for appropriate judgment. (1a)
The defenses of a party are alleged in the
answer to the pleading asserting a claim
Q: Define pleadings
against him.
A: PLEADINGS are the written statements of the respective claims
An answer may be responded to by a reply
and defenses of the parties submitted to the court for appropriate
only if the defending party attaches an
judgment. (Section 1) Under the Rules, “pleadings” cannot be oral
actionable document to an answer.(n)
because they are clearly described as “written” statements.
Section 2 tells us what pleadings are allowed by the Rules of Court.
This is the document where a party will state his claim against the
In a civil case, there are actually two (2) contending parties:
defendant; or where the defendant will state also his defense.
1) the person suing or filing a claim; and
Pleadings merely tell a story. You tell your story there; the other
2) the person being sued or defending.
party will tell his story.
Q: If you are the claimant or the plaintiff, in what pleading do you
Necessity and purpose of pleadings
assert your claim?
1) Pleadings are necessary to invoke the jurisdiction of the
A: Complaint, counterclaim, cross-claim, third-party complaint or
court (71 C.J.S. Pleadings). It is necessary, in order to
fourth-party complaint, etc.
confer jurisdiction on a court, that the subject matter be
presented for its consideration in a mode sanctioned by
On the other hand, if you are the party sued, you also have to file
law and this is done by the filing of the complaint or other
your pleading or your defense. It is known as the ANSWER. The
pleading. Unless a complaint or other pleading is filed, the
defenses of a party are alleged in the answer to the pleading
judgment of a court of record is void and subject to
asserting a claim against him. If I file a complaint against you, in
collateral attack even though it may be a court which has
response, you will file an answer.
jurisdiction over the subject matter referred to in the
In the last paragraph, an answer may be responded by a REPLY. I
judgment.
file a complaint. You file an answer invoking your defenses. If I want
2) Pleadings are intended to secure a method by which the
to respond to your defenses, I will file a REPLY.
issues may be properly laid before the court. (Santiago v.
de los Santos 61 SCRA 146).
COMPLAINT ANSWER REPLY
3) Pleadings are designed to present, define and narrowthe
issues, to limit the proof to be submitted in the trial, to
That is the pattern. -note: otherwise, admission was made
advise the court and the adverse party of the issues and
what are relied upon as the causes of action or defense.
Note the changes here:
(71 CJS)
An answer may be responded to by a reply only if the defending
The counterpart of pleadings in criminal procedure is information, or
party attaches an actionable document to the answer.
the criminal complaint where a prosecutor will tell what crime you
are being accused – what you did, time, the victim, etc. Q: Summarizing all of them, what are the known pleadings
recognized by the law on Civil Procedure?
Construction of pleadings A: There are seven (7) types of pleadings:
In this jurisdiction, all pleadings shall be liberally construed so as to 1) Complaint;
do substantial justice (Concrete Aggregate Corp. v. CA 266 SCRA 88). 2) Answer;
Pleadings should receive a fair and reasonable construction in 3) Counterclaim;
accordance with the natural intendment of the words and language 4) Cross-claim;
used and the subject matter involved. The intendment of the 5) Reply
pleader is the controlling factor in construing a pleading and should 6) Third (Fourth, Fifth, etc.) – Party Complaint;
be read in accordance with its substance, not its form. 7) Complaint-in-Intervention.
While it is the rule that pleadings should be liberally construed, it has Pleadings allowed under the Rules on Summary Procedure
also been ruled that a party is strictly bound by the allegations, Note however, that when a case falls under the Rules on Summary
Procedure, the only pleadings allowed to be filed are:
statements or admissions made in his pleading and cannot be
1) Complaint;
permitted to take a contradictory position. (Santiago v. de los
2) Compulsory Counterclaim;
Santos 61 SCRA 146)
3) Cross-claim pleaded in the Answer; and
4) Answers thereto (Sec. 3 [A]II, Rules on SummaryProcedure)
Construction of ambiguous allegations in pleadings
Permissive Counterclaims, third-party complaints, reply and
In case there are ambiguities in the pleadings, the same must be
pleadings-in-intervention are prohibited. (Sec. 9, IV)
construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in. This rule proceeds
Pleading and motion
from the theory that it is the pleader who selects the language
1.) the purpose of a pleading is to submit a claim or defense for
used and if his pleading is open to different constructions, such
appropriate judgment while the purpose of a motion is to
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Amilhamja, Adj.
apply for an order not included in the judgment; Your allegations must contain the four (4) elements of a Cause of Action
2.) a pleading may be initiatory like a complaint while a motion – the Right, the Obligation, the Delict or Wrong or Violation of Your
can never be such as it is filed in a case that is already Right, and the Damage.
pending in court;
3.) A pleading is always filed before judgment while a motion
may be filed after judgment; *Significance of the filing of complaint
4.) There are only 9 kinds of pleadings while any application for -The filing of the complaint in court signifies the commencement of the
a relief other a judgment can be made in a motion' civil action (Sec. 5, Rule 1).
however, there are only three motions which actually
seek judgment namely: -By the filing of the complaint, the court acquires jurisdiction over the
a) a motion for judgment on the pleadings (R 34); person of the plaintiff.
b) a motion for summary judgment (R 35); -It also has the effect of interrupting the prescription of actions
c) Demurrer to Evidence pursuant to Article 1155 of the Civil Code.
5.) a pleading must be written while a motion may be oral when
-It is not simply the filing of the complaint or appropriate initiatory
made in open court or in the course of a hearing or trial.
pleading, but the payment of the prescribed docket fee, that vests a
A.) COMPLAINT trial court with the jurisdiction over the subject matter or nature of the
action (Proton Pilipinas Corporation vs. Banque National de Paris (460
SCRA 260, 276).
Sec. 3. Complaint – The complaint is the
pleading alleging the plaintiff’s or claiming
party’s cause or causes of action. The names
What is the rule on payment of docket fee?
and residences of the plaintiff and defendant
must be stated in the complaint. -The rule on the payment of docket is liberal. If the initiatory pleading
is not accompanied by a correct docket fee, the court may allow
Q: Define complaint payment of the fee within reasonable time, but in no case beyond the
A: COMPLAINT is the pleading where the plaintiff will allege his applicable prescriptive period. (The Heirs of Reynoso, Sr., vs. CA, 654
cause or causes of action. A complaint is also called the SCRA 1, 9-10).
INITIATORY PLEADING because it is actually the first pleading filed -It will not lead to automatic dismissal of the complaint (Sy-Vargas vs.
in court. It is the pleading that initiates the civil action. The Estate of Ogsos GR 221062, October 5, 2016).
Rule 8 requires that it should contain a concise statement of the
ultimate facts constituting the plaintiff's cause of action not B.) ANSWER
evidentiary facts or legal conclusions. Sec. 4 – Answer – An answer is a pleading in
which a defending party sets forth his or her
Ultimate facts refer to the essential facts constituting the defenses. (4a)
plaintiff's cause of action.
The fact is essential if it cannot be stricken out without leaving the Q: What is the pleading where you respond?
statement of the cause of action insufficient. A: It is called the ANSWER. That is where you will state your defenses.
That is why an ANSWER is called a Responsive Pleading.
Test of sufficiency of the facts alleged in the complaint:
Determine whether upon the averment of facts, a valid judgment Q: Why is it called “Responsive Pleading”?
may be properly rendered. A: Because it is the pleading which is filed in response to thecomplaint
or a pleading containing a claim. It is where you respond to the cause
What are not ultimate facts: of action. That is where you state your defenses.
1) evidentiary or immaterial facts; So you can file an answer to the complaint; answer to the
2) legal conclusions, conclusions or inferences of facts counterclaim, answer to the cross-claim, etc.
from facts not stated, or incorrect inferences or
conclusions from facts stated; It is something which is not found in Criminal Procedure.
3) the details of probative matter or particulars of
evidence, statements of law, inferences and Q: If you are charged with a crime, how do you answer?
arguments; A: By pleading guilty or not guilty. That is the answer. When you plead
4) an allegation that a contract is valid or void is a mere guilty, and the offense is not punishable by reclusion perpetua to death
conclusion of law. it is the end.
1) On Nov. 7, 2008, defendant secured a loan from There is no writing of defenses, no written answer in criminal cases. It
plaintiff in the sum of P30,000.00 payable within (pleadings) only applies to civil cases where you allege your defenses.
one (1) year form said date with legal interest;
2) The account is already due and despite repeated
demands, defendant failed and refused to pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be
rendered against the defendant ordering him to pay the
loan of P30,000.00 and interest in favor of the plaintiff.
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.
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Sec. 5 – Defenses – Defenses may either be controverted. It is form of denial which really admits the important
negative or affirmative. facts contained in the allegations to which it relates.
(a) A NEGATIVE DEFENSE – is the specific While it is a denial in form, its substance actually has the
denial of the material fact or facts alleged effect of an admission because of a too literal denial of the
in thepleading of the claimant essential allegations sought to be denied. This arises when the pleader merely
to his or her cause or causes of action. repeats the allegations in a negative form.
(b) An AFFIRMATIVE DEFENSE – is an
allegation of a new matter which, while b.) Answer; AFFIRMATIVE DEFENSES
hypothetically admitting the material Q: Define an AFFIRMATIVE defense.
allegations in the pleading of the A: In paragraph (b), it is briefly called a defense of confession and
claimant, would nevertheless prevent or avoidance because, while the defendant may admit the material
bar recovery by him or her. The allegation in the complaint, however, he will plead a new matter
affirmative defenses include fraud, which will prevent a recovery by the plaintiff. I admit what you are
statute of limitations, release, payment, saying in the complaint but still you are not entitled to recover from
illegality, statute of frauds, estoppel, me.
former recovery, discharge in
bankruptcy, and any other matter by way EXAMPLE: Defendant may say: Defendant admits the allegation in
of confession and avoidance. par. 2 of the Complaint, but alleges that the action has prescribed.He
confesses to having borrowed money but avoids liability byasserting
Affirmative defense may also include prescription.
grounds for dismissal of a complaint,
specifically, that the court has no Examples of affirmative defenses are: (Traditional affirmative
jurisdiction over the subject matter, that defense)
there is another action pending between (1) Fraud
the same parties for the same cause, or (2) statute of limitations- prescription
that the action is barred by a prior (3) release
judgment. (4) payment
(5) illegality
(6) statute of frauds
Defenses may either be negative or affirmative. (7) estoppel
a.) Answer; NEGATIVE DEFENSES; (8) former recovery
Q: Define a NEGATIVE defense. (9) discharge in bankruptcy
A: Paragraph [a]: Briefly, it is a defense of specific denial where (10) and any other matter by way of confession and
avoidance.
you deny the statement in the complaint and you state the facts
and the reason/s on which your denial is based. In a negative
*-Aside from the affirmative defenses in Section 5(b), the affirmative
defense, the defendant specifically denies a material fact or facts
alleged in the pleading of the claimant essential to his cause of defenses should be read in conjunction with Section 12, Rule 8.
Rule 8 Section 12 – Affirmative defenses
action.
(a) A defendant shall raise his or her affirmative defenses in his or her
answer, which shall be limited to the reasons set forth under
EXAMPLE: The complaint says in paragraph 2, “On November 6,
Section 5(b), Rule 6 and the ff: grounds:
2008, defendant secured a loan from plaintiff in the amount of
(1) That the court has no jurisdiction over the person of the
P30,000.00 payable one (1) year from November 6,2008.
party
(2) That the venue is improperly laid
The defendant will say in his answer:
(3) That the plaintiff has no legal capacity to sue
“Defendant specifically denies the allegation in
(4) That the pleading ascerting the claim states no cause of
Paragraph 2 of the complaint. The truth of the
action
matter being that he never secured any loan from
(5) That the condition precedent for filing the claim has not been
plaintiff because he does not even know the
complied with
plaintiff and he did not see his face before.”
(b) Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof
That is a negative defense. You said I borrowed money from you.
(c) The court shall moto proprio resolve the above affirmative
“No, I don’t even know you. I have not seen you before.” He
defenses within thirty (30) calendar days from filing of the answer
denies the existence of the loan. That is known as the negative
(d) As to the other affirmative defenses under the first paragraph of
defense. It is a denial of a material fact which constitutes the
Section 5(b), Tule 6, the court may conduct a summary hearing
plaintiff’s cause of action. That’s why it is briefly called a “Defense
within fifteen (15) calendar days from the filing of the answer.
of Specific Denial”.
Such affirmative defenses shall be resolved by the court within
thirty (30) calendar days from the termination of the summary
Kinds of negative defense
hearing.
1. General/specific denial; and
(e) Affirmative defenses, if denied, shall not be the subject of a
2. denial in the form of negative pregnant- denial amounting
motion for reconsideration or petition for certiotari, prohibition
to some form of admission
or mandamus, but may be among the matters to be raised on
3. Denial through lack of knowledge
appeal after a judgment on the merits.
Negative pregnant is a denial in such form as to imply or express
an admission of the substantial fact which apparently is
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Amilhamja, Adj.
Kinds of Counterclaim- note that there are many Q’s in bar re: this
c.) COUNTERCLAIMS 1. Compulsory
2. Permissive
Sec. 6. Counterclaim. - A counterclaim is any
claim which a defending party may have *Sec. 7 is a must memorize provision
against an opposing party. (6a)
PERMISSIVE & COMPULSORY COUNTERCLAIMS
Sec. 7 – Compulsory counterclaim – A compulsory
Nature of a counterclaim counterclaim is one which, being cognizable by
A counterclaim is in the nature of a cross-complaint. Although it may the regular courts of justice, arises out of or is
be alleged in the answer, it is not part of the answer. Upon its filing, connected with the transaction or occurrence
the same proceedings are had as in the original complaint.For this constituting the subject matter of the opposing
this reason it is to be answered within ten (10) days from service. party's claim and does not require for its
adjudication the presence of third parties of
Therefore, there is one civil case but there are two (2) causes
whom the court cannot acquire jurisdiction. Such
involved – the main cause of action in the complaint and that in
a counterclaim must be within the jurisdiction of
the counterclaim. There are two (2) issues to be resolved by the
the court both as to the amount and the nature
court.
thereof, except that in an original action before
the Regional Trial Court, the counterclaim may
Q: If your complaint against me is to recover a sum of money,
be considered compulsory regardless of the
should my counterclaim also involve recovery of sum of money?
amount. A compulsory counterclaim not raised in
A: NO. There is no such rule that these two (2) cases should be
the same action is barred, unless otherwise
similar in nature. (De Borja vs. De Borja, 101 Phil. 911) It is possible
allowed by these Rules.
for you to file case for recovery of a piece of land and my
counterclaim is recovery of damages arising from a vehicular
accident. Under the Rules, there are two types of counterclaim:
1) COMPULSORY COUNTERCLAIM and,
Q: Suppose your claim against me is One (1) Million, is it possible 2) PERMISSIVE COUNTERCLAIM.
that my counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same Section 7; Compulsory counterclaim
amount you are claiming. A counterclaim need not diminish or —The 2019 Amendments included in the definition of compulsory
defeat the recovery sought by the opposing party, but may claim counterclaim the admonition that failure to raise the compulsory
relief exceeding in amount or different in kind from that sought counterclaim in the same action shall be considered barred unless
by the opposing party. (De Borja vs. De Borja, 101 Phil. 911) otherwise allowed by the rules.
—Is there an instance where the Rules allow the prosecution of a
Q: You file a case against me for recovery of unpaid loan. My counterclaim even it was not raised in the same action?
counterclaim is, rescission of partnership contract. Is the — Yes, under Section 5, Rule 86.
counterclaim proper? — Please take note: there is also the same admonition under Section 2,
A: Yes although there is no connection between what you are Rule 9.
asking and what my answer is. But what is important is that we
are the same parties. If you will not allow me to file my Q: How do you distinguish one from the other? When is a
counterclaim against you, that will be another case in the future. counterclaim compulsory and when is it permissive?
So to avoid multiplying suits, clogging the dockets of the court and A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in
making the proceedings more expensive, violating the purpose of Section 7. If we will outline Section 7, we will see that a counterclaim is
the rules, the parties are allowed to include all their claims against compulsory if the following requisites are present:
each other in one case. 1) It is cognizable by the regular courts of justice;
2) It arises out of or it is connected with a transaction or
Same capacity rule occurrence constituting a subject matter of the opposing
DE BORJA vs. DE BORJA - 101 Phil 911 party’s claim;
FACTS: A died, of course, what survives after that is the estate. X 3) It does not require for its adjudication the presence of third
was appointed as administrator or legal representative. W owes a parties of whom the court cannot acquire jurisdiction;
sum of money to the estate of A and X filed a case against W to 4) It must be within the jurisdiction of the court, both as to the
collect the unpaid loan. X is called the REPRESENTATIVE PARTY amount and the nature thereof, except that in an original
under Rule 3, Section 3. W filed an answer and stated that W has a action before the RTC, the counterclaim may be considered
claim against X. W filed a counterclaim against X in the case. compulsory regardless of the amount; and
HELD: The counterclaim is improper. When X sued W, X is not suing 5) The defending party has a counterclaim at the time he files
in his own personal capacity. He is acting as administrator of the his answer.
estate of A. The real plaintiff is the estate of A. X is just the legal
representative. Therefore, you cannot file a counterclaim against X The fifth requisite is not found in Section 7 but in Rule 11, Section 8:
in the latter’s personal capacity when X is suing W in a Rule 11, Sec. 8. Existing counterclaim or cross-
representative capacity. claim. - A compulsory counterclaim or a cross-
claim that a defending party has at the time he or
The SC said that the plaintiff should be sued in a counterclaim in she files his answer shall be contained therein.
the SAME CAPACITY that he is suing the defendant. That’s a (8a, R6)
principle to remember.
Another way of saying it is, the counterclaim has already matured at
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Amilhamja, Adj.
the time he files his answer. That is the fifth requisite. MELITON vs. CA – 216 SCRA 485
HELD: “It has been postulated that while a number of criteria have
Q: What happens if one of these requisites is missing?
been advanced for the determination of whether the counterclaim is
A: If one of the five requisites is missing, the counterclaim is
compulsory or permissive, the one compelling test of compulsoriness
permissive in nature.
is the logical relationship between the claim alleged in the complaint
and that in the counterclaim, that is, where conducting separate
Discussion of the elements
trials of the respective claims of the parties would entail a substantial
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST
duplication of effort and time, as where they involve many of the
BE COGNIZABLE BY THE REGULAR COURTS.
same factual and/or legal issues.”
In other words, if you file a complaint against me and I have a
counterclaim against you in the Labor Code, then it cannot be
Logical Relationship Test
classified as a compulsory claim because how can I invoke against you
The logical relationship test between the claim and the counterclaim
a claim which is cognizable by the NLRC before the RTC?
has been called: The one compelling test of “compulsoriness.” Under
this test, any claim a party has against an opposing party that is
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A
logically related to the claim being asserted by the opposing party,
TRANSACTION OR OCCURRENCE CONSTITUTING A SUBJECT
and that it is not within the exception to the rule is a compulsory
MATTER OF THE OPPOSING PARTY’S CLAIM
counterclaim. Its outstanding quality is flexibility. (Tan v. Kaakbay
-The second requisite is the most important.
Finance Corporation 404 SCRA 518)
-A counterclaim, to be compulsory, must arise out of or connected
with the transaction or occurrence constituting a subject matter of
Q: What is the importance of determining whether the claim is
the opposing party concerned. It must arise out of or is connected
compulsory or permissive?
with a transaction or occurrence constituting a subject matter of the
A: A compulsory counterclaim must be invoked in the same action.It
opposing party’s claim. It must be logically related to the subject
cannot be the subject matter of a separate action. Unlike in
matter of the main action.
permissive counterclaim where you have the choice of invoking it in
-So the rule is, if the counterclaim did not arise out of or is not
the same case, or in a separate action, compulsory counterclaim
connected with the transaction or occurrence constituting the
must be invoked in the same action otherwise it will be barred. That
subject matter of the opposing party’s concern, the counterclaim
is found in Rule 9, Section 2:
must be permissive in nature.
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim,
PROBLEM: Emily filed a case against Regina for damages arising from
not set up barred. - A compulsory counter-claim or a
a vehicle collision. According to Emily, the case of the accident is the
cross-claim, not set up shall be barred. (4a)
negligence of the defendant in driving her car. Her car bumped the
car of Emily and was damaged. So, Emily is holding Regina liable for PROBLEM: V files a case against me for damages arising from
the damage on her car. Regina denied that she was negligent. vehicular collision. Her car is damaged, my car is damaged. In my
According to Regina, “No, I am not negligent. As a matter of fact, you answer, I denied negligence but I did not claim from her the damage
(Emily) were the one negligent, and because of that negligence, my to my vehicle. After the trial, court found the plaintiff at fault. So, the
car was also damaged. So you should be the one to pay damages.” complaint of V. This time I will file a case against her to recover
Q: Is the counterclaim of Regina arising out of or is connected with damages for the damage to my car since I was able to prove that she
the transaction or occurrence constituting the subject matter of was negligent and not me.
the opposing party? Q: What will happen to my case now?
A: YES because we are talking of the same bumping. You bumped my A: My case will be dismissed because I did not raise that cause of
car, you say I bumped your car. So we are talking of the same event action as a counterclaim as it is compulsory.
or transaction.
PROBLEM: A files a case against me for recovery of a piece of land.
PROBLEM: T files a case against me for recovery of a piece of land. After trial, the decision is against me. The court said that I should
According to her, she is the owner of the land which I’m occupying. return the land to her. I will file a case against her. She moved to
Now, I file my answer, and then I said, “T, I spent a lot of money for dismiss – barred, because I should have raised that as a counterclaim.
necessary expenses to preserve the land. You are also liable to I cannot file another case involving that cause ofaction. That is the
reimburse me for the expenses for the necessary improvements I effect of failure to raise the compulsory counterclaim in the case filed
introduced on the land.” Under the law on Property, a defendant or against you.
possessor is entitled to reimbursement for necessaryimprovements
and expenses. So she is trying to recover the piece of land, I am now PROBLEM: Now, suppose the counterclaim is PERMISSIVE. My cause
asking her to reimburse me for all necessary expenses that I spent on of action against her is damages arising against a vehicular collision.
the land. Q: Is the counterclaim allowed?
Q: Is my counterclaim arising out of or connected with the subject A: Yes, allowed.
matter of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the Q: My decision is not to file a counterclaim but to file another case
counterclaim is compulsory. against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a
PROBLEM: T files a case against me for recovery of a piece of land. counterclaim because it is permissive. I am permitted to raise it asa
My counterclaim against her is damages arising from a vehicular counterclaim but I am not obliged. I may decide to file another action
collision. against you. That is the importance between a compulsory
Q: Is my counterclaim arising out of a subject matter of your action? counterclaim and a permissive counterclaim.
A: NO. It is completely different. Thus, that is a permissive
counterclaim. Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION
PRESENCE OF THIRD PARTIES OF WHOM THECOURT CANNOT
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Amilhamja, Adj.
ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence Q: How can the RTC try a counterclaim when the claim is only
of an indispensable party who is, let’s say, abroad, and therefore, P50,000?
the court cannot acquire jurisdiction over him, if I don’t allege it as A: It is in accordance with the exception under Section 7: “except
counterclaim in my answer, I will not be barred from filing a that in an original action before the RTC, the counterclaim may be
separate action. considered compulsory regardless of the amount.” This means that
the main action is accion publiciana—RTC. The counterclaim is
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN reimbursement for necessary expenses with arose out of the same
THE JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT land. Normally, the RTC cannot try that but the answer to this
AND NATURE THEREOF question is YES.
Rules: The RTC can award a claim for damages even though the claim is
1) A counterclaim before the MTC must be within the below its jurisdiction. The principle is: Since the counterclaim is
jurisdiction of the said court, both as to the amount and compulsory, jurisdiction over the main action automatically carries
nature thereof. with it jurisdiction over the compulsory counterclaim. The
compulsory counterclaim is merely incidental to the main action.
2) In an original action before the RTC, the counterclaim may
Jurisdiction of the RTC over the main action necessarily carries with
be considered compulsory regardless of the amount.
it jurisdiction over the compulsory counterclaim which is merely
3) However, the nature of the action is always material such
ancillary.
that unlawful detainer cannot be set up in the RTC.
If the main action is with the MTC, it cannot try the counterclaim with
4) If a counterclaim is filed in the MTC in excess of its
the RTC. It is beyond its jurisdiction. It is not covered by the
jurisdictional amount, the excess is considered waived
exception. But if it is the main action which is within the jurisdiction
(Agustin v. Bacalan GR No. 46000, March 18, 1985)
of the RTC, it can try a counterclaim which is below its jurisdiction
provided it arose out or is connected with the transaction.
Q: I will file a case against you for forcible entry. I want to recover a
That exception is not written in the prior rules but it is a recognized
piece of land. Where is the jurisdiction of that case?
exception laid down by the SC which is now written down in the law.
A: MTC.
In the case of
Review: In the Law on Property, even if you are a possessor in bad
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT
faith, you are entitled to reimbursement for necessary expenses. The
THE TIME HE FILES HIS ANSWER
theory there is, even if he is a possessor in bad faith, the expenses
How can I make a claim against you which is not yet existing? Even if
redounded to the benefit of the land owner. Anyway, you will spend
all the other requisites are present, the counterclaim would still not
them just the same as the land owner will have to spend for them.
be compulsory because how can one invoke something now which
So it will not be fair if he is not reimbursed. That’s our premise.
he can acquire in the future?
PROBLEM: Now, the defendant would like to claim for So, those are the five essential elements. You remove one, the
reimbursement for the necessary expenses that he spent in my lot. counterclaim becomes permissive.
The case I filed against you is forcible entry in the MTC. Your
necessary expenses amount to P350,000. Q: Again. What is the importance of distinguishing whether the
Q: Should you raise it as a compulsory counterclaim in the forcible counterclaim is compulsory or permissive?
entry case? A: If the counterclaim is compulsory, the defendant is obliged under
A: NO. the law to raise it as a counterclaim in the action where he is being
sued. If he fails to invoke it, it is barred forever (Rule 9Section 2).
Q: Does it arise out of or connected with the transaction which is the If the counterclaim is permissive, the defendant has a choice of raising
subject matter of the main action? Why not compulsory? it as a counterclaim in the case filed against him or he may decide to
A: Because the MTC has no jurisdiction over the P350,000 amount file another action against the plaintiff, raising it as his cause of action.
for the necessary expenses. This time, that is the missing element. It is permitted but not obliged.
Q: How will the defendant claim reimbursement? Compulsory and Permissive Counterclaim compared:
A: He has to file with the RTC a case for reimbursement. He cannot 1) A compulsory counterclaim arises out of or is necessarily
use that as a counterclaim for the forcible entry case because the connected with the transaction or occurrence that is the
MTC has no jurisdiction on a counterclaim where the amount is over subject matter of the other party's claim, while a permissive
P300,000.00. counterclaim is not;
2) A compulsory counterclaim does not require for its
I will reverse the problem: adjudication the presence of third parties of whom the court
cannot acquire jurisdiction while a permissive counterclaim
PROBLEM: The plaintiff filed against the defendant an action for may require such;
accion publiciana – recovery for a piece of land where the value of 3) A compulsory counterclaim is barred it not set up in the
the property is P1 million. So the case should be filed in the RTC. action, while a permissive counterclaim is not;
Now, the defendant is claiming for the reimbursement of the 4) A compulsory counterclaim need not be answered, no
improvements thereon (necessary expenses) amounting to P50,000. default, while a permissive counterclaim must be answered
Q: Should the defendant raise that as a counterclaim in the accion otherwise the defendant can be declared in default.
publiciana case? A plaintiff who fails or chooses not to answer a compulsory
A: YES. counterclaim may not be declared in default, principally because the
In the first example, the counterclaim is above the jurisdiction of issues raised in the counterclaim are deemed automaticallyjoined by
the MTC. This time, the amount for the counterclaim is below the the allegations of the complaint (Gojo v. Goyala, GR No. 26768, Oct. 30,
jurisdiction of the RTC. So the RTC can claim jurisdiction. 1970)
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Amilhamja, Adj.
judgment (Sec. 9, Rule 11).

General Rule: A compulsory counterclaim not set up in the answer
is deemed barred. Possible Bar Problems
Exceptions: 1. A files an ejectment suit against B before the MTC. B filed an answer with
1. if it is a counterclaim which either matured or was counterclaim. B claims that he should be reimbursed for the
acquired by a party after serving his answer. In this case improvement he introduced to the real property of A. The amount of
it may be pleaded by filing a supplemental answer or counterclaim that B demands is 1M.
pleading before judgment (Sec. 9 R 11); Can the MTC entertain the counterclaim of B?
2. When a pleader fails to set-up a counterclaim through -The MTC cannot entertain the entire counterclaim of B. The entire
oversight, inadvertence, excusable negligence, or when counterclaim of B is beyond the jurisdiction of the MTC. It is provided in
justice requires, he may, by leave of court, set up the Section 7, Rule 6 that the counterclaim must be within the jurisdiction
counterclaim by amendment of the pleading before of the court both as to the amount and nature thereof. The counterclaim
judgment (Sec. 10, R 11). that can be set up will only be limited to the jurisdictional amount of the
MTC.
The filing of a motion to dismiss and the setting up of a compulsory 2. A files a recovery of possession case against B before the RTC. B filed
counterclaim are incompatible remedies. In the event that a an answer with counterclaim. B claims that he should be reimbursed for
defending party has a ground for dismissal and a compulsory the improvement he introduced to the real property of A. The amount
counterclaim, he must choose only one remedy. If he decides to of counterclaim that B demands is 200K.
file a motion to dismiss, he cannot set up his counterclaim. But if —Can the RTC entertain the counterclaim of B?
he opts to set up his counterclaim, he may still plead his ground Yes, the RTC can entertain the counterclaim of B.
for dismissal as an affirmative defense in his answer. —While the counterclaim of B is not within the jurisdictional amount of
RTC, it can still entertain the counterclaim of B. It is provided in Section
Let us recapitulate, 7, Rule 6 that if the original action is before the RTC, the counterclaim
Elements of compulsory counterclaim may be considered compulsory regardless of the amount.
1. It arises out of or is necessarily connected with the
transaction or occurrence which is the subject matter of the If the amount of the counterclaim exceeds the jurisdiction of the court,
opposing’s party’s claim. what is the effect?
2. It does not require for its adjudication the presence of third -The counter cannot be treated as compulsory, but permissive since the
parties over whom the court cannot acquire jurisdiction. amount exceeds the jurisdiction of the Court.
3. Such counterclaim must be within the jurisdiction of the court
both as to amount and nature thereof (Alba vs. Malapajo, GR No. What if the amount claimed as counterclaim is not within the jurisdiction
198752, January 13, 2016). of the RTC, can the latter court dismiss said counterclaim?
—No. When the original action is filed with the RTC, the counterclaim
Test to determine compulsory counterclaim may be deemed compulsory regardless of the amount (Sec. 7, Rule 6).
-Are the issues of fact and law raised by the claim and counterclaim
largely the same? Can a party file a Motion to Dismiss with counterclaim?
-Would res judicata bar a subsequent suit on defendant’s claim about —No. IT would be inconsistent. If the dismissal of the main action results
the compulsory counterclaim? in the dismissal of the counterclaim already filed, it stands to reason that
-Will substantially the same evidence support or refute plaintiff’s the filing of a motion to dismiss the complaint is an implied waiver of the
claim as well as defendant’s counterclaim? compulsory counterclaim because the grant of the motion ultimately
-Is there any logical relation between the claim or counter claim? results in the dismissal of the counterclaim (Financial Building Corp. vs.
- If all YES, the counterclaim is compulsory Forbes Park Association, 338 SCRA 346, 354).
- NAMARCO doctrine
NAMARCO vs. CA is an important case* Permissive Counterclaim

-has docket fee; vs. Compulsory, no docket fee
Example of compulsory counterclaim — A counterclaim is permissive if it does not arise out or is not
— A counterclaim for damages and attorney’s fees as a result of an necessarily connected with the subject matter of the opposing party’s
action filed against petitioner is compulsory (Tiu po vs. Bautista, 103 claim. It is essentially an independent claim that may be filed separately
SCRA 388) in another case (Alba vs. Malapajo, GR No. 198752, January 16, 2016).
— In an action for recovery of possession of real estate - the expense -an independent counterclaim must have characteristics of
for clearing and cultivation is a compulsory counterclaim even if it initiatory pleading
is inconsistent with defense of ownership (Camara vs. Aguilar, 94 Phil. —A counterclaim for damages based on a quasi-delict cannot be pleaded
527) as compulsory counterclaim in an action for unlawful detainer (Arenas
— In an action by the debtor against the creditor to prevent extra- vs. CA, 345 SCRA 617, 625-626).
judicial foreclosure of chatter mortgage, creditor should file a -because it is TOTALLY alien and unrelated to each other
counterclaim for mortgage debt and damages, provided the debt is
already due (Papa vs. Banaag, 17 SCRA 1093)
Alba Vs. Malpajo ,
What is the effect of failure to plead counterclaim? -Alba filed a complaint for recovery of ownership and/or declaration of
—A counterclaim not set up shall be barred (Section 7, Rule 6 and Sec. nullity or cancellation of title and damages alleging that the deed of sale
2, Rule 9). which was used to cancel his title was a forged document and respondent
—A counterclaim which either matured or was acquired by a party was the author thereof.
after serving his pleading may, with the permission of the court, be — Malapajo filed an answer with counterclaim alleging that Alba obtained
presented as counterclaim by supplemental pleading before a loan from him secured by REM over the subject property. He claimed for
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Amilhamja, Adj.
damages and for reimbursement of petitioner's loan from them plus the will allege that if J will be held liable to D, P will reimburse
agreed monthly interest in the event that the deed of sale is declared him (J). So, J will also file a claim in the same action against
null and void on the ground of forgery. P.
— What is the nature of counterclaim? Now, the claim filed by J against his co-defendant P is
-Compulsory called a CROSS-CLAIM where J is called defendant in the
-Petitioner seeks to recover the subject property by assailing the validity case filed by D and a cross-claimant against P. P is also the
of the deed of sale on the subject property which he allegedly executed defendant in the case filed by D and a cross- defendant
in favor of respondents Malapajo on the ground of forgery. Respondents with respect to the cross-claim filed by J. So that is another
counterclaimed that, in case the deed of sale is declared null and void, case which a defendant is filing against another
they be paid the loan petitioner obtained from them plus the agreed defendant.
monthly interest which was covered by a real estate mortgage on the • —Plaintiff sues Defendant 1 and Defendant 2 for
subject property executed by petitioner in favor of respondents. collection of loan. Defendant 1 may file a cross-claim
-There is a logical relationship between the claim and the counterclaim, against Defendant 2 if the former acted only as
as the counterclaim is connected with the transaction or occurrence accommodation party and that the actual debtor is
constituting the subject matter of the opposing party's claim. Notably, Defendant 2
the same evidence to sustain respondents' counterclaim would disprove • A cross-claim must be related to the original action or
petitioner's case. In the event that respondents could convincingly counter-claim therein. The rules says the cross-claim
establish that petitioner actually executed the promissory note and the must arise “out of the transaction or occurrence that is
real estate mortgage over the subject property in their favor then the subject matter either of the original action or of a
petitioner's complaint might fail. Petitioner's claim is so related logically counterclaim therein.” (Sec. 8, Rule 6).
to respondents' counterclaim, such that conducting separate trials for
the claim and the counterclaim would result in the substantial Limitations on Cross-Claim
duplication of the time and effort of the court and the parties. 1. Must arise out of the subject matter of the complaint or
counterclaim;
2. Can be filed only against a co-party; and
“No counterclaim, cross-claim or third-party 3. Is proper only when the cross claimant stands to be
complaint may be filed by the accused in the prejudiced by the filing of the action against him.
criminal case, but any cause of action which 4.
could have been the subject thereof may be Purpose: To settle in a single proceeding all the claims of the
litigated in a separate civil action.” different parties in the case against each other in order to avoid
multiplicity of suits (Republic vs. Paredes, GR No. L-12548, May 20,
D.) CROSS-CLAIMS 1960).
Sec. 8. Cross-claim. A cross- claim is any claim Take note that the cross-claim of J against P is merely an off-shoot of
by one party against a co-party arising out of the case filed by D against J and P. Meaning, it arises out of the same
the transaction or occurrence that is the transaction or occurrence that is the subject matter of the case filed by
subject matter either of the original action or D against them.
of a counterclaim therein. Such cross-claim
may cover all or part of the original claim. PROBLEM: Suppose D files a case against J and P to collect a promissory
note signed by J and P and J alleges in his cross claim, “Well, since we
A cross claim is a claim by one party against a co-party. It may be a are already here, I also have a claim against P for damages arising from
claim by defendant against his co-defendant arising out of the a vehicular collision.”
subject matter of the main action or of a counterclaim therein. Such
cross-claim may cover all or part of the original claim Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the
Examples: complaint of D against J and P. A counter-claim must always arise out
• In an action for damages against the judgment creditor of a transaction or occurrence that is the subject matter of the main
and the Sheriff for having sold real property of the action.
plaintiff, the Sheriff may file a cross-claim against the
judgment creditor for whatever amount he may be What is the effect if a cross-claim is not set-up?
adjudged to pay the plaintiff. -It shall be barred (Sec. 2, Rule 9).
• In an action against a co-signer of a promissory note -NOTE: the cross-claim that is considered barred is the cross-claim
one of whom is merely an accommodation party, the already existing at the time the answer is filed, not the cross-claim that
latter may file a cross-claim against the party may mature or may be acquired after service of the answer. As to the
accommodated for whatever amount he may be latter Section 9, Rule 11 declares that it may, by leave of court, be
adjudged to pay the plaintiff. presented by supplemental pleading before judgment.
• J and P are solidary debtors for the sum of P100,000.00
because they signed a promissory note in favor of D to *If a cross-claim is not set up, it is barred: except
collect the sum of P100,000.00. However, although J 1) when it is outside the jurisdiction of the court;
signed the promissory note, he did not get a single 2) if the court cannot acquire jurisdiction over third parties
centavo. Everything went to P. Both of them are now whose presence is necessary for the adjudication of said
sued. According to J, “Actually there is a possibility that cross-claim. In which case, the cross-claim is considered
I will pay the P100,000 to Dean when actually I did not permissive;
even get a single centavo out of it. Everything went to 3) cross-claim that may mature or may be acquired after
P!” Therefore, J will now file a case against P where he service of the answer (Riano 2007, p. 285)
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Amilhamja, Adj.
Can cross-claim be set-up for the first time on appeal?

-NO. While defendant may have a definite cause of action against COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
the co-defendant, it cannot succeed in seeking judicial sanction Sec. 9. Counter-counterclaims and counter-
against the latter if the records disclose that no cross-claim was cross-claims. A counterclaim may be asserted
interposed, nor was there a prayer that the co-defendant should be against an original counter-claimant.
liable for all the claims that may be adjudged in favour of the A cross-claim may also be filed against an
plaintiff. (Loadmaster Customs Services, Inc., vs. Glodel Brokerage original cross-claimant.(n)
Corp., 639 SCRA 69, 86). -Justice Mendoza
Section 9 is a new provision. There is such a thing as counter-
*May cross-claim which matured after filling the answer be still counterclaim and counter-cross-claim. The concept of counter-
set-up? counter-claim is not new. As a matter of fact, that was asked in the
-Yes. Under Section 9, Rule 11, a cross-claim which matured or was bar years ago.
acquired by a party after serving his pleading may, with permission
from the court, be presented as a cross-claim by supplemental EXAMPLE: C filed against you an action to collect a loan. You filed a
pleading before judgment counterclaim against her to recover a piece of land. Of course, she
has to answer your counterclaim. But she will say, “Actually you have
*May cross-claim which was not set-up because of oversight be still been molesting me with your claim when actually you have no right
set up? over my land.” So, she files an injunction to stop you from molesting
-YES. Under Section 10, Rule 11, when pleader fails to set up a cross- her. In other words, based on your counter-claim against her to
claim through oversight, inadvertence or execusable neglect, or recover my land, she will file a counterclaim to stop you from
when justice requires, he may, by leave of court, set up the cross- molesting her. In effect, there is counterclaim to a counterclaim.
claim by amendment before judgment.
E.) REPLY
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-
CLAIM. Sec. 10. Reply-. All new matters alleged in the
A: The following are the distinctions: answer are deemed controverted. If the
1) A COUNTERCLAIM is a complaint by the defendant plaintiff wishes to interpose any claims arising
against the plaintiff, whereas, out of the new matters so alleged, such claims
A CROSS-CLAIM is a claim by a defendant against a shall be set forth in an amended or
co-defendant; supplemental complaint. However, the
2) The life of the CROSS-CLAIM depends on the life of plaintiff may file a reply only if the defending
the main action. A cross-claim is merely a party attaches an actionable document to his
consequence of the case filed by the plaintiff against or her answer.
the defendants. No main action, no cross- claim
(RUIZ, JR. vs. CA, infra). Whereas, A reply is a pleading, the office or function of
In a COUNTERCLAIM, you can kill the main action, which is to deny, or allege facts in denial or
still the counterclaim survives. avoidance of new matters alleged in, or
3) A COUNTERCLAIM may be asserted whether or not relating to, said actionable document.
it arises out of the same transaction or occurrence
that is the subject matter of the action, whereas, In the event of an actionable document
A CROSS-CLAIM must always arise out of the same attached to the reply, the defendant may file a
transaction or occurrence that is the subject matter rejoinder if the same is based solely on an
of the action. actionable document.
Example: P case filed against J to collect a loan. J files a
COUNTERCLAIM against P to recover a piece of land. That is allowed -A reply is a pleading, the office or function of which is to deny, or allege
and that is a permissive counterclaim. But suppose D files a case to facts in denial or avoidance of new matters alleged in, or relating to,
collect a loan against J and P. J files a CROSS-CLAIM against P to said actionable document. (Section 10, Rule 6).
recover a piece of land.
Q: Will it be allowed? As a general rule, is filing of Reply required?
A: Not allowed! It has no connection with the subject matter of the -No. This is because all new matters alleged in the answer are deemed
main action. controverted (denied). (Section 10, Rule 6).
Take note that a cross-claim is any claim by one party against a co- When is the filing of Reply necessary?
party arising out of the transaction of occurrence that is the subject -The filing of Reply is necessary when the defendant attached an
matter of the original action or of a counterclaim therein. So, a actionable document to his or her answer. The Rules says: “In the event
cross-claim may arise either out of the original action or counter- of an actionable document attached to the reply, the defendant may
claim therein. file a rejoinder if the same is based solely on an actionable document.”
(Section 10, Rule 6).
EXAMPLE: J and P file a case against D. D files his answer with a -otherwise, they are impliedly admitted
counterclaim against the plaintiffs J and P. So J and P will now
become defendants with respect to the counterclaim filed by D. ILLUSTRATION: Plaintiff files a complaint against a defendant to collect
So J now can file a cross-claim against P arising out of the an unpaid loan. D files his answer and raises a new matter, affirmative
counterclaim. defense. According to the defendant, the obligation is already paid.
Plaintiff said that you have paid the other loan. In other words, the
plaintiff would like to deny or dispute the defendant’s affirmative
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defense of payment.
F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT
-Section 10, Rule 6 of the 2019 Amendments retains the idea that all
new matters alleged in the Answer are deemed controverted. In this Sec. 11. Third, (fourth, etc.) - party complaint. A
respect, the filing of Reply may not be necessary. third (fourth, etc.) party complaint is a claim
- However, the filing of Reply may be required if the defending party that a defending party may, with leave of
attaches an actionable document to his or her answer. The plaintiff, court, file against a person not a party to the
therefore, has to file a Reply to deny under oath the due execution action, called the third (fourth, etc.) party
or genuineness of the actionable document attached to the Answer defendant, for contribution, indemnity,
of the defending party. subrogation or any other relief, in respect of
-This idea of filing a Reply cascaded in the definition of Reply. Thus, his or her opponent's claim. (12a)
reply is a pleading, the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged in, or relating to, The third (fourth, etc.)-party complaint shall
said actionable document. be denied admission, and the court shall
require the defendant to institute a separate
What is the effect if the plaintiff failed to file a reply when the action, where: (a) the third (fourth, etc.)- party
defending party attaches actionable documents upon which he or defendant cannot be located within thirty (30)
she bases his or her defense? calendar days from the grant of such leave; (b)
-Section 8, Rule 8 will operate. Failure on the part of the plaintiff to matters extraneous to the issue in the
file a reply when the defending party attaches actionable documents principal case are raised; or (c) the effect
upon which he or she bases his or her defense is an implied would be to introduce a new and separate
admission of the due execution and genuineness of the said controversy into the action.
actionable documents.
-Thus, the plaintiff will not be permitted to present evidence that will THIRD PARTY COMPLAINT is the procedure for bringing into a case
be contrary to his implied admission. a third person who is not a party to the case.
Q: Can I file a pleading to dispute your defense? It is a procedural device whereby a “third party” who is neither a
A: Yes, that pleading is called a REPLY. party nor privy to the act or deed complained of by the plaintiff, may
be brought into the case with leave of court, by the defendant, who
Q: How do you classify a reply? acts as third-party plaintiff to enforce against such third-party
A: It is a responsive pleading because it is the response of the defendant a right for contribution, indemnity, subrogation or any
plaintiff to the affirmative defense raised in the defendant’s answer. other relief, in respect of the plaintiff’s claim. The third-party
complaint is actually independent of and separate and distinct from
An answer is a response to the complaint and the reply is a the plaintiff’s complaint. Were it not for this provision of the Rules,
response to the answer. it would have to be filed independently and separately from the
original complaint by the defendant against the third party.
Q: Assuming that you would like to answer my reply, what The purpose of a third-party complaint is to enable a defending party
pleading would you file? to obtain contribution, indemnity, subrogation or other relief from a
A: None. That is the last pleading. So, reply is considered as the person not a party to the action.
last pleading.
A reply should not be confused with the answer to a counterclaim —A third (fourth, etc.)-party complaint is a claim that a defending party
which is also filed by the plaintiff. may, with leave of court, file against a person not a party to the action,
called the third (fourth, etc.)-party defendant, for contribution,
indemnity, subrogation or any other relief, in respect of his opponent's
OUTLINE OF FLOW OF PLEADINGS claim (Section 11, Rule 6). (CISO in respect of his opponent’s claim)
-The PURPOSE of a third-party complaint is for the third party plaintiff
to ask the third party defendant for:
PLAINTIFF DEFENDANT 1.) Contribution;
2.) Indemnity;
1. Complaint
3.) Subrogation; or
4.) any other relief in respect to the opponent’s claim.
2. a.) Answer
b.) Counterclaim
3. a.) Reply to answer Rule 6 Section 11; 3rd 4th party complaint
b.) Answer to counterclaim —Under the old Rule, there is no requirement that the third party
4. Reply to answer to counterclaim
claim, etc., must be related to the main action. The third party claim
may be entirely separate and distinct from the main action. However,
the admission of the third party complaint is subject to the discretion
by the Court. It has to be filed with prior leave of court.
Q: Is it required that the 3rd party complaint shall be related to main

action in order to admit 3rd/4th claim?
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--YES! the injured party files an action for damages against Andrew only,
Andrew may file a third-party complaint against Carlo for
— Under the 2019 Amendments, the admission of the third party
contribution, their liability being solidary (Article 2194, New Civil
complaint, etc., is subject to well defined parameters.
Code)
— The third party complaint (fourth, etc.,) shall be denied if:
1. the third (fourth, etc.)- party defendant cannot be located within INDEMNIFICATION
thirty (30) calendar days from the grant of such leave; Example #1: Two people signed a promissory note in favor of the
creditor. But actually the entire amount went to you and none for
2. matters extraneous to the issue in the principal case are raised; me. When the note fell due, I was the one sued. So I will file a third-
3. the effect would be to introduce a new and separate controversy party complaint against you for indemnity. You have to return to
into the action. me every centavo that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor may
file a third-party complaint against the principal debtor for
— It can be gleaned from the amendment that somehow, the third indemnity. (Article 2047, New Civil Code)
(fourth, etc.,) party complaint must at least be related to the main
action because the new Section 11 provides that when the matters SUBROGATION
are extraneous to the issued in the principal case or the effect of the Subrogation - You step into the shoes of someone else. Your
third (fourth, etc.,) party complaint would be to introduce a new and obligation is transferred to me.
separate controversy into the action, then the third (fourth, etc.,) EXAMPLE: Where a house is leased by a lessee and he subleased the
party complaint must be denied admission. property to a third person who is now occupying the property. In
effect, the sub-lessee stepped into the shoes of the original lessee. If
the property is damaged and the lessor sues the lessee for damages
Problem to his leased property, the lessee or sub-lessor can file a third-party
B and C borrowed P400,000 from A. B, who received the money from complaint and have the sub-lessee for subrogation because actually,
A, gave C P200,000. C in turn, gave P100,000, by way of loan, to D. you stepped into the shoes when you occupied the leased property.
(Articles 1651 and 1654, New Civil Code)
—If a complaint is filed by A against C, should the third-party
complaint filed by C against D be allowed? For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS
-No. Because the third-party claim of C against D is totally unrelated CLAIM
to the main action. The matters raised in the third-party complaint EXAMPLE: When I buy the property of Mr. Cruz and after a while,
is extraneous to the issue in the principal case. here comes Mr. Dee filing a case against me to claim ownership of
the land. But I bought it from Mr. Cruz who warranted that he is the
real owner. So I will now file third-party complaint against Mr. Cruz
Problem to enforce his warranty – warranty against eviction. (Article 1548,
—A, passenger of a bus owned by B, got in injured because the bus New Civil Code)
he was riding was bumped by a dump truck owned by C. A filed an
action for damages against B and C. Take note that there is always a connection between the main
complaint and the third-party complaint because the condition is
—B, with leave of Court filed a third-party complaint against C. The “contribution, indemnification, subrogation and any other relief in
Court admitted the third-party complaint. Is the Court correct? respect to your opponents claim.” There is always a relation
-No. B cannot anymore file a third-party complaint against C. between the third party-complaint and the main complaint against
you. Here is a bar question...
— Reason:
—C is already a party to the case. What he should have filed is a BAR QUESTION: Janis files a case against Nudj to recover an unpaid
cross-claim. loan. Now the reason is that Carlo also owes Nudj. Nudj says, “I
cannot pay you because there is a person who has also debt to me.
What I will pay you depends on his payment to me.” File agad si Nudj
Please take NOTE: ng third-party complaint against Carlo. Is the third-party complaint
—Trial courts are not especially enjoined by law to admit a third- proper?
party complaint. They are vested with discretion to allow or disallow A: NO. There is no connection between the main action and the 3rd-
a party to an action to implead additional party. Thus, a defendant party complaint – the loan of Nudj to Janis and the loan of
has no vested right to file a third- party complaint (China Banking Andrew to Nudj. No connection..
Corp. vs. Padilla, 514 SCRA 35, 42).
BAR QUESTION: How do you determine whether a 3rd-party complaint
is proper or improper? What are the tests to determine its propriety?
CONTRIBUTION A: Case of
Example #1: Two debtors borrowed P100,000 from Janis (creditor) CAPAYAS vs. CFI – 77 PHIL. 181
and they shared the money 50-50. When the debt fell due, the HELD: There are four (4) possible tests to determine the propriety of
creditor filed a case against one of them. So, one of them is being a third-party complaint. In order for it to be allowed, it must pass one
made to pay the P100,000. Not only his share but also his co- solidary of them. That is the reason when you file it, you need the permission
debtor. So if I am the one liable when actually my real liability is only of the court to determine whether it is proper or not and the original
50,000. What will I do? I will file a third partycomplaint against my plaintiff may object to the propriety of the third-party complaint.
co-debtor for contribution.
There are the FOUR TESTS (any one will do):
Example #2: If Andrew and Carlo are guilty of a quasi-delict and 1. A third-party complaint is proper if it arises out of the
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same transaction on which plaintiff is based, or that si Philip and nakabangga. Tato filed athird-
although arising out of another or different party complaint against Philip because he is the
transaction, is connected with the plaintiff's claim. real owner. When Philip got the third-party
complaint, and because he knows the story, in
EXAMPLE: A creditor sued only one solidary fact he was the one driving, ang ginawa niya,
debtor. So you can file a third-party complaint nilabanan niya ng diretso si Lewee. Meaning,
for contribution. Anyway, there is only one loan instead of Tato fighting Lewee, Philip fought
and our liability arises out of the same Lewee directly. Frontal na ba. Sabi ni Philip, “I
promissory note. was not at fault, you (Lewee) are at fault.” So
here is a situation where Lewee sues Tato, Tato
(A third-party complaint is proper if the third- sues Philip but Philip fights Lewee, as if he is the
party’s complaint, although arising out of real defendant, then the third party complaint
another transaction, is connected with the must be proper. It must be related.
plaintiff’s claim.)
Take note that there is a close similarity between a third-party
EXAMPLE: The car owner is sued for culpa complaint and a cross-claim because as we have learned, a cross-
aquiliana for damages arising from vehicular claim must also be related to the same action.
collision and he files a third-party complaint
against the insurance company for indemnity
based on the contract of insurance. So it is
connected with plaintiff’s claim, and that is Sec. 12. Bringing new parties. - When the
precisely the purpose of my insurance presence of parties other than those to the
coverage. original action is required for the granting of
complete relief in the determination of a
2. Whether the third party defendant would be liable counterclaim or cross-claim, the court shall
to the original plaintiff or to the defendant for all or order them to be brought in as defendants, if
part of the plaintiff's claim against the original jurisdiction over them can be obtained.
defendant. Although the third party defendant's
liability arises out of another transaction. SAPUGAY vs. CA – 183 SCRA 464
A’s car was bumped by B. But B contented that the reason that he
EXAMPLE: Sublease. Roy leased his property to bumped A’s car was because he was bumped by C and the same goes
Eric. Eric subleased it to Rudolph. If Roy’s to C, D, E. B then files a 3rd party complaint against C. C files a 4th party
property is damaged, Roy will sue Eric. But Eric complaint against D. D files a 5th party complaint against
will also sue Rudolph. The sub-lessor has the E. Meaning, pasahan, ba. They will throw the liability to the one who
right to file a third-party complaint against the did it. That is a good hypothetical example of how a fourth, fifth, sixth
sub-lessee for the damaged leased property party complaint can come into play.
which is now occupied by the sub-lessee. The
third-party defendant Rudolph would be liable Rule on Venue and Jurisdiction Inapplicable
Jurisdiction over the third-party complaint is but a continuation of the
to plaintiff’s (Roy’s) claim. Rudolph will be
liable to Roy for Roy’s claim against Eric main action and is a procedural device to avoid multiplicity of suits.
Because of its nature, the proscription on jurisdiction and venue
although the liability of Rudolph arises out of
another transaction (Sub-lease contract) applicable to ordinary suits may not apply. (Eastern Assurance vs. Cui,
105 SCRA 622 [1981])
3. Whether the third party defendant may assert any
Grounds for Denial of Third-Party Complaint
defense which the third party plaintiff has or may
have against plaintiff’s claim. a. When allowance would delay resolution of the original case
or when the third-party defendant could not be located; and
EXAMPLE: Tato is a registered owner of a car b. When extraneous matters to issue of possession would
unnecessarily clutter a case of forcible entry.(del Rosario
and then sold it to Philip. Philip is the actual
owner. However, Philip did not register the v. Jimenez 8 SCRA 549)
sale to the LTO. The registered owner is si
Tato lang gihapon although he is no longer FACTS: Mobil Philippines filed a case against Sapugay, its gasoline
dealer. Sapugay filed an answer and interposed a counterclaim for
the real owner. While Philip was driving that
car it bumped the car of Lewee Tanduay. damages against Mobil and included Cardenas (the manager of Mobil)
who is not a plaintiff.
Lewee researched the owner of the car at
LTO and ang lumabas ay si Tato. So ang ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is
proper where he is not a plaintiff in the Mobil case.
ginawa ni Lewee, ang kinasuhan nya ay si
Tato na walang malay...under the law, the HELD: The inclusion of Cardenas is proper. The general rule that the
defendant cannot by a counterclaim bring into the action any claim
registered owner is liable. Of course, when
Tato got the complaint, “Wala akong alam against persons other than the plaintiff, admits of an exception under
this provision (Section 12) – meaning, if it is necessary to include a 3rd
sa sinasabi nyo, that car is no longer mine. I
sold that two years ago, I have no idea what person in a counterclaim or cross-claim, the court can order him to be
brought in as defendants. In effect, the bringing of Cardenas in the
happened.”
case is sanctioned by the Rules.
So obviously, Tato arrived at the conclusion
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The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN – 198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general)
represented the government for PCGG. The case arose out of PCGG
cases wherein Enrile was sued for accumulation of his lll-gotten
wealth. Enrile filed an answer to the complaint. Enrile contends that
the case is harassment suit whose mastermind was the Solicitor
General himself. Enrile files a counterclaim against Chavez. (Enrile’s
lawyer maybe well aware of the Sapugay case the one sued is the
lawyer.) Chavez questioned such counterclaim contending that he
was not a plaintiff. Sandiganbayan denied such contention.
HELD: The inclusion of plaintiff’s lawyer is improper.
“To allow a counterclaim against a lawyer who files a complaint for
his clients, who is merely their representative in court and not a
plaintiff or complainant in the case would lead to mischievous
consequences. A lawyer owes his client entire devotion to his
genuine interest, warm zeal in the maintenance and defense of his
rights and the exertion of his utmost learning and ability. A lawyer
cannot properly attend to his duties towards his client if, in the same
case, he is kept busy defending himself.”
Q: Is the SC suggesting that a lawyer who sued in a harassment case

can get away with it? Does that mean to say that the lawyer is
immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from
damage suits. However, when he acts in the name of the client, he
should not be sued in a counterclaim in the very same case where
he has filed only as a counsel and not as party. Only claims for alleged
damages or other causes of action should be filed in aseparate case.
Thus, if you feel that the lawyer is acting maliciously, you file a
complaint but in a separate case. That’s why the case of Sapugay
should not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party

complaint. - A third (fourth, etc.)-party
defendant may allege in his answer his
defenses, counterclaims or cross-claims,
including such defenses that the third (fourth,
etc.)-party plaintiff may have against the
original plaintiff in respect of the latter's claim
against the third-party plaintiff. (n)
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Amilhamja, Adj.
Rule 7 complaint captioned as unlawful detainer is actually an action for

forcible entry where the allegations show that the possessor of the land
was deprived of the same by force, intimidation, strategy, threat or
PARTS OF A PLEADING stealth. Likewise, a complaint for unlawful detainer is actually an action
for collection of a sum of money where the allegations of the complaint
do not disclose that the plaintiff demanded upon the defendant to
vacate the property but merely demanded to pay the rentals in arrears.
In one case, while the complaint was denominated as one for specific
performance, the allegations of the complaint and the relief prayed for
actually and ultimately sought for the execution of a deed of
conveyance to effect a transfer of ownership of the property in
question. The action therefore, is a real action (Gochan vs. Gochan, 372
SCRA 256). Also although the complaint was denominated as one for
reformation of the instrument, the allegations of the complaint did not
preclude the court from passing upon the real issue of whether or not
the transfer between the parties was a sale or an equitable mortgage
as the said issue has been squarely raised in the complaint and had
been the subjectof arguments and evidence of the parties. (Lorbes vs.
CA 351 SCRA 716).
Sec. 1 – Caption. The caption sets forth the name of the
court, the title of the action, and the docket number if If the petitioner filed before the SC a petition captioned “Petition for
assigned. Certiorari” based on Rule 65 but the allegations show that the issues
The title of the action indicates the names of the raised are pure questions of law, the cause of action is not one based
parties. They shall all be named in the original on Rule 65 which raises issues of jurisdiction, but on Rule 45 which
complaint or petition; but in subsequent pleadings, it raises pure questions of law. The allegations of the pleading determine
shall be sufficient if the name of the first party on each the cause of action and not the title of the pleading (De Castro vs.
side be stated with an appropriate indication when Fernandez, Jr. GR No. 155041, Feb. 14, 2007)
there are other parties.
Sec. 2. The body. - The body of the pleading sets
Their respective participation in the case shall be forth its designation, the allegations of the
indicated. party's claims or defenses, the relief prayed for,
and the date of the pleading. (n)
a) Paragraphs - the allegations in the body of a
ILLUSTRATION: pleading shall be divided into paragraphs so
Q: What are the instances where the law does not require the numbered as to be readily identified, each of
name of the parties to be stated even in the complaint or pleading? which shall contain a statement of a single set of
-So, there must be a caption, title. Take note, the title of the action circumstances so far as that can be done with
indicates the names of the parties. They shall all be named in the convenience. A paragraph may be referred to by
original complaint or petition; but in the subsequent pleadings, it its number in all succeeding pleadings. (3a)
shall be sufficient if the name of the first party of each side be
stated without the others. You only write the first name of plaintiff (b) Headings - When two or more causes of
and defendant and followed by the word ‘ET AL”. action are joined, the statement of the first
shall be prefaced by the words "First cause of
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept action", of the second by "second cause of
of permissive joinder of parties. Now is it necessary that they shall action," and so on for the others.
be named? When one or more paragraphs in the answer
A: These are the following: are addressed to one of several causes of action
1.) Subsequent Pleading (e.g. answer, reply, etc.) in the complaint, they shall be prefaced by the
(Section 1); words "answer to the first cause of action" or
2.) Class suit (Rule 3, Section 12); "answer to the second cause of action" and so
3.) When the identity or name of the defendant is on; and when one or more paragraphs of the
unknown (Rule 3, Section 14); answer are addressed to several causes of
4.) When you sue an entity without judicial action, they shall be prefaced by words to that
personality(Rule 3, Section 15); effect.
(c) Relief - The pleading shall
5.) If a party is sued in his official capacity. Official (d) specify the relief sought, but it may add a
designation is sufficient. [e.g. Mr. Acelar vs. City general prayer for such further or other relief
Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. as may be deemed just or equitable. (3a, R6)
(e) Date - Every pleading shall be dated. (n)
Variance between caption and allegations in the pleading
It is not the caption of the pleading but the allegations therein which In the body, you state your allegations or defenses. Then at the
determine the nature of the action and the court shall grant relief end, you state the relief which we call PRAYER – what you are asking
warranted by the allegations and proof even if no such relief is the court: “Wherefore, it is respectfully prayed that judgment be
prayed for (Solid Homes Inc. vs. CA, 271 SCRA 157; Banco Filipino vs. rendered ordering defendant to pay plaintiff his loanof P1 million
CA, 332 SCRA 241; Lorbes vs. CA 351 SCRA 716). Thus, a with interest of 10% p.a. from this date until fully paid.” Then, you
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Amilhamja, Adj.
end up with the date of the pleading: “Davao City, Philippines, consequences made therein or the prayer that determines the relief
December 10, 1997.” to which the plaintiff is entitled. (Banco Filipino vs. CA 332 SCRA 241).
A pleading is divided into paragraphs so numbered as to be readily It is important to remember that the court may grant a relief not prayed
identified. Normally, a complaint starts: “Plaintiff, thru counsel, for as long as the relief is warranted by the allegations of the complaint
respectfully alleges that x x x.” Then first paragraph, second and the proof. (Lorbes vs. CA).
paragraph and so on. The first paragraph is normally the
statement of the parties and their addresses which is required Q: Is the prayer or relief part of the main action?
under Rule 6 where a complaint must state the names: A: NO, it is part of the complaint or answer but it may indicate what is
the nature of the cause of action. Cause of actions are mere allegations.
1. Plaintiff Juan dela Cruz is of legal age, a resident of Prayer is not part of the action but it is important because it might
Davao City whereas defendant Pedro Bautista, is also of enlighten us on the nature of the cause of action. That is the purpose
legal age and a resident of Davao City. of relief or prayer.
2. On such and such a date, defendant secured a loan
from plaintiff in the amount of so much payable on this EXAMPLE: Angelo filed a case against Ina for annulment of a contract
date. of sale. If you look at the caption, it is a personal action which should
3. The loan is now overdue but defendant still refused be instituted in the place where the parties reside. But if you look at
to pay. the prayer: “Wherefore, it is respectfully prayed that after trial, the
So every paragraph is numbered so that it can easily be deed of sale shall be annulled on the ground of intimidation, and the
identified in the subsequent pleadings. So in his Answer, the ownership of the land sold to the defendant in Digos be ordered
defendant will just refer to the #, “I admit the allegations in returned.” Actually, you are trying to recover the ownership of the land.
paragraph #5) So in other words, it is not a personal action but a real action.
Paragraph [b] is related to Rule 2 on joinder of causes of action. Sec 3 Signature and address.
Can you file one complaint embodying two or more causes of (a) Every pleading and other written
action? YES. submissions to the court must be signed by the
party or counsel representing him or her.
EXAMPLE: Angelo wants to file a case against Ina to collect three (b) The signature of counsel constitutes a
unpaid promissory notes. So, there are three causes of action. The certificate by him or her that he or she has
lawyer of Angelo decided to file only one complaint collecting the read the pleading and document; that to the
three promissory notes. Now, how should he prepare the best of his or her knowledge, information, and
complaint containing the three promissory notes? belief, formed after an inquiry reasonable
under the circumstances:
Plaintiff respectfully alleges: 1. that he is oflegal age x x x. (1) It is not being presented for any
FIRST CAUSE OF ACTION: In 1995, there was a loan improper purpose, such as to harass, cause
secured amounting to so much andit is not paid until now; unnecessary delay, or needlessly increase the
SECOND CAUSE OF ACTION: In 1995, there was a cost of litigation;
second loan…became payable and is not paid. (2) The claims, defenses, and other
THIRD CAUSE OF ACTION: x x x x. legal contentions are warranted by existing
law or jurisprudence, or by a non- frivolous
So, you indicate your different causes of action. That is how you argument for extending, modifying, or
prepare your complaint. On the other hand, the defendant will answer: reversing existing jurisprudence;
(3) The factual contentions have
ANSWER: evidentiary support or, if specifically so
ANSWER TO THE FIRST CAUSE OF ACTION x x x, identified, will likely have evidentiary support
ANSWER TO THE SECOND CAUSE OF ACTION x x x after availment of the modes of discovery
, ANSWER TO THE THIRD CAUSE OF ACTION x x x. under these rules; and
(4) The denials of factual contentions
Do not combine them together in one paragraph. Even in trial when are warranted on the evidence or, if
you present your exhibits, you might get confused because you specifically so identified, are reasonably based
combined all the three causes of action in one paragraph. But with on belief or a lack of information.
this one, the presentation is clearer, the outline is clearer and it is (c) If the court determines, on motion or motu
more scientifically arranged than joining them in one story. proprio and after notice and hearing, that this
rule has been violated, it may impose an
Under paragraph [c], the pleading must state the relief sought. But appropriate sanction or refer such violation to
it may add a general prayer for such further other relief as may be the proper office for disciplinary action, on any
just and equitable like yung mga pahabol na “Plaintiff prays for such attorney, law firm, or party that violated the
further or other relief which the court may deem just or equitable.” rule, or is responsible for the violation. Absent
exceptional circumstances, a law firm shall be
The relief or prayer, although part of the complaint, does not held jointly and severally liable for a violation
constitute a part of the statement of the cause of action. It does not committed by its partner, associate, or
also serve to limit or narrow the issues presented (UBS vs. CA 332 employee. The sanction may include, but shall
SCRA 534) not be limited to, non-monetary directive or
sanction; an order to pay a penalty in court; or,
It is the material allegations of the complaint, not the legal if imposed on motion and warranted for
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Amilhamja, Adj.
effective deterrence, an order directing on which provides:

payment to the movant of part or all of the
reasonable attorney’s fees and other Rule 9.01 – A lawyer shall not delegate to any unqualified person the
expenses directly resulting from the performance of any task which by law may only be performed by a
violation, including attorney’s fees for the member of the Bar in good standing.
filing of the motion for sanction. The lawyer
or law firm cannot pass on the monetary “A signature by agents of a lawyer amounts to signing by unqualified
penalty to the client. persons, something the law strongly proscribes. Therefore, the
blanket authority entrusted to just anyone is void. Any act taken
What is the significance of the signature of counsel? pursuant to that authority is likewise void. Hence, there is no way it
—Under Section 3, Rule 7, “the signature of counsel constitutes a could be cured or ratified by counsel.” (Republic vs. Kenrick
certificate by him or her that he or she has read the pleading and Development Corp.)
document; that to the best of his or her knowledge, information,
and belief, formed after an inquiry reasonable under the IMPLIED CERTIFICATION IN A PLEADING
circumstances: “The signature of counsel constitutes a
1. It is not being presented for any improper purpose, such as to certification by him that he has read the
harass, cause unnecessary delay, or needlessly increase the cost pleading; that to the best to his knowledge,
of litigation; information, and belief there is good ground to
2. The claims, defenses, and other legal contentions are support it; and that it is not interposed for
warranted by existing law or jurisprudence, or by a non-frivolous delay.”
argument for extending, modifying, or reversing existing
jurisprudence; Q: When a lawyer signs a pleading, what is he certifying?
3. The factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after A: Second paragraph says, he is certifying that he has read the pleading,
availment of the modes of discovery under these rules; that to the best of his knowledge, information and belief, there is a
4. The denials of factual contentions are warranted on the good ground to support it, and it is not interposed for delay. That is
evidence or, if specifically so identified, are reasonably based on called as an IMPLIED CERTIFICATION IN A PLEADING (Arambulo vs.
belief or a lack of information. Perez, 78 Phil. 387). That was alreadyasked in the bar once.
What is the consequence if the lawyer violates what he certifies? BAR QUESTION: What is the meaning of the phrase “Implied
—The lawyer may receive sanctions from the Court if he or she Certification in a Pleading”?
violates the rule or reneges on his or her certification. The A: “Implied Certification in a Pleading” means that when a lawyer signs
sanction may be extended to the law firm which jointly and a pleading he is certifying that he has read it, to the best of his
severally liable for a violation committed by its partner, associate, knowledge, information and belief there is a good ground to support it,
or employee. (Section 3, Rule 7). and it is not interposed for delay.
Signature and address – every pleading must be signed by the So, when a pleading is not signed it produces no legal effect. It is as if
partyor the counsel representing him. no pleading has been filed.
A signed pleading is one that is signed either by the party himself Q: Now, suppose it was just an inadvertent omission, it was not
or his counsel. Section 3, Rule 7 is clear on this matter. It requires intentional maybe because he was hurrying to file the pleading, the
that a pleading must be signed by the party or counsel lawyer had it filed when actually he has not signed it yet.
representing him. Therefore, only the signature of either the party
himself or his counsel operates to validly convert a pleading from A: Well, actually if that is in good faith, the court may forgive the
one that is unsigned to one that is signed. (Republic vs. Kenrick counsel because the law says, “however, the court, may in its
Development Corp. 351 SCRA 716) discretion, allow such deficiency to be remedied if it shall appear that
the same was due to mere inadvertence and not intended for delay.”
“It has been held that counsel’s authority and duty to sign a Maybe, alright, you sign it now in order that it will produce a legal
pleading are personal to him.” He may not delegate it to just any effect.
person because the signature of counsel constitutes an assurance
by him that: However, if the lawyer files a pleading which is UNSIGNED
1. he has read the pleading; DELIBERATELY, then, according to the rules, he shall be subject to
2. that to the best of his knowledge, information and appropriate disciplinary action. That is practically unethical ‘no? Not
belief, there is a good ground to support it; and only that, he is also subject to disciplinary action if he signs a pleading
3. that it is not interposed for delay. in violation of this Rule or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a change of his
Under the Rules of Court, it is counsel alone, by affixing his address..
signature, who can certify to these matters.
Now, this ground – fails to promptly report to the court a change of
“The preparation and signing of a pleading constitute legal work his address has been inserted in 1997 Rules, this was not found in
involving practice of law which is reserved exclusively for the the prior Rules perhaps to prevent delays.
members of the legal profession. Accordingly however, counsel
may delegate the signing of a pleading to another lawyer but Q: What do you mean by this?
cannot do so in favor of one who is not. In so ruling the Court cites A: A lawyer will file a pleading in court, he will say this is his address,
The Code of Professional Responsibility, the pertinent provision and then he moves his office without telling the court or the
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Amilhamja, Adj.
opposing counsel of his new address. So, the court will be sending a special power of attorney, should be attached to the pleading.
notices and orders to his old address and it is returned to sender (Section 4, Rule 7).
because the lawyer already moved to another place. So, it causes
delay. I, Juan de la Cruz of legal age, after being sworn in accordance with law,
hereby say that:
So, in order to penalize the lawyer, subject to disciplinary action, I am the plaintiff in the above entitled case. I
it is his obligation to inform the court and even the opposing caused the preparation of this complaint; I
counsel about his new address so that all court orders, decisions read the allegations therein;
and all pleadings will be served on his address. I think what And they are true and correct of my ownknowledge.
prompted the SC to insert this is the fact that it has been the cause Signed
of delays in many cases. Affiant
Subscribed and sworn to before me on this 2nd
Disciplinary action on counsel in the following cases: day of October 2001, in the City of Cebu,
1. deliberately filing an unsigned pleading; Philippines.
2. deliberately signing a pleading in violation of the Rules;
3. alleging scandalous or indecent matter in the Panfilo Corpuz
pleading; or Notary Public
4. failing to promptly report a change of his/her address. That is what you call verification of a pleading. That the pleader,
whether plaintiff or defendant, will attest that the allegations in his
Signature of a disjoined party complaint or in his answer are true and correct of his own knowledge.
The Court rules that the absence of the signature of the person And then, he will sign it, and then below that, there will be the so-called
misjoined as a party-plaintiff in either the verifification page or “JURAT” - Subscribed and sworn to before me on this day of
certification against forum shopping is not a ground for the December 1997, in the City of Cebu, Philippines. Then, signed by the
dismissal of the action. There is no judicial precedent affirming or notary public. Meaning, statements, in the pleading are confirmed to
rejecting such a view, but we are comfortable with making such a be correct, under oath, by the defendant. That is called, the verification
pronouncement. A disjoined party plaintiff has no business of a pleading.
participating in the case as a plaintiff in the first place, and it
would make little sense to require the disjoined party in -Under 2019 Amendments, a pleading is verified by an affidavit of an
complying with all the requirements expected of plaintiffs (Chua affiant duly authorized to sign said verification. The authorization of the
v. Torres GR No. 151900, Aug 30, 2005). affiant to act on behalf of a party, whether in the form of a secretary’s
certificate or a special power of attorney, should be attached to the
VERIFICATION
pleading.
-This requirement is applicable when the one who would verify the
Sec. 4. Verification - Except when otherwise
pleading is not the party but the one who was authorized by the party.
specifically required by law or rule, pleadings
need not be under oath or verified.
-The requirement that proof of authority of the affiant who verified for
A pleading is verified by an affidavit of an
and in behalf of the party must be attached to the pleading was
affiant duly authorized to sign said
introduced to address, once and for all, the persistent issue on whether
verification. The authorization of the affiant to
the affiant has the authority to verify the pleading for and in behalf of
act on behalf of a party, whether in the form
the party.
of a secretary’s certificate or a special power
-The amendment must have been inspired by the ruling of the Supreme
of attorney, should be attached to the
Court in the case of Cosco Philippines Shipping, Inc. , vs. Kemper
pleading, and shall allege the following
Insurance Co, 670 SCRA 343. The SC ruled:
attestations:
-“We have consistently held that the certification against forum
a. The allegations in the pleading are true and
shopping must be signed by the principal parties. If, for any reason, the
correct based on his or her personal
principal party cannot sign the petition, the one signing on his behalf
knowledge, or based on authentic documents.
must have been duly authorized.”
b. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase the
What should be attested in the verification?
cost of litigation; and
(a) The allegations in the pleading are true and correct
c. The factual allegations therein have
based on his or her personal knowledge, or based on
evidentiary support after reasonable
authentic documents.
opportunity for discovery.
(b) The pleading is not filed to harass, cause unnecessary
A pleading required to be verified that
y delay, or needlessly increase the cost of litigation;
contains a verification based on “information
and
and belief,” or upon “knowledge, information
(c) The factual allegations therein have evidentiary
and belief,” or lacks a proper verification, shall
support after reasonable opportunity for discovery.
be treated as an unsigned pleading.
BAR QUESTION: Name as many pleadings as you can which must be
Verification
verified.
—Except when otherwise specifically required by law or rule,
A: The following:
pleadings need not be under oath, verified or accompanied by
1) Rule 8 – when you deny the due execution of an actionable
affidavit.
document;
— A pleading is verified by an affidavit of an affiant duly authorized
2) Summary Rules – all pleadings under summary rulesshould
to sign said verification. The authorization of the affiant to act on
be verified;
behalf of a party, whether in the form of a secretary’s certificate or
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Amilhamja, Adj.
3) Special Civil Actions – petitions for certiorari, prohibition

and mandamus. CERTIFICATION OF NON-FORUM SHOPPING
4) Statement of Claim for Small Claims cases as well as the
response thereto (Secs. 5 & 11, Procedure for Small Sec. 5. Certification against forum shopping.--
Claims Cases) The plaintiff or the principal party shallcertify
5) Complaint for Injunction (Sec. 4 R 58) under oath in the complaint or other initiatory
6) Application for Appointment of Receiver (Sec. 1 R 59) pleading asserting a claim for relief, or in a
7) Application for Support Pendente Lite (Sec. 1 R 69) sworn certification annexed thereto and
8) Petition for Forcible Entry or Unlawful Detainer, the simultaneously filed therewith:
answers thereto, and the answers to any compulsory
counterclaim and cross-claim pleaded in the answer (Sec. a) that he has not theretofore commenced
4 R 70) any action or filed any claim involving thesame
9) Petition for Indirect Contempt (Sec. 4 R 71) issues in any court, tribunal or quasi- judicial
10) Petition for Relief from Judgment or Order (Sec. 3 R 38) agency and, to the best of his knowledge, no
11) Petition for Review from the RTC to the SC (Sec. 2(c) R 41) such other action or claim is pending therein;
12) Petition for Review from RTC to SC (Sec. 1 R 42)
13) Petition for Review from CTA and other quasi-judicial b) if there is such other pending action or
agencies to the CA (Sec. 5 R 43) claim, a complete statement of the status
14) Appeal by Certiorari Under R 45 from CA to SC (Sec. 1 R thereof; and
45)
15) Petition for Appointment of a Guardian (Sec. 2 R 93) c) iif he should thereafter learn that the same
16) Petition for Leave filed by Guardian to Sell or Encumber or similar action or claim has been filed or is
Property of an Estate (Sec. 1 R 95) pending, he shall report that fact within five
17) Petition for Declaration of Competency of a Ward (Sec. 1 (5) calendar days therefrom to the court
R 97) wherein his aforesaid complaint or initiatory
18) Petition for Habeas Corpus (Sec. 3 R 102) pleading has been filed.
19) Petition for Change of Name (Sec. 2 R 103) The authorization of the affiant to act on
20) Petition for Voluntary Judicial Dissolution of a behalf of a party, whether in the form of a
Corporation (Sec. 1 R 105) secretary’s certificate or a special power of
21) Petition for Cancellation or Correction of Entries in the attorney, should be attached to the pleading.
Civil Registrar (Sec. 1 R 108)
Failure to comply with the foregoing
Q: Now, on the other hand, suppose a pleading does not require requirements shall not be curable by mere
verification but the lawyer had it verified. What is the effect? amendment of the complaint or other
A: There is no effect, just surplusage! A pleading in general is not initiatory pleading but shall be cause for the
required to be verified. But I will verify it. Is there something wrong dismissal of the case without prejudice, unless
with it? Technically, none. But if it is required to be verified and otherwise provided, upon motion and after
you omit the verification, it is formally defective. hearing. The submission of a false certification
or non- compliance with any of the
undertakings therein shall constitute indirect
Please take NOTE: contempt of court, without prejudice to the
corresponding administrative and criminal
—A pleading required to be verified that contains a verification actions. If the acts of the party or his counsel
based on “information and belief,” or upon “knowledge, clearly constitute willful and deliberate forum
information and belief,” or lacks a proper verification, shall be shopping, the same shall be ground for
treated as an unsigned pleading. summary dismissal with prejudice and shall
(Section 4, Rule 7). constitute direct contempt, as well as a cause
for administrative sanctions.
HOWEVER:
—Defect in verification does not necessarily render the pleading The certification is mandatory under Sec. 5 of Rule 7 but not
defective. It is only a formal defect and not a jurisdictional jurisdictional. (Robert Development Corp. vs. Quitain)
requirement. The requirement is a condition affecting only the
form of the pleading (Benedicto-Munoz vs. Cacho- Olivares, GR This rule applies as well to special civil actions since a special civil
No. 179121, November 9, 2015; Waterfront Cebu Casino Hotel vs. action is governed by the rules for ordinary civil actions, subject to
Ledesma, GR No. 197556, march 25, 2015). the specific rules prescribed for a special civil action. Such specific
rule appears under Rule 46, Sec. 3 which requires that every petition
for certiorari to be accompanied by a sworn certification ofnon-
forum shopping. (Wacnang vs. Comelec, GR No. 178024 Oct. 17,
2008)
Meaning of Forum Shopping

There is forum shopping when, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion, other than by appeal or
certiorari, in another. There can also be forum shopping when a party
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Amilhamja, Adj.
institutes two or more suits in different courts, either Liberal interpretation of the rule
simultaneously or successively, in order to ask the courts to rule on It has also been held that the rules on forum shopping, which were
the same or related causes and/or to grant the same or substantially precisely designed to promote and facilitate the orderly
the same reliefs on the same supposition that one or the other court administration of justice, should not be interpreted with such
would make a favorable disposition or increase a party’s chances of absolute literalness as to subvert its own ultimate and legitimate
obtaining a favorable decision or action.(Huibonhoa vs. Concepcion objective which is the goal of all rules of procedure – that is, to
GR 153785, August 3, 2006; Heirs of Cesar Marasigan vs. Marasigan, achieve substantial justice as expeditiously as possible (Great
GR 156078 March 14, 2008) Southern Maritime Services Corp. vs. Acuna 452 SCRA 422). Hence,
the rule is subject to the power of the SC to suspend procedural rules
It is an act of a party against whom an adverse judgment has been and to lay down exceptions to the same.
rendered in one forum of seeking and possibly getting a favorable Examples:
opinion in another forum, other than by appeal or the special civil • While a petition for certiorari is flawed where the certification
action of certiorari, or the institution of two or more actions or of non-forum shopping was signed only by counsel and not by
proceedings grounded on the same cause on the supposition that the party, this procedural lapse was overlooked by the Court
one or the other court would make a favorable disposition. (Sps. in the interest of justice (Sy Chin vs. CA 345 SCRA 673). In
Carpio vs. Rural Bank of Sto. Tomas Batangas GR 153171 May 4, another case, the fact that the parties were abroad at a time
2006) when the petition was filed, was considered a reasonable cause
to exempt the parties from compliance with the requirement
Rationale against forum shopping that they personally execute the certification against forum
The rationale against forum shopping is that a party should not be shopping (Hamilton vs. Levy 344 SCRA 821). In De Guia vs. De
allowed to pursue simultaneous remedies in two different fora. Guia 356 SCRA 287, the SC went to the extent of invoking its
Filing multiple petitions or complaints constitutes abuse of court power to suspend the Rules by disregarding the absence of the
processes, which tends to degrade the administration of justice, certification against forum shopping in the interest of justice.
wreaks havoc upon orderly judicial procedure, and adds to the • In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled that
congestion of the heavily burdened dockets of the court. Thus, the where the petitioners were sued jointly as “Mr. and Mrs.”
rule proscribing forum shopping seeks to promote candor and over a property in which they were alleged to have common
transparency before the courts to promote the orderly interest, the signing of the certification by one of the
administration of justice, prevent undue inconvenience upon the petitioners was held to be a substantial compliance of the rule.
other party, and save the precious time of the courts. It also aims to In a subsequent ruling in the case of Docena vs. Lapesura (355
prevent the embarrassing situation of two or more courts or SCRA 658), where only the husband signed the certificate
agencies rendering conflicting resolutions or decisions upon the against forum shopping in a petition involving the conjugal
same issue (Huibonhoa vs. Concepcion, supra). residence of the spouses, the SC considered the certification as
having substantially complied with the requirements.
How to determine existence of forum shopping • In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), a similar
To determine whether a party violated the rule against forum ruling was made where the Court held that there was
shopping, the most important question to ask is whether the substantial compliance with the Rules where only one
elements of litis pendentia are present or whether a final judgment petitioner signed the certification against forum shopping in
in one case will result to res judicata in another. Otherwise stated, behalf of all the other petitioners being all relatives and co-
to determine forum shopping, the test is to see whether in the two
owners of the properties in dispute, and who shared a common
or more cases pending, there is
interest in them, had a common defense in the complaint for
(a) identity of parties,
partition, filed the petition collectively, and raised only one
(b) identity of rights or causes of action, and
argument to defend their rights over the properties in question.
(c) identity of reliefs sought (Huibonhoa vs. Concepcion)
• In Bases Conversion Development Authority GR No. 144062,
November 2, 2006, while only one petitioner signed the
What is pivotal in determining whether forum shopping exists or not
verification and certification, it was held that such fact is not fatal
is the vexation caused the courts and parties-litigants by aparty who
to the petition. The Court ruled that the signature of a principal
asks different courts and/or administrative agencies to rule on the
party satisfies the requirement because under the Rules it is clear
same or related causes and/or grant the same or
that the certification may be signed by a principal party.
substantially the same reliefs, in the process creating possibility of • In HLC Construction and Development Corp. vs. Emily Homes
conflicting decisions being rendered by the different courts Subdivision Homeowners Association 411 SCRA 504, the Court
and/or administrative agencies upon the same issues (Lim vs. ruled that the signature of only one petitioner substantially
Vianzon GR 137187, August 3, 2006). complied with the rules because all the petitioners shared a
common interest and invoked a common cause of action or
Who executes the certification? defense.
It is the plaintiff or principal party who executes the certification
under oath. (Sec. 5). The certification must be executed by the
party, not the attorney (Damasco vs. NLRC 346 SCRA 714). Who signs the certification if the plaintiff is a juridical entity?
— Certification must be executed by properly authorized persons
It is the petitioner and not the counsel who is in the best position (National Steel Corporation vs. CA, 388 SCRA 85, 91-92).
to know whether he or it actually filed or caused the filing of a -SPA, secretary’s certificate + attach proof of authority
petition. A Certification signed by counsel is a defective —The authorization of the affiant to act on behalf of a party, whether
certification and is a valid cause for dismissal (Far Eastern Shipping in the form of a secretary’s certificate or a special power of attorney,
Company vs. CA 297 SCRA 30). This is the general and prevailing should be attached to the pleading. (Section 5, Rule 7).
rule. —Hence, with respect to a corporation, the board of directors or by one
who is duly authorized by resolution of the board of directors;
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Amilhamja, Adj.
otherwise, the complaint will have to be dismissed (Cosco Philippines — Not curable by amendment.
Shipping, Inc. , vs. Kemper Insurance Co., 670 SCRA 343, 351-352). —False certification and non-compliance with undertaking constitute
direct contempt.
Lack of certification not cured by subsequent submission —If forum shopping is wilful or deliberate – ground for summary
In appeal by certiorari to the Supreme Court, the lack of certification dismissal with prejudice and would constitute direct contempt (Section
is generally not curable by the submission thereof after the filing of 5, Rule 7).
the petition. Sec. 5, Rule 45 of the 1997 Rules provides that failure
of the petitioner to submit the required documents that should *How should the court treat non-compliance with requirements of
accompany the petition, including the certification, required in Sec. defective verification and certification - against forum shopping.
4, Rule 45, shall be sufficient ground for the dismissal thereof. — Non-compliance with or defect in verification will not render the
pleading fatally defective. The defect may be dispensed with. It is
Exceptions deemed complied with when one who signed it has ample knowledge
In certain exceptional circumstances, however, the Court has and can swear to the truth of the allegation.
allowed the belated filing of the certification. In all these cases, there —As to certification against forum shopping, non-compliance therewith
were special circumstances or compelling reasons that justified the or defect therein, is generally not curable by amendment or subsequent
relaxation of the rule. submission of the correct one. It can only be relaxed under special and
compelling reason. It must be signed by all parties; those who did not
Lack of authority to sign certification sign shall be considered dropped as parties. (Vda. de Formoso vs. PNB,
The same liberal construction applies to certifications against forum 650 SCRA 35, 44-45). No appeal from an order of dismissal
shopping signed by the person on behalf of a corporation which are
unaccompanied by proof that said signatory is authorized to file a If a complaint is dismissed for failure to comply with required
petition on behalf of the corporation. A liberal interpretation is given certification, the plaintiff cannot appeal from such order. This is
to the rule more so where the petitioner did submit a certification because an order dismissing an action without prejudice is not
against forum shopping, but he failed only to show proof that the appealable. The remedy provided for under Sec. 1 of Rule 41 is to
signatory was authorized to do so. In several cases, (Shipside avail of the appropriate special civil action under Rule 65 (Sec. 1[g],
Incorporated vs. CA 404 SCRA 981; Ateneo de Naga University vs. Rule 41 as amended, Rules of Court.
Manalo 458 SCRA 325, etc) the Court permitted the subsequent
submission of proof of authority to sign the certification against Effect of willful and deliberate forum shopping –
forum shopping.
Pursuant to Sec. 5, it will result to a summary dismissal, that is,
Signing the Certification when the plaintiff is a juridical person without need of a motion to dismiss and hearing and the
A juridical entity, unlike a natural person, can only perform physical dismissal is with prejudice.
acts through properly delegated individuals. The certification against
forum shopping where the plaintiff or a principal party is a juridical Effect of submission of a false certification
entity, like a corporation, may be executed by properly authorized It shall constitute:
persons. This person may be the lawyer of the corporation. As long
1) indirect contempt
as he is duly authorized by the corporation and has personal 2) without prejudice to the corresponding administrative
knowledge of the facts required to be disclosed in the certification and criminal sanctions (Sec.5)
against forum shopping, the certification may be signed by the
authorized lawyer (National Steel Corporation vs. CA 388 SCRA 85). Sec. 6. Contents. — Every pleading stating a party’s
claims or defenses shall, in addition to those
Authority to sign Certification of Non-Forum Shopping mandated by Section 2, Rule 7, state the following:
A board resolution purporting to authorize a person to sign (a) Names of witnesses who will be presented to
documents on behalf of the corporation must explicitly vest such prove a party’s claim or defense;
authority. The signing of verifications and certifications against
forum shopping is not integral to the act of filing; this may not be (b) Summary of the witnesses’ intended
deemed as necessarily included in an authorization merely to file testimonies, provided that the judicial
cases. (MCWD vs. Margarita A. Adala, GR No. 168914, July 4, 2007) affidavits of said witnesses shall be attached
to the pleading and form an integral part
thereof. Only witnesses whose judicial
What is the rule if there are several plaintiffs or petitioners? affidavits are attached to the pleading shall
— The certification against forum shopping must be signed by all the be presented by the parties during trial.
plaintiffs or petitioners in a case; otherwise, those who did not sign Except if a party presents meritorious
will be dropped as parties to the case. Is there an exception? reasons as basis for the admission of
- YES. When plaintiffs share a common interest and invoke a common additional witnesses, no other witness or
cause of action or defense, the signature of only one of them affidavit shall be heard or admitted by the
substantially comply with the rules (Basan vs. Coca-Cola Bottlers court; and
Philippines, GR No. 174365-66, Febraury 4, 2015; Prince Transport, (c) Documentary and object evidence in
Inc., vs. Garcia, 639 SCRA 312). support of the allegations contained in the
pleading
Effects of non-compliance with the rule on certification against
forum shopping -a new provision
— It is a ground for dismissal. -only applicable in pleadings and does not apply to special proceedings
— The dismissal on this ground is without prejudice, unless otherwise -note letter (b); otherwise, penalty is due (Rule 17, Sec. 3)
provided.
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Amilhamja, Adj.
RULE 8 -plaintiff corporation’s capacity to sue, include supporting

particulars
—In pleading judgment, certified true copy thereof must be
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
attached (Sec. 6, Rule).
-otherwise, there will be no cause of action
Sec. 1 In general – Every pleading shall contain
in a methodical and logical form, a plain, Matters which must be specifically averred
concise and direct statement of the ultimate —In all averments of fraud or mistake, the circumstances
facts, including the evidence on which the constituting fraud or mistake must be stated with particularity
party pleading relies for his or her claim or (Section 5, Rule 8).
defense, as the case may be. —It is not enough for the complaint to allege that he was
If a cause of action or defense relied on is defrauded by the defendant. Under the provision, the complaint
based on law, the pertinent provisions thereof must state with particularity the fraudulent acts of the adverse
and their applicability to him or her shall be party.
clearly and concisely stated.
Recap;
General rule: Q: What are the essential elements of a cause of action?
Every pleading shall contain in a methodical and logical form, a plain, A: The following:
concise and direct statement of the ultimate facts, including the 1.) Statement of the right;
evidence on which the party pleading relies for his or her claim or 2.) Statement of the obligation;
defense, as the case may be. 3.) Statement of the violation;
If a cause of action or defense relied on is based on law, the pertinent 4.) Statement of damage.
provisions thereof and their applicability to him or her shall be
clearly and concisely stated. (Section 1, Rule 8). You analyze a complaint from the first to the last paragraph, you find
out whether the four are present.
The ultimate facts refer to the essential facts of the claim. A fact is
essential if it cannot be stricken out without leaving the statement So if the statement can be deleted and the cause of action is still
of the cause of action insufficient (Ceroferr Realty Corporation vs. CA complete, then it is not a statement of ultimate fact. It is only a
376 SCRA 144). The ultimate facts are the important and substantial statement of evidentiary fact.
facts which form the basis of the primary right of the plaintiff and
which make up the wrongful act or omission of the defendant. The Evidentiary Facts
ultimate facts do not refer to the details of probative matter or to Evidentiary facts are the facts which will prove the ultimate facts. They
the particulars of evidence by which the material elements are to be should not be stated in the pleading. They should be brought out
established. They are the principal, determinate, constitutive facts, during the trial. They are proper during the trial but they have no place
upon the existence of which, the entire cause of action rests. in your pleading.
(Tantuico, Jr. vs. Republic, 204 SCRA 428)
Evidentiary facts refer to those which are necessary to prove the
Section 1, Rule 8 of the 2019 Amendments mandates that the ultimate fact or which furnish evidence of the existence of some
pleading not only contain concise and direct statement of the other facts.
ultimate facts constituting party’s claim or defense. It also
requires to state the evidence needed in order to prove said In the law on Evidence, ultimate facts are called factum probandum
ultimate facts. as distinguished from factum probans (evidentiary facts).
— This is to be consistent with Section 6, Rule 7.
— This rule can be likened to the Section 3, Rule 3 of the Rules of ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR
Procedure for Environmental Cases which provides that: “The DEFENSES
plaintiff shall attach to the verified complaint all evidence
proving or supporting the cause of action consisting of the Sec. 2. Alternative causes of action or defenses. -
affidavits of witnesses, documentary evidence and if possible, A party may set forth two or more statements of
object evidence. The affidavits shall be in question and answer a claim or defense alternatively or
form and shall comply with the rules of admissibility of hypothetically, either in one cause of action or
evidence.” defense or in separate causes of action or
defenses. When two or more statements are
Matters which can be averred generally: made in the alternative and one of them if made
• Condition precedent (Sec. 3, Rule 8) independently would be sufficient, the pleading
• Capacity to sue or be sued (Sec. 4, Rule 8) is not made insufficient by the insufficiency of
i.e. corporation duly organized - plaintiff one ormore of the alternative statements. (2)
• Judgment (Sec. 6, Rule 8)
• Malice, intent, knowledge or other condition of the mind Is pleading with different causes of action or defense permissible?
(Sec. 5, Rule 8) -Yes. Under Section 2, Rule 8, it is provided that “a party may set
• Official document or act (Sec. 9, Rule 8) forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate
Please take NOTE: causes of action or defenses. ”
—If one contest the party’s capacity to sue, it must be denied
specifically with supporting particulars (Sec. 4, Rule 8). The provision recognizes that the liability of the defendant may
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possibly be based on either one of two possible causes of action. defenses which are inconsistent with each other.
The plaintiff, may for example, believe that the liability of the
carrier may be based either on a breach of contract of carriage or That is perfectly allowed as it is alternative and during trial the
on a quasi-delict, but he may not be certain which of the causes pleader may show the best one rather than not stating it in the
of action would squarely fit the set of facts alleged in the pleading and during the trial you waive the best defense because
complaint, although he is certain that he is entitled to relief. He according to the next rule, Rule 9, defenses or objections not
may therefore, state his causes of action in the alternative. This pleaded in the answer are deemed waived.
provision in effect, also relieves a party from being compelled to
choose only one cause of action. Take note that you have to correlate this topic on the related
provisions we have already taken up:
Q: What happens if one cause of action is insufficient? Will it
cause the dismissal of the complaint? For EXAMPLE:
A: No, the complaint will remain insofar as the sufficient cause of 1.) Rule 2, Section 5 – where a party may, in one pleading state
action is stated. The insufficiency of one will not affect the entire in the alternative or otherwise, as many causes of
pleading if the other cause of action is insufficient. action;
Alternative Defenses 2.) Rule 3, Section 6 – on permissive joinder of parties. When

Q: You are the defendant. You are confronted with the same may 2 persons or more be joined as plaintiffs or
problem. There is a complaint against you and you have 3 possible defendants and how are they joined? They are joined
defenses. Am I obliged to make a choice immediately? jointly, severally, or alternatively; and
A: NO. The law allows the defendant to cite the 3 possible defenses
alternatively. Meaning, each is my defense or not. 3.) Rule 3, Section 13 – on alternative defendants. When you
No matter if your defenses are inconsistent Section 2, Rule 8 allows are uncertain who is the real defendant, you may
the defendant to plead his defenses hypothetically or alternatively. join them alternatively although the relief against
They may be inconsistent with each other but what is important is one may be inconsistent with the other.
each defense is consistent in itself. Meaning, each defense, when
taken alone, is a good defense. You look at them separately. Do not Remember these provisions because they are interrelated. Thus,
compare them. when you study the Rules, don’t limit yourself to a particular
provision. Look for other related provisions so you may see the entire
For EXAMPLE: picture. That’s called co-relation – “You don’t only see the tree but
Plaintiff files a case against a defendant to collect an the entire forest.” This is very helpful in the bar exam.
unpaid loan. The basic allegation is that the
defendant obtained a sum of money by way of loan HOW ALLEGATIONS IN A PLEADING ARE MADE
and never paid it. Here is defendant’s answer:
Q: How do you make allegations or averments in a pleading? Can you
a.) “That is not true. I never borrowed any do it in a general manner or do you need to be specific? How do you
money from the plaintiff.” That is a allege your ultimate facts? Is it in particular or general terms?
defense of denial. A: It depends on what matters you are alleging in your complaint –
b.) “Assuming that I received money from the whether it is a condition precedent, capacity to sue or be sued, fraud,
plaintiff, that money was not a loan but mistake, malice, judgment, or official document or act.
plaintiff’s birthday gift to me.” In other
words, it was a donation. ALLEGATION OF A CONDITION PRECEDENT
c.) “Assuming that the money I received from
the plaintiff was really a loan. However, Sec. 3. Conditions Precedent. - In any pleading,
such amount was completely paid.” a general averment of the performance or
Defense of payment. occurrence of all conditions precedent shall be
sufficient. (3)
So, I have 3 defenses. How can you reconcile these 3 defenses? They Common usage refers to conditions precedent as matters which must
are inconsistent with each other but it should not be taken against be complied with before a cause of action arises. When a claim is
the defendant. What is important is that each defense is consistent subject to a condition precedent, the compliance of the same must be
in itself. Look at them separately. That is also called a “SHOTGUN alleged in the pleading.
ANSWER”.
The rule allowing alternative defenses is consistent with the Remember, that one of the elements of a right of action is that before
omnibus motion rule which requires that all motions attacking a you can go to court, you must comply with all the conditions precedent.
pleading shall include all objections then available, and all objections
not so included shall be deemed waived (Sec. 8, Rule 15) Q: When you allege compliance with the conditions precedent, is it
necessary for you to be specific what are those conditions precedent?
However, during that trial, you have to choose among them which A: NO. Section 3 says that in every pleading, a general averment for the
you think is true based on evidence. The problem is that you performance of all conditions precedent shall be sufficient. A general
choose one but it turned out that a different defense would be allegation will suffice.
correct. You cannot use that defense anymore. There is a prejudice
because during the trial, I will choose among them with the evidence Examples of conditions precedent:
I have. I can abandon the others. And that is even better because (a) A tender of payment is required before making a
you might confuse the plaintiff of what really is your defense. Thus, consignation (Art. 1256 Civil Code);
a lawyer should not be afraid to hypothetically or alternatively plead (b) Exhaustion of administrative remedies is required in certain
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cases before resorting to judicial action (Lopez vs. City of

Manila, 303 SCRA 448; Dy vs. CA 304 SCRA 331); There’s a case which you will study in Corporation Law whether a
(c) Prior resort to barangay conciliation proceedings is foreign corporation can sue in Philippine court. Under the law, it can
necessary in certain cases (Book III, Title I, Chapter 7, Local sue provided it is licensed to do business in the Philippines.The
Government Code of 1991); SC emphasized that if a foreign corporation is suing somebody in
(d) Earnest efforts toward a compromise must be undertaken Philippine courts, the complaint must specifically allege that a
when the suit is between members of the same family and foreign corporation is doing business in the Philippines with a license
if no efforts were in fact made, the case must be dismissed to do. Otherwise, it cannot sue.
(Art. 151 Family Code);
(e) Arbitration may be a condition precedent when the “A party desiring to raise an issue as to the
contract between the parties provides for arbitration first legal existence of any party or the capacity of
before recourse to judicial remedies. any party to sue or be sued in a representative
The failure to comply with a condition precedent is an independent capacity, shall do so by specific denial, which
ground for a motion to dismiss: that a condition precedent for filing shall include such supporting particulars as are
the claim has not been complied with (Sec. 1[j], Rule 16) peculiarly within the pleader's knowledge…”
A: According to Section 3, a general averment will be sufficient. (section 4, 2nd sentence)
You need not specifically allege compliance of conditions precedent.
Therefore, an averment of the performance or occurrence of all EXAMPLE: You are the plaintiff corporation with juridical capacity. I
conditions precedent may be made generally and it shall be am the defendant. Suppose I will deny your capacity to sue. I will
sufficient. deny that you are a corporation licensed to do business in the
Philippines. Now, the law requires me to deny your legal capacity
ALLEGATION OF CAPACITY TO SUE OR BE SUED and I must state the reason or basis of such denial – why you are not
of legal age, why you are not a corporation.
Sec. 4. Capacity - Facts showing the capacity
of a party to sue or to be sued or the authority This is so because the law says that when you deny or when you
of a party to sue or to be sued in a question the legal existence of a party or the capacity of any party to
representative capacity or the legal existence sue and be sued, you shall do so by specific denial which shall include
of an organized association of persons that is such supporting particulars as are peculiarly within the defendant’s
made a party, must be averred. A party knowledge. You cannot plead a general statement that you deny. Your
desiring to raise an issue as to the legal denial must be particular. You must be more specific about what you
existence of any party or the capacity of any are denying.
party to sue or be sued in a representative
capacity, shall do so by specific denial, which ALLEGATION OF FRAUD OR MISTAKE
shall include such supporting particulars as are
peculiarly within the pleader's knowledge. (4) Sec. 5. Fraud, mistake, condition of the mind.- In
all averments of fraud or mistake, the
When you file a case against somebody you must have capacity to circumstances constituting fraud or mistake
sue and defendant must have capacity to be sued. must be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a
Q: Is it necessary for me to say that plaintiff has capacity to sue? person may be averred generally. (5a)
And the defendant has capacity to be sued?
A: YES because Section 4 says you must show capacity to sue and Fraud and mistake
be sued. It means that capacity to sue and be sued must be EXAMPLE: In annulment of a contract, fraud is one ground. Suppose
averred with particularity. A general statement of it is not the consent was secured through fraud and plaintiff files a case that the
sufficient. As a matter of fact, that is the first paragraph of a defendant employed fraud in obtaining his consent.
complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a resident
of Davao City…” There is no presumption of capacity or incapacity Q: Is this statement sufficient?
to sue. A: No, because the circumstances constituting fraud or mistake must
be stated with particularity. The complaint must state how the fraud
You may say, “I am suing as guardian of the plaintiff.” That is a was committed. It must be described in detail how the fraud took place.
representative party – to sue and be sued in a representative
capacity. Can you say, “I am suing as a guardian?” NO. Neither can Malice, Intent, knowledge or conditions of the mind
you say, “I am appointed as the guardian.” Q: In the second sentence, why is it that malice, intent, etc. may be
averred generally?
Q: How should it be done? A: A general averment of malice or intent suffices because one cannot
A: “I am the court’s appointed guardian of the plaintiff minor describe or particularize what is in the mind of a party. I cannot describe
having been appointed guardian by the court in this case based on in detail the malice or the knowledge in your mind. I can only say it in
an order.” You have to emphasize that the court appointed you. general terms. This is borne out of human experience.
Fraud on the other hand, is employed openly, by overt acts. How you
Section 4 says, “the legal existence of an organized association of are deceived is not only in the mind. Those are manifested by external
persons that is made a party...” It means that the defendant is a acts. Therefore, one can describe how a fraud was committed by the
corporation existing by virtue of the Philippine Corporation Law. other party.
There is no presumption that you are corporation. That is the
reason why facts showing capacity to sue and be sued, etc. must
be averred with particularity.
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Sec. 6. Judgment. In pleading a judgment or Film Exchange, 58 Phil. 736) It is the very heart and soul of your cause
decision of a domestic or foreign court, judicial of action or defense, not merely an evidence thereof.
or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or So a promissory note to collect an unpaid loan is not only an evidence
decision without setting forth matter showing of your cause of action but is it is the very cause of action or foundation
jurisdiction to render it. (6) of your cause of action. On the other hand, when I have a receipt, the
In pleading a judgment or decision of a receipt is not only evidence of your defense but is the very foundation
domestic or foreign court, judicial or quasi- of your defense. If I would like to sue you to annul a written contract,
judicial tribunal, or of a board or officer, it is the contract to be rescinded or annulled is the very cause of your action.
sufficient to aver the judgment or decision
without setting forth matter showing But in a collection case, if aside from promissory note I wrote you
jurisdiction to render it. An authenticated several letters of demand to pay, such letters, while they are relevant
copy of the judgment or decision shall be to the collection case, do not serve as the foundation of your cause of
attached to the pleading. action, although they are also important.
Q: If the basis of your defense is ana actionable document, how will you
Sometimes a party invokes a judgment of a court or cite a previous allege?
case like res adjudicata to dismiss a case. A: allege contents of documents then attach it to the pleading
Q: Suppose you will ask the court to dismiss the case because Q: If defendant will present an actionable document
there was already judgment rendered by the court years ago and A: File an answer
you simply say, “There was a previous judgment.” Is this
sufficient? Sec. 8. How to contest such documents. When an
A: YES because the law presumes that the judgment is valid. And action or defense is founded upon a written
the presumption is that the court had jurisdiction. You do not have instrument, copied in or attached to the
to say that the court had jurisdiction over the subject matter, corresponding pleading as provided in the
issues, etc. when it tried the case years ago. So, it can be averred preceding section, the genuineness and due
generally. execution of the instrument shall be deemed
admitted unless the adverse party, under oath,
SUMMARY: specifically denies them, and sets forth what he
Q: What averment or allegations in pleadings may be done or she claims to be the facts; but the requirement
GENERALLY? of an oath does not apply when the adverse party
A: The following: does not appear to be a party to the instrument
1.) Rule 8, Section 3– Conditions precedent; or when compliance with an order for an
2.) Rule 8, Section 5, 2nd sentence – Conditions of inspection of the original instrument is refused.
the mind; (8a)
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act Q: What is the obligation of defendant if there is an actionable
document?
Q: What averments must be done with PARTICULARITY? A: Deny under oath the due execution and genuiness
A: The following:
1.) Rule 8, Section 4, first sentence – Capacity to sue Q: Does every pleading have to be under oath?
and be sued; A: GENERAL RULE: NO.
2.) Rule 8, Section 4, 2nd sentence – Legal existence EXCEPTION: Except when the law requires it. Example: Section 8, Rule
ofany party to sue or be sued; 8. THIS IS IMPORTANT
3.) Rule 8, Section 5, first sentence – Fraud or mistake EXAMPLE: If the plaintiff sues you based on a promissory note which is
properly pleaded under Section 7 and you would like to contest the
*ACTIONABLE DOCUMENTS genuineness and due execution of the note like when the figure was
altered to P20,000 instead of P1,000 only, so there is falsification, then
Sec. 7. Action or defense based on document.
you must deny the genuiness and due execution in your answer
Whenever an action or defense is based
specifically and most importantly your answer must be VERIFIED AND
upona written instrument or document, the
UNDER OATH.
substance of such instrument or document
shall be set forth in the pleading, and the
To contest:
original or a copy thereof shall be attached
(a) You must specifically deny the genuineness and due
tothe pleading as an exhibit, which shall be
execution of the document under oath; and
deemed to be a part of the pleading, or said
(b) You set forth what you claim to be the facts.
copy may with like effect be set forth in the
pleading. (7)
Not every document that is needed in trial is actionable document. Q: When you say “you have admitted the genuiness and due execution
of the document,” what are the specific facts that you have deemed
Q: What is an actionable document? admitted?
A: An ACTIONABLE DOCUMENT is one which is the basis or the A: The answer is found in the landmark case of HIBBERD vs. RHODE (32
foundation of the cause of action or defense and not merely an Phil. 476):
evidence of the cause of action or defense. (Araneta, Inc. vs. Lyric
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1.) The party whose signature it bears signed it; 7.) estoppel;
8.) duress;
2.) If signed by another, it was signed for him and with his
9.) minority; and
authority;
10.) imbecility
3.) At the time it was signed, it was in words and figures
11.) usury
exactly as set out in the pleading of the party relying upon it;
12.) statute of frauds
4.) The document was delivered; and
13.) prescription
5.) The formal requisites of law, such as seal,
acknowledgement (notarization) or revenue stamp 14.) release
15.) waiver
which it lacks, are waived by it.
16.) former discharge in bankruptcy
The SC said in HIBBERD that if you admit the genuineness and due
REPLY; GENERAL RULE: OPTIONAL;
execution of the actionable document, defenses which are
EXCEPTION: SECTION 8
inconsistent with genuineness and due execution are deemed
automatically waived. Meaning, any defense which denies the
Normally, the person who is presenting the actionable document is
genuineness or due execution of the document is deemed
the plaintiff.
automatically waived.
PROBLEM: But suppose it is the defendant who is invoking an
Q: What are the defenses which are no longer allowed once you
actionable document for his defense. He claims to have paid the loan
admit the genuineness and due execution of the actionable
and have attached a copy of the RECEIPT to his answer. The plaintiff
document?
looks at the document and realizes that his signature in the receipt is
A: The following:
forged.
1.) The signature appearing in the document is a
forgery;
Q: What should the plaintiff do?
2.) In case it was signed by an agent in behalf of the
1.) Where the pleader presented witnesses to prove
corporation or partnership, or a principal, the
genuiness and due execution and the adversary
signature was unauthorized;
proved, without objection, the contrary. (Yu Chuck vs.
3.) The corporation was not authorized under its
Kong Li Po, 46 Phil. 608);
charter to sign the instrument;
2.) Where the pleader fails to object to evidence
4.) The party charged signed it in some other capacity
controverting the due execution. (Legarda Koh vs.
than that alleged in the pleading; and
Ongsiaco, 36 Phil. 185)
5.) It was never delivered. (Hibberd vs. Rhode, supra)
In other words, the lawyer of the defendant does not remember
6.) The document was not in words and figures as set
Section 8 and therefore the denial is improper. But the lawyer of the
out in the pleadings (Imperial Textile Mills vs. CA
plaintiff did not also remember Section 8 that when there was evidence
183 SCRA 584)
of forgery, he failed to object. So, the incompetence of the both
lawyers cancel each other. That is what happens if the lawyer does not
*What defenses are cut off by the implied admission?
know.
• Forgery of document
A: Based on Section 8, the plaintiff must deny the genuineness of the
• Lack of authority to execute the document
receipt specifically under oath
• The party charged signed the document in some other
capacity than that alleged in the pleading
Q: In what pleading should the plaintiff file where he will deny under
• The document was never delivered
oath the genuiness and due execution of the receipt?
• Document was not in the words and figures as set out in
A: Plaintiff should file a REPLY and it must be under oath. If he will
the pleading
not file a reply, the receipt is impliedly admitted to be genuine.
Q: Does it mean to say that when you admit impliedly the
genuineness and due execution of the actionable document, you Q: But the plaintiff may argue that under Rule 6, Section 10 the filing
have no more defense? of a reply is optional. How do we reconcile it with Section 8?
A: NO. What are no longer available are defenses which are A: Rule 6 is the general rule. Section 8 should prevail over Rule 6
inconsistent with your own admission of the genuineness and due because the former is a specific provision that applies only to
execution of the actionable document like forgery, because you actionable document. It has been asked in the Bar:
cannot admit that the document is genuine and at the same time
allege that it is forged. According to the SC in HIBBERD, you may still Q: When is the filing of the reply compulsory?
invoke defenses provided the defenses are NOT inconsistent with
your admission of the authenticity of the document. A: When the defendant anchors his defense on an actionable
document and plaintiff will deny the genuineness and due execution of
Q: What defenses may be interposed notwithstanding admission of such document.
genuiness and due execution of an actionable document as
aforesaid? SPECIFIC DENIAL
A: In the case of HIBBERD, the following:
1.) payment; Sec. 5. Defenses. - Defenses may either be
2.) want or illegality of consideration; negative or affirmative.
3.) fraud; a. A negative defense is the specific denial of
4.) mistake; the material fact or facts alleged inthe
5.) compromise; pleading of the claimant essential to his
6.) statute of limitation; cause or causes of action.
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Amilhamja, Adj.
In an answer, defenses may either be negative or affirmative. What is a negative pregnant?

—Negative pregnant is not a specific denial. It is an
Q: Define negative defense. admission.
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant —It is a negative implying also an affirmative and which,
denies the statement in the complaint by stating the facts and the although stated in a negative form, really admits the
reason/s on which his denial is based. allegations to which it relates (Black’s Law Dictionary).
—It is a form of negative expression which carries with it an
Sec. 9. Official document or act. In pleading affirmation or at least an implication of some kind favorable
an official document or official act, it is to the adverse party (Valdez vs. Dabon, Jr., A.C. No. 7353,
sufficient to aver that the document was November 16, 2015).
issued or the act done was in compliance
with law. (9) Matters not deemed admitted by the failure to make a specific
denial:
Q: How is a specific denial done? a) The amount of unliquidated damages (Sec.11);
A: Rule 8, Section 10: b) Conclusions in a pleading which do not have to be denied
at all because only ultimate facts need be alleged in a
Sec. 10. Specific denial. A defendant must pleading (Sec. 1 R 8);
specify each material allegation of fact the c) Non-material averments or allegations are not deemed
truth of which he or she does not admit and, admitted because only material allegations have to be
whenever practicable, shall set forth the denied. (Sec. 11)
substance of the matters upon which he or she
relies to support his or her denial. Where a Sec. 11- Allegations not specifically denied
defendant desires to deny only a part of an deemed admitter. – Material averments in a
averment, he or she shall specify so much of it pleas]ding asserting a claim or claims, other than
as is true and material and shall deny only the those as to the amount of unliquidated damages,
remainder. Where a defendant is without shall be deemed admitted when not specifically
knowledge or information sufficient to form a denied.
belief as to the truth of a material averment
made to the complaint, he or she shall so *Focus of this
state, and this shall have the effect of a denial.
Sec. 12 – Affirmative defenses
Purpose of specific denial (a) A defendant shall raise his or her
The purpose is to make the defendant disclose the matters affirmative defenses in his or her answer, which
alleged in the complaint which he succinctly intends to shall be limited to the reasons set forth under
disprove at the trial, together with the matter which he Section 5(b), Rule 6 and the ff: grounds:
relied upon to support the denial. The parties are (1) That the court has no jurisdiction over the
compelled to lay their cards on the table (Aquintey vs. person of the party
Tibong, GR No. 166704, December 20, 2006) (2) That the venue is improperly laid
(3) That the plaintiff has no legal capacity to
Manner of denying an allegation = remember 3 ways? sue
1. By specifically denying the allegation and setting forth (4) That the pleading ascerting the claim
the substance upon which one relies his denial. states no cause of action
2. By specifically denying some part of the allegation and (5) That the condition precedent for filing the
admitting the rest. claim has not been complied with
3. By specifically denying the allegation for lack of
knowledge sufficient to form a belief as to the truth or (b) Failure to raise the affirmative defenses
falsity of the allegation. at the earliest opportunity shall constitute a
waiver thereof
Effect of failure to deny specifically (c) The court shall moto proprio resolve the
—Material averment in the complaint, other than those above affirmative defenses within thirty (30)
as to the amount of unliquidated damages, shall be calendar days from filing of the answer
deemed admitted when not specifically denied. (d) As to the other affirmative defenses
Allegations of usury in a complaint to recover usurious under the first paragraph of Section 5(b), Rule 6,
interest are deemed admitted if not denied under oath the court may conduct a summary hearing within
(Section 11, Rule 8). fifteen (15) calendar days from the filing of the
answer. Such affirmative defenses shall be
Please take NOTE: resolved by the court within thirty (30) calendar
-3rd way: denial by lack of knowledge- make sure na wala days from the termination of the summary
talagang alam hearing.
—When the defendant alleges having no knowledge or (e) Affirmative defenses, if denied, shall not
information sufficient to form a belief as to the truth of be the subject of a motion for reconsideration or
the allegations of the other party but such matters are petition for certiotari, prohibition or mandamus,
plainly and necessarily within defendant’s knowledge, a but may be among the matters to be raised on
claim of “ignorance or lack of information” will not be appeal after a judgment on the merits.
considered a specific denial, hence, implied admission
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Amilhamja, Adj.
Section 12, Rule 8 of the 2019 Amendments substantially changed

the concept of affirmative defense. Under the new rule, affirmative Sec. 13 Striking out of pleading or matter
defenses are not limited to those matters stated in Section 5 (b), contained therein. Upon motion made by a party
Rule 6. Affirmative defenses must now include the different grounds before responding to a pleading or, if no
for a motion to dismiss under Section 1, Rule 16 of the old Rules. responsive pleading is permitted by these Rules,
upon motion made by a party within twenty (20)
This should be read in conjunction with Section 5, Rule. calendar days after the service of the pleading
upon him or her, or upon the court's own
With respect to affirmative defenses Section 5 (b), Rule 6, the Court initiative at any time, the court may order any
shall resolve the same within thirty (30) calendar days from the pleading to be stricken out or that any sham or
termination of the summary hearing. false, redundant, immaterial, impertinent, or
Hearing, therefore, may be required by the court which must be scandalous matter be stricken out therefrom. (5,
summary. R9)
(c) The court shall moto proprio resolve the above affirmative Before answering, the defendant can file a motion to strike out a
defenses within thirty (30) calendar days from filing of the answer pleading or a portion of a pleading. Striking a pleading means that the
-means no more hearing necessary and base only on pleading pleading will be deemed erased as if it was never filed. Or if a portion
of the pleading be ordered stricken out or expunged where a pleading
Is summary hearing necessary? or a portion thereof is sham or false, redundant, immaterial,
-It depends on the ground used impertinent, or a scandalous matter is inserted in the pleading, is
-If for Rule 6 (Sec. 5 b)- Yes deemed erased. This is related to Rule 7, Section 3, third paragraph:
-If for Rule 8 (Sec. 12)- No
RULE 7, Sec. 3. Signature and address. x x x x
-What are the other grounds which must be alleged as affirmative
An unsigned pleading produces no legal effect.
defenses?
However, the court may, in its discretion,
1. That the court has no jurisdiction over the person of the
allow such deficiency to be remedied if it shall
defending party;
appear that the same was due to mere
2. That the venue is improperly laid;
inadvertence and not intended for delay.
3. That the plaintiff has no legal capacity to sue;
Counsel who deliberately files an unsigned
4. That the pleasing asserting the claim states no cause of
pleading, or signs a pleading in violation of this
action; and
Rule, or alleges scandalous or indecent matter
5. That the condition precedent for filing the claim has not been
therein, or fails to promptly report to the court
copied with.
a change of his address, shall be subject to
appropriate disciplinary action.
What is the effect of failure to plead those grounds as affirmative
defenses?
So, if your pleading contains scandalous or indecent matters, the
—Failure to raise the affirmative defenses at the earliest opportunity
lawyer who files it may be subjected to appropriate disciplinary
shall constitute a waiver thereof (Section 12, Rule 8).
actions.
What should be the action of the court on the affirmative
Q: What if it is the reply is the one which contains scandalous
defenses?
matter?
— The court shall motu proprio resolve the affirmative defenses
A: A motion to strike may still be filed by the defendant within 20
under Section 12 within thirty (30) calendar days from the filing of
days after the reply.
the answer. (Section 12, Rule 8). It is not necessary for the Court to
conduct a hearing before it can resolve these grounds.
PLEASE TAKE NOTE:

—With respect to affirmative defenses Section 5 (b), Rule 6, the
Court shall resolve the same within thirty (30) calendar days from
the termination of the summary hearing.
—Hearing, therefore, may be required by the court which must be
summary.
—Affirmative defenses, if denied, shall not be the subject of a
motion for reconsideration or petition for certiorari, prohibition or
mandamus , but may be among the matters to be raised in appeal
after a judgement on the merits.
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Rule 9 available unless the prior action is of such a character that, had a
judgment been rendered therein on the merits, such a judgment
would be conclusive between the parties and could be pleaded in bar
EFFECT OF FAILURE TO PLEAD
of the second action. The rule is applicable, between the same
Section 1. Defenses and objections not pleaded. parties, only when the judgment to be rendered in the action first
Defenses and objections not pleaded either in instituted will be such that, regardless of what party is successful, it
a motion to dismiss or in the answer are will amount to res judicator against the second action (Hongkong
deemed waived. However, when it appears Shanghai Bank v. Aldecoa and Co., GR No. 8437, March 23, 1915).
from the pleadings or the evidence on record
that the court has no jurisdiction over the RES JUDICATA – There was already a prior final judgment then you
subject matter, that there is another action file another case regarding the same issue. That is also splitting a
pending between the same parties for the cause of action.
same cause, or that the action is barred by a
prior judgment or by statute of limitations, the PRESCRIPTION is not found in the old rule but is taken from decided
court shall dismiss the claim. cases. Among which are the cases of
GENERAL RULE: Defenses or objections not pleaded in a motion to Sec. 2. Compulsory counterclaim, or cross- claim,
dismiss or on answer are deemed waived. If you do not plead your not set up barred. A compulsory counterclaim, or
defense, the same is deemed waived. The court has no jurisdiction a cross-claim, not set up shall be barred. (4a)
over the issues.
What is the effect if compulsory and cross-claim are not set-up?
EXCEPTIONS: -Rule 9 Sec 2
Q: What defenses or objections can be taken cognizance of by the -Barred
court despite the fact that they are not raised in the motion to This section should be read in conjunction with Section 7, Rule 6 which
dismiss or answer? provides that “a compulsory counterclaim not raised in the same action
A: Under Section 1, Rule 9, the following: is barred, unless otherwise allowed by these Rules.”
1.) That the court has no jurisdiction over the subject
matter; RULE ON DEFAULT
2.) That there is another action pending between the
same parties for the same cause (litis pendentia); Sec. 3. Default; declaration of. If the defending
3.) That the action is barred by prior judgment (res party fails to answer within the time allowed
judicata); and therefor, the court shall, upon motion of the
4.) That the action is barred by statute of limitation claiming party with notice to the defending
(prescription). party, and proof of such failure, declare the
defending party in default. Thereupon, the court
Take note that the exceptions can be raised at any time during or shall proceed to render judgment granting the
after the trial, or even for the first time on appeal. In other words, claimant such relief as his or her pleading may
the court shall dismiss the claim if any of the foregoing grounds warrant, unless the court in its discretion
appears from the pleadings or the evidence on record. requires the claimant to submit evidence. Such
reception of evidence may be delegated to the
These defenses may be raised at any stage of the proceedings
clerk of court. (1a, R18)
even for the first time on appeal EXCEPT that lack of jurisdiction
(a) Effect of order of default. — A party in default
over the subject matter may be barred by laches (Tijam vs.
Sibonghanoy GR No. L-21450, April 15, 1968). shall be entitled to notice of subsequent
proceedings but shall not to take part in the trial.
(b) Relief from order of default. — A party
Now, the traditional rule to remember notwithstanding the
declared in default may at any time after notice
SIBONGHANOY Doctrine, is that, when there is a defect in the
thereof and before judgment file a motion under
jurisdiction of the court over the subject matter, the defect can be
oath to set aside the order of default upon
raised at any stage of the proceeding even for the first time on
appeal (Roxas vs. Raferty, 37 Phil. 957). This is because proper showing that his or her failure to answer
was due to fraud, accident, mistake or excusable
everything is null and void. Jurisdiction over the subject matter
negligence and that he or she has a meritorious
cannot be conferred by agreement between the parties, by
defense. In such case, the order of default may
WAIVER, by silence of the defendant.
be set aside on such terms and conditions as the
judge may impose in the interest of justice.
LITIS PENDENTIA. You file another case while another action is
(c) Effect of partial default. — When a pleading
pending between the same parties for the same cause. That is
asserting a claim states a common cause of
actually splitting a cause of action because there is already an
action against several defending parties, some of
action and then you file another action. The action can be
whom answer and the others fail to do so, the
dismissed on the ground that there is a pending action.
court shall try the case against all upon the
answers thus filed and render judgment upon the
A pending action to annul a mortgage is not a bar to an action for
evidence presented.
foreclosure of the same mortgage for the reason that, although
(d) Extent of relief to be awarded. — A judgment
the parties are or may be the same, the rights asserted and the
rendered against a party in default shall not
relief prayed for in the two actions are dissimilar.
exceed the amount or be different in kind from
that prayed for nor award unliquidated damages.
A plea of the pendency of a prior action (litis pendencia) is not
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Amilhamja, Adj.
(e) Where no defaults allowed. — If the A: NO! Cause of action vs. defendant is common
defending party in an action for annulment or
declaration of nullity of marriage or for legal What should the court do if some of the defendant files answer and
separation fails to answer, the court shall others do not and the complaint asserts common cause of action
order the Solicitor General or his or her against all the defendants?
deputized public prosecutor to investigate —When a pleading asserting a claim states a common cause of action
whether or not a collusion between the against several defending parties, some of whom answer and the
parties exists, and if there is no collusion, to others fail to do so, the court shall try the case against all upon the
intervene for the State in order to see to it that answers thus filed and render judgment upon the evidence presented
the evidence submitted is not fabricated. (Sec. 3(c), Rule 9).
Answer was filed beyond the reglamentary period but before

DEFAULT declaration of default
— If the defending party fails to answer within the time allowed -Liberal approach
therefor, the court shall, upon motion of the claiming party with -Where the answer is filed beyond the reglementary period but before
notice to the defending party, and proof of such failure, declare the the defendant is declared in default and there is no showing that
defending party in default. Thereupon, the court shall proceed to defendant intends to delay the case, the answer should be admitted
render judgment granting the claimant such relief as his pleading (San Pedro Cineflex Properties, Inc. vs. Heirs of Manuel Humada Erano,
may warrant, unless the court in its discretion requires the claimant 635 SCRA 421, 424-425).
to submit evidence. Such reception of evidence may be delegated to — The Court can still admit the answer even if it was filed out of time
the clerk of court (Section 3, Rule 9). because, at the time of filing, defendant were not yet declared in
default nor was a motion to declare them in default ever filed (Sablas
Requisites before a party may be declared in default: vs. Sablas, 526 SCRA 292, 297).
1. The Court must have acquired jurisdiction over the
person of the defendant thru a valid service of Remedies of defending party declared in default
summons or voluntary appearance; • Remedy after notice of order of default but before judgment-
2. The defending party must have failed to file his answer File a motion under oath to set aside the order of default upon proper
within the reglementary period or within the period showing that his failure to answer was due to [FAME] fraud, accident,
fixed by the court; mistake or excusable negligence and that he has a meritorious defense.
3. there must be a motion to declare the defendant in • Remedy after judgment and before judgment becomes final and
default; executory- File a motion for new trial under Rule 37 or appeal the
4. The defending party must be notified of the motion to judgment if contrary to evidence or law
declare him in default (Sec. 3 R 9) • Remedy after judgment becomes final and executory- File
5. There must be a hearing of the motion to declare the petition for Relief under Rule 38
defendant in default; and
6. There must be proof of such failure to answer. May a party be declared in default for other reason?
— YES.
Where no defaults are allowed: —If a disobedient party refuses to obey an order requiring him to
1. Annulment of marriage; comply with various modes of discovery (Sec. 3 (c), Rule 29).
2. Declaration of nullity of marriage; —If a party or officer or managing agent of party fails to appear before
3. Legal Separation; the officer who is to take his deposition, or a party fails to serve answer
to interrogatories (Sec. 5, Rule 29).
Requisites before a defending party may be declared in default?
1. Jurisdiction over the person
2. Filing of motion
3. —Proof that defending party failed to answer within the
period
4. Must be notified of the motion
5. There must be hearing
—(see: Spouses de los Santos vs. Carpio, 501 SCRA 390, 399-400)
What is the effect of declaration of default?

— A party in default shall be entitled to notice of subsequent
proceedings, but not to take part in the trial (Sec. 3(a), Rule 9).
— Allow the plaintiff to present evidence ex-parte.
—Court shall render judgment granting the claimant such relief as
his pleading may warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of evidence may be
delegated to the clerk of court. (Sec. 3, Rule 9).
-Judgment of the Court is limited to what is prayed for
—A judgment rendered against a party in default shall not exceed
the amount or be different in kind from that prayed for nor award
unliquidated damages (Sec. 3(d), Rule 9).
Q: Should you declare the non-answering defendant in default?
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Rule 10 The opposite party has no right to oppose the amendment. If the
court refuses to admit the amended pleading such refusal is
AMENDED AND SUPPLEMENTAL PLEADINGS correctible by mandamus.
Part I. AMENDMENTS AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply
means that the court may or may not allow the amendment. So,
Sec. 1. Amendments in general. - Pleadings may
the other party has the right to oppose. This is also known as
be amended by adding or striking out an
amendment by leave of court.
allegation or the name of any party, or by
correcting a mistake in the name of a party or
a mistaken or inadequate allegation or AMENDMENT AS A MATTER OF RIGHT
description in any other respect, so that the
Sec. 2. Amendments as a matter of right. - A
actual merits of the controversy may speedily
be determined, without regard to party may amend his pleading once as a
technicalities, and in the most expeditious and matter of right at any time before a responsive
inexpensive manner. (1) pleading is served or, in the case of a reply, at
any time within ten (10) calendar days after it
is served. (2a)
Pleadings may be amended by:
1) adding an allegation of a party
2) adding the name or substituting a party When is amendment a matter of right?
3) striking out an allegation of a party; —A party may amend his pleading once as a matter of right at any
4) striking out the name of a party; time before a responsive pleading is served or, in the case of a reply,
5) correcting a mistake in the name of a party; and at any time within ten (10) calendar days after it is served (Section 2,
6) correcting a mistake or inadequate allegation or Rule 10).
description in any other respect.
May the complaint be amended as a matter of right after a Motion
So you can amend by removing something, adding something, or to Dismiss is served?
changing something by substituting another word. You can amend — YES.
by removing an entire paragraph, an entire sentence, a phrase, or a —Because a Motion to dismiss is not a responsive pleading (i.e.
word. As a matter of fact, before reaching Rule 10, there are Answer is a responsive pleading) and its filing does not preclude the
provisions where amendments have already been touched upon, exercise of the plaintiff’s right to amend his complaint (Alpine Lending
one of which is Rule 1, Section 5: Investor vs. Corpuz, 508 SCRA 45, 48-49; Republic vs. Ilao, 4 SCRA 106;
Remington Industrial Sales vs. CA, 382 SCRA 499, 506)
Sec. 5. Commencement of action.- A civil action
is commenced by the filing of the original If the motion to dismiss is granted, may a complaint be amended as
complaint in court. If an additional defendant a matter of right?
is impleaded in a later pleading, the action is — YES.
commenced with regard to him on the date of —Provided the Order of dismissal is not yet final and executory
the filing of such later pleading, irrespective (Bautista vs. Maya-Maya Cottages, 476 SCR A 416, 419).
of whether the motion for its admission, if
necessary, is denied by the court. May amendment be made to correct the jurisdictional defect before
responsive pleading is filed?
— YES.
TYPES OF AMENDMENTS: — Because amendment is a matter of right.
The following are the important points to remember here: — Please read: Gumabay vs. Baralin, 77 SCRA 258.
—A complaint was filed for forcible entry before the RTC. Defendant
FIRST, there are two types of amendment of pleadings under the filed a motion to dismiss for lack of jurisdiction. Plaintiff amended his
rules: compliant and transformed it into quieting of title. The SC ruled that it
1) An amendment as a matter of right; or may be allowed because amendment is a matter of right. Prior to
2) An amendment as a matter of judicial filing of a responsive pleading.
discretion
Rule applicable before the trial court not on appeal
SECOND, an amendment could be Section 2 refers to an amendment made before the trial court, not
1) a formal amendment; or to amendments before the Court of Appeals. The CA is vested with
2) a substantial amendment jurisdiction to admit or deny amended petitions filed before it (Navarro
vs. Vda. De Taroma, 478 SCRA 336).
These are the same classification under the Rules on Criminal
Procedure under Rule 110. Q: How about if you want to amend your reply? You cannot say before
a responsive pleading is served because there is no more responsive
Amendment as a MATTER OF RIGHT; and Amendment as a pleading to the reply.
MATTER OF JUDICIAL DISCRETION A: So under Section 2, the plaintiff can amend his reply at any time
within ten (10) days after it is served.
AMENDMENT AS A MATTER OF RIGHT simply means that the
party has the unconditional action or right to amend his Before the service of a responsive pleading, a party has the absolute
pleading. The court has no right to prevent him from amending. right to amend his pleading, regardless of whether a new cause of
action or change in the theory is introduced (Bautista vs. Maya-Maya
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Amilhamja, Adj.
Cottages, Inc. 476 SCRA 416). *However, leave of court shall be denied if the motion was
made
Applicability of Mandamus 1) with the intent to delay;
The court would be in error if it refuses to admit an amendedpleading 2) confer jurisdiction on the court;
when its exercise is a matter of right. This error is correctible by 3) or the pleading stated no cause of action from the
mandamus (Breslin vs. Luzon Stevedoring 84 Phil. 618; Ong Peng vs. beginning which could be amended.
Custodio 1 SCRA 780) because the trial court’s duty to admit an
amended complaint made as a matter of right is purely ministerial Leave of court shall be denied if the purpose of amendment is
(Alpine Lending Investors vs. Corpuz 508 SCRA 45). to confer jurisdiction after the responsive pleading is filed.
• Complaint cannot be amended to confer jurisdiction on the
Q: Is there any other instance when amendment is a matter of right court in which it was filed, if the cause of action originally set
even if there is already an answer or even in the middle of the trial? forth was not within the court’s jurisdiction (Campos Rueda
A: Yes, there is a second instance, when the amendment is FORMAL Corp. vs. Baustista, 6 SCRA 240, 244).
IN NATURE as found in Section 4: • This is because the court must first acquire jurisdiction over
the subject matter in order to act validly on the same including
Sec. 4. Formal amendments. - A defect in the its amendment (Gaspar vs. Dorado, 15 SCRA 331, 334).
designation of the parties and other clearly
clerical or typographical errors may be Q: When is an amendment a matter of judicial discretion?
summarily corrected by the court at any stage A: 1. If the amendment must be substantial; and
of the action, at its initiative or on motion, 2. The adverse party has already filed and served a copy of his
provided no prejudice is causedthereby to the responsive pleading.
adverse party. (4)
The plaintiff, for example, cannot amend his complaint by changinghis
When the amendment is fairly formal, it can be done anytime. As cause of action or adding a new one without leave of court (Calo and
amatter of fact, it can be summarily corrected by the court at any San Jose vs. Roldan 756 Phil 445; Buenaventura vs. Buenaventura 94
stage of the action, upon motion or even without motion because Phil. 193)
anyway that is a harmless correction.
Q: Assuming that the amendment is a matter of judicial discretion,
NOTE: Change of amount of damages is only formal because how should the court resolve it?
thereis no change in the cause of action. A: Based on established jurisprudence, the court should always allow
the amendment because of the liberal policy of the rules.
SUMMARY: Amendment as a matter of right: Amendments of pleadings should be liberally allowed in order that
1) Before an answer is filed (Complaint); the real merits of the case can be ventilated in court without regard
2) Before a reply is filed or before the period for filing to technicalities. So, the court will always lean on allowing a pleading
areply expires (Answer); to be amended. That is the liberal policy.
3) Any time within 10 days after it is served (Reply); and
4) Formal amendment May amendment be made to correct the jurisdictional defect after
responsive pleading is filed?
Even if the motion to dismiss is granted by the court, the plaintiff — NO.
may still amend his complaint as a matter of right before the — Complaint cannot be amended to confer jurisdiction on the court
dismissal becomes final as long as no answer has yet been in which it was filed, if the cause of action originally set forth was not
served. (Bautista vs. Maya-Maya Cottages Inc. [supra]). within the court’s jurisdiction (Campos Rueda Corp. vs. Baustista, 6
SCRA 240, 244).
— This is because the court must first acquire jurisdiction over the
subject matter in order to act validly on the same including its
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
amendment (Gaspar vs. Dorado, 15 SCRA 331, 334)
Sec. 3. Amendments by leave of court. - Except
as provided in the next preceding Section, Sec. 5. No amendment necessary to conform to or
substantial amendments may be made only authorize presentation of evidence. — When
upon leave of court. But such leave shall be issues not raised by the pleadings are tried with
refused if it appears to the court that the the express or implied consent of the parties,
motion was made with intent to delay or they shall be treated in all respects as if they had
confer jurisdiction on the court, or the been raised in the pleadings. No amendment of
pleading stated no cause of action from the such pleadings deemed amended is necessary to
beginning which could be amended. Orders of cause them to conform to the evidence. (5a)
the court upon the matters provided in this
Section shall be made upon motion filed in Section 5 of the new Rules does not anymore require amendment of
court, and after notice to the adverse party, the pleading to conform to evidence when issues not raised by the
and an opportunity to be heard. (3a) pleadings are tried with the express or implied consent of the parties.
This is because the new issues shall be treated in all respects as if they
Section 3 of the 2019 Amendments emphasizes that if had been raised in the pleadings. When issues not raised in the
respondent pleading has already been filed, substantial pleadings are tried with the express or implied consent of the parties-
amendment may be made only by leave of court. 1. they shall be treated as if raised in the pleadings;
2. pleadings may be amended to conform to the evidence; and
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Amilhamja, Adj.
3. failure to amend does not affect the result of the trial of

these issues. The second part of Rule 10 is on supplemental pleadings
Problem A supplemental pleading is one which avers facts occurring after the
—Debtor executed 3 PN’s in favour of the Creditor. One of the PN’s filing of the original pleadings and which are material to the matured
became due and demandable. Thus, debtor not paying the PN, claims and/or defenses therein alleged. (Herrera vol. 1 p. 603)
creditor filed a collection suit against the debtor. While the case is
pending, the other PNs became due and demandable also. The Supplemental Pleading
Creditor included the last two PN as evidences in the case pending. —Supplemental pleading is one which forth transactions, occurrences
It was introduced without the objection of the Debtor? or events which have happened since the date of the pleading sought
—Can the Court render judgment on the last two PNs? to be supplemented (Sec. 6, Rule 10).
— NO.
—Section 5 thereof applies to situations wherein evidence not Please take NOTE:
within the issues raised in the pleadings is presented by the parties —When the cause of action in the supplemental complaint is different
during the trial, and to conform to such evidence the pleadings are from the cause of action mentioned in the original complaint, the
subsequently amended on motion of a party. Thus, a complaint court should not admit the supplemental complaint (APT vs. CA, 324
which fails to state a cause of action may be cured by evidence SCRA 533). Its usual office is to set up new facts which justify, enlarge
presented during the trial. However, the curing effect under Section or change the kind of relief with respect to the same subject matter as
5 is applicable only if a cause of action in fact exists at the time the the controversy referred to in the original complaint (Chan vs. Cahn,
complaint is filed, but the complaint is defective for failure to allege 569 SCRA 106).
the essential facts (Swagman Hotels and Travel vs. CA, 455 SCRA
175). Effect of Failure to Plead:
What is the effect if objections are not pleaded in the answer
No need to file motion to amend to conform to evidence defenses or motion to dismiss?
—When issues not raised by the pleadings are tried with the express -They are deemed waived.
or implied consent of the parties, they shall be treated in all respects -Exceptions: (Rule 9 Sec 1)
as if they had been raised in the pleadings. No amendment of such 1. Lack of jurisdiction over the subject matter
pleadings deemed amended is necessary to cause them to conform 2. Litis pendencia
to the evidence (Section 5, Rule 10). 3. Res judicata
4. Prescription
Q: May issues not raised in the pleadings be tried in court during the
trial? What is the effect if compulsory and cross-claim are not set-up?
A: As a GENERAL RULE, a defendant during the trial is not allowed to -Rule 9 Sec 2
prove a defense that is not raised in the pleadings based on Rule 9, -Barred- res judicata will apply
Section 1. The court has no jurisdiction over the issue. That’s why
there is no such thing as surprise defense because a defense that is DEFAULT- 30 days
not raised is deemed waived. — If the defending party fails to answer within the time allowed
therefor, the court shall, upon motion of the claiming party with
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be notice to the defending party, and proof of such failure, declare the
relaxed? defending party in default. Thereupon, the court shall proceed to
A: YES. Section 5 is a relaxation of the rule specifically the first render judgment granting the claimant such relief as his pleading may
sentence: “when issues not raised in the pleadings are tried with warrant, unless the court in its discretion requires the claimant to
the express or implied consent of the parties, they shall be treated submit evidence. Such reception of evidence may be delegated to the
in all respects as if they had been raised in the pleadings.” clerk of court (Section 3, Rule 9).
THIRD DISTINCTION: Cause of action in supplemental pleadings

The filing of an AMENDED pleading could be a matter of right The cause of action stated in the supplemental complaint must be
or of judicial discretion under Sections 2 and 3; whereas the same as that stated in the original complaint. Otherwise, the
The filing of a SUPPLEMENTAL pleading is always a matter of court should not admit the supplemental complaint (Asset
judicial discretion under Section 6. There is always leave of Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)
court. When the cause of action in the supplemental complaint is different
from the cause of action mentioned in the original complaint, the court
Part II. SUPPLEMENTAL PLEADINGS should not admit the supplemental complaint (Asset Privatization Trust
vs. CA 324 SCRA 533).
Sec. 6. Supplemental pleadings. - Upon
motion of a party the court may, upon As its very name denotes, a supplemental pleading only serves to
reasonable notice and upon such terms as bolster or add something to the primary pleading. A supplemental
are just, permit him or her to serve a pleading exists side by side with the original. It does not replace that
supplemental pleading setting forth which it supplements. Moreover, a supplemental pleading assumes
transactions, occurrences or events which that the original pleading is to stand and that the issues joined with the
have happened since the date of the original pleading remained an issue to be tried in the action. It is but a
pleading sought to be supplemented. The continuation of the complaint. Its usual office is to set up new facts
adverse party may plead thereto within ten which justify, enlarge or change the kind of relief with respect to the
(10) calendar days from notice of the order same subject matter as the controversy referred to in the original
admitting the supplemental pleading. (6a)
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Amilhamja, Adj.
complaint.
SECOND DISTINCTION: As to effect
Answer to a supplemental pleading; not mandatory In an AMENDED pleading, the amended pleading
“Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are supersedes the original pleading. The original pleading is
relevant, thus: deemed erased. The amended substitutes the original. So
Sec. 6. Supplemental pleadings. – xxxxx The adverse from the viewpoint of the law, the original pleading no
party may plead thereto within ten (10) days from notice longer exists. Whereas,
of the order admitting the supplemental pleading. When a SUPPLEMENTAL pleading is filed, it does not
supersede the original pleading. In effect, there are now
Sec. 7. Answer to supplemental complaint. – xxxx The two (2) pleadings which stand side by side in the case –
answer to the complaint shall serve as the answer tothe the original and the supplemental pleadings.
supplemental complaint if no new or supplemental EXAMPLE: Mortz borrowed from Nanding P200,000
answer is filed. payable in 2 yearly installments. Mortz failed to pay the
first installment. Nanding filed a case. While the case is
“As can be gleaned from the above provisions, the filing of ananswer pending, the other installment became due. Nanding will
to the supplemental pleading is not mandatory because of the use now file a supplemental pleading and as a result, there
of the word “may”. This is bolstered by the express provision of the will be two (2) complaints for P100,000 each.
Rules that the answer to the original pleading shall serve as the
answer to the supplemental pleading if no new or supplemental Section 8. Effect of amended pleadings. - Anamended
answer is filed. Thus, the court cannot declare the respondent in pleading supersedes the pleading that it amends.
default simply because the latter opted not to file their answer to However, admissions in superseded pleadings may be
the supplemental petition (Chan vs. Chan GR 150746, October 15, offered in evidence against the pleader; and claims
2008). and defenses alleged therein not incorporated in the
amended pleading shall be deemed waived.
Q: How do you distinguish an AMENDED pleading from a
SUPPLEMENTAL pleading? What is the effect of amendment?
A: Of course, the similarity between the two is the existence of —It supersedes the pleading that it amends (Section 8, Rule 10).
ORIGINAL PLEADING. The following are the distinctions: — The admission made in the superseded pleading may be received in
evidence against the pleader (Section 8, Rule 10). It is treated as extra-
FIRST DISTINCTION: As to the allegations
judicial admission (Torres vs. CA, 131 SCRA 24, 35).
An AMENDED pleading contains transactions, occurrences
or events which already happened at the time the original
*Is summons required to be issued after a complaint is amended?
pleading was filed and could have been raised at the original
-it depends
pleading, but which the pleader failed to raise in the original
—If the summons has already been served, there is NO need for the
pleading because, oversight or inadvertence or inexcusable
issuance of another summons because the Court has already acquired
negligence. If he wants to raise it, he must amend the
jurisdiction over the person of the defendant.
pleading. Whereas,
— However, if the complaint was amended prior to the service of
A SUPPLEMENTAL pleading contains transactions,
summons, new summons is needed for the amended complaint (Vlason
occurrences or events which were not in existence at the
vs. Enterprise Corp. vs. CA, 310 SCRA 26, 57-58).
time the original pleading was filed but which only happened
after the filing of the original pleading and therefore, could
That is related to the rule in evidence that what need not be proved:
not have been raised in the original pleading.
judicial notice, judicial admissions.
That is the distinction emphasized in the New Rule – Rule 11,
Effect of Amended Pleading
Sections 9 and 10:
1. An amended pleading supersedes the pleading that it
amends;
Rule 11, Section 9. Counterclaim or cross-claim
2. Admissions in the superseded pleading can still be
arising after answer. – A counterclaim or cross-
received in evidence against the pleader;
claim which either matured or was acquired by a
3. Claims or defenses alleged therein but not incorporated
party after serving his pleading may, with the
or reiterated in the amended pleading are deemed
permission of the court, be presented as a
waived.
counterclaim or cross-claim by supplemental
pleading before Judgment.
Rule 11, Section 10. Omitted counterclaim or
Sec. 7. Filing of amended pleadings. - When any
cross claim. – When a pleader fails to set up a
pleading is amended, a new copy of the entire
counterclaim or a cross-claim through oversight,
pleading, incorporating the amendments, which
inadvertence, or excusable neglect, or when
shall be indicated by appropriate marks, shall be
justice requires, he may, by leave of court, set up
filed. (7)
the counterclaim or cross-claim by amendment
before judgment.
When a party files an amended pleading, the amendments should be
These provisions emphasize the difference between an amended
indicated by appropriated marks, normally, the amended portion is
pleading and a supplemental pleading – how do you raise a
underlined.
counterclaim or cross-claim which was not raised earlier? Is it by
amending the pleading or by filing a supplemental pleading ? And
EXAMPLE: A party would to insert an entirely new paragraph. That
that applies also to an answer where the defense or the
paragraph would be underlined. The purpose for such marking is
transaction or the cause of action supervened later.
104
Amilhamja, Adj.
for the court and the opposing party to immediately see and
detectthe amendment. If no appropriated mark is provided the
court and the lawyer has to compare everything, paragraph by
paragraph, sentence by sentence, line by line. Now, if there are
underlines, the court will just concentrate on the underlined
portion. This is for convenience for the parties and the court.
An amendment which merely supplements and amplifies facts

originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the Statute of
Limitations which expired after service of the original complaint.
(Verzosa vs. CA, GR No. 119511-13, Nov. 24, 1998)
105
Amilhamja, Adj.
Rule 11 of the defendant?

A: He can be declared in default on the counterclaim. He has still
WHEN TO FILE RESPONSIVE PLEADINGS standing to prove his cause of action in the main case but he loses
his standing to defend himself in the counterclaim.
What are discussed in this rule are periods. The question when a
defendant wants to file an answer is, “How many days does he Q: Are there instances where an answer to a counterclaim is
have?” There must be a deadline. Rule 11 applies to all persons – optional? Meaning, the plaintiff does not answer and he cannot be
natural and juridical such as a corporation. declared in default.
A: YES, that is when the counterclaim is so intertwined with the main
SECTION 1. Answer to the complaint. The action – they are so intertwined that if the plaintiff would answer the
defendant shall file his or her answer to the counterclaim, it would only be a repetition of what he said in his
complaint within thirty (30) calendar days complaint. In this case, even if the plaintiff will notanswer, he cannot
after service of summons, unless a different be declared in default.
period is fixed by the court. (1a)
EXAMPLE: The plaintiff filed a case against the defendant for
damages arising from a vehicular collision. According to the plaintiff,
because of the negligence of the defendant, the plaintiff’s vehicle
Sec. 2. Answer of a defendant foreign private was damaged amounting to that much. So the cause is quasi-delict.
juridical entity. Answer of a defendant foreign Now in his answer, defendant says no and he denied the liability and
private juridical entity. — Where the he files a counterclaim saying, “As a matter of fact, it is the plaintiff
defendant is a foreign private juridical entity who is negligent. And since my vehicle was damaged, I am now
and service of summons is made on the claiming damages against him.”
government official designated by law to
receive the same, the answer shall be filed So practically, the issue on negligence is being thrown back. Now, the
within sixty (60) calendar days after receipt of plaintiff did not answer the counterclaim, can he be declared in
summons by such entity. (2a) default?
The defendant here is a foreign private juridical entity, meaning, a NO, because if you require the plaintiff to file an answer, what will
foreign corporation doing business in the Philippines. In the first he say? The same, “NO, you were the one at fault.” He will just be
place, one cannot sue a foreign private corporation which is not repeating what he already alleged.
doing business in the Philippines because there is no way that the
court can acquire jurisdiction over the person of such corporation. Sec. 5. Answer to third (fourth, etc.)- party
If the foreign private corporation is doing business in the Philippines, complaint. The time to answer a third (fourth,
then one can sue it here in the Philippines. etc.) — party complaint shall be governed by
the same rule as the answer to the complaint.
(5)
Sec.3. Answer to amended complaint. When
the plaintiff files an amended complaint as
a matter of right, the defendant shall Sec. 6. Reply. A reply, if allowed under Section
answer the same within thirty (30) calendar 10, Rule 6 hereof, may be filed within fifteen
days after being served with a copy thereof. (15) calendar days from service of the pleading
Where its filing is not a matter of right, the responded to. (6a)
defendant shall answer the amended
complaint within fifteen (15) calendar days If you want to file a reply, you have ten (15) days to file. But as a general
from notice of the order admitting the rule, the filing of a reply is optional.
same. An answer earlier filed may serve as
the answer to the amended complaint if no Sec. 7. Answer to supplemental complaint. A
new answer is filed. supplemental complaint may be answered
This Rule shall apply to the answer to an within twenty (20) calendar days from notice of
amended counterclaim, amended cross- the order admitting the same, unless a different
claim, amended third (fourth, etc.)-party period is fixed by the court. The answer to the
complaint, and amended complaint-in- complaint shall serve as the answer to the
intervention. (3a) supplemental complaint if no new or
supplemental answer is filed. (7a)
Sec. 4. Answer to counterclaim or cross- A supplemental complaint may be answered in ten (20) days. The
claim. A counterclaim or cross-claim must computation is again from notice of the order admitting the same
be answered within twenty (20) calendar unless a different period is fixed by the court.
days from service. (4a)
Suppose I will not answer the supplemental complaint? The same
Now, if you answer a counterclaim or cross-claim, you have Section principle – the answer to the original complaint shall serve as the
4. The period to file an answer to a counterclaim or cross-claim answer to the supplemental complaint. So it follows the same principle
isonly ten (20) days from the time it is served. as the amended complaint in the second paragraph of Section 3.
Q: What happens if the plaintiff does not answer the counterclaim
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Amilhamja, Adj.
Sec. 8. Existing counterclaim or cross-claim. A

compulsory counterclaim or a cross-claim that
SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS
a defending party has at the time he or she
files his or her answer shall be contained PLEADING PERIOD
therein. (8a)
1.) Answer 30
One of the requisites to make a counterclaim compulsory is that the 2.) Answer of a private foreign corporation
defending party has the counterclaim at the time he files his answer. a. with designated Philippine representative 60
This is related with Section 7, Rule 6. b. no designated Philippine 30 days representative
3.) Answer to an amended complaint
Sec. 9. Counterclaim or cross-claim arising
a. if as a matter of right 30
after answer. A counterclaim or a cross-claim
b. if as a matter of judicial discretion 15
which either matured or was acquired by a
party after serving his or her pleading may, 4.) Answer to counterclaim or cross-claim 20
with the permission of the court, be presented 5.) Answer to third (fourth, etc.) party complaint 30
as a counterclaim or a cross-claim by
supplemental pleading before judgment. (9, 6.) Reply 15
R6) 7.) Answer to supplemental complaint 20
Sec. 10. Omitted counterclaim or cross-claim.

When a pleader fails to set up a counterclaim When to file responsive pleading?
or a cross-claim through oversight, -Answer to complaint – 30 days after service of Summons (Section 1, Rule
inadvertence, or excusable neglect, or when 11).
justice requires, he or she may, by leave of -Answer of a defendant foreign private juridical entity when summons is
court, set up the counterclaim or cross-claim made on government official designated by law to receive the same – 60
by amendment before judgment. (3a, R9) days from receipt of summons (Section 2, Rule 11).
-Answer to amended complaint – 30 days if amendment is a matter or
We already discussed this before. As a matter of fact, Sections 9 and right or 15 days if amendment is not a matter of right. This rule shall apply
10 illustrates the distinction between an amended pleading to a to answer to amended counterclaim, cross-claim, third (fourth, etc.,)
supplemental pleading. complaint or complaint-in-intervention (Section 2, Rule 11).
-Answer to counterclaim or cross-claim – 20 days from service (Section 4,
If the counterclaim or cross-claim was acquired by a party after
Rule 11).
serving his pleading, he may raise it by way of supplemental
-Answer to Third party, etc., - 30 days (Section 5, Rule 11).
pleading. But if a pleader fails to set up a counterclaim or a cross-
-Reply under Section 10, Rule 6, – 15 days from service (Section 6, Rule
claim which is already matured when he filed his pleading due to
11).
oversight inadvertence or excusable neglect, then he may raise it
-Answer to supplemental complaint – 20 days from notice of the order
by way of amended pleading before judgment. Leave of court is
admitting (Section 7, Rule 11).
necessary.
Sec. 11. Extension of time to file an answer-.

A defendant may, for meritorious reasons,
be granted an additional period of not more
than thirty (30) calendar days to file an
answer. A defendant is only allowed to file
one (1) motion for extension of time to file
an answer.
A motion for extension to file any pleading,
other than an answer, is prohibited and
considered a mere scrap of paper. The
court, however, may allow any other
pleading to be filed after the time fixed by
these Rules. (11a)
Under the new rule, only one motion for extension time to file
Answer may be granted by the court. The court can grant another
30 days to file an Answer.
• A motion for extension to file any pleading, other than an
answer, is prohibited and considered a mere scrap of paper. The
court, however, may allow any other pleading to be filed after the
time fixed by these Rules.
Requisites:
1. There must be a motion;
2. With service of such motion to other party; and
3. On such terms as may be just.
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Amilhamja, Adj.
Rule 12 constitute the party’s claims or defenses. Matters of

evidentiary facts are to be omitted.
BILL OF PARTICULARS
2) It would likewise not be proper for a motion for a bill of
particulars to call for the production of the particulars
Section 1. When applied for; purpose. Before
constituting malice, intent, knowledge, or condition of the
responding to a pleading, a party may move
mind which, under Sec. 5 Rule 8, may be averred
for a definite statement or for a bill of
generally. To require a pleader to do so would be to
particulars of any matter which is not averred
require the statement of evidentiary facts in a pleading.
with sufficient definiteness or particularity to
enable him or her properly to prepare his orher
responsive pleading. If the pleading is a reply, It would not however, be incorrect to move for a bill of
the motion must be filed within ten (10) particulars to require the averment of the particular
circumstances of fraud or mistake. Under Sec. 5 Rule 8,
calendar days from service thereof. Such
motion shall point out the defects complained such matters must be alleged with particularity.
of, the paragraphs wherein they are
contained, and the details desired. (1a) 3) A motion for bill of particulars to require a pleader to set
forth matters showing the jurisdiction of the court to
render its judgment is not proper. The provisions of Sec. 6
Q: Define Bill of Particulars.
Rule 8 are clear: In pleading a judgment it is sufficient to
A: A bill of particulars is a more definite statement of any matter
aver the same generally.
which is not averred with sufficient definiteness or particularity in
a pleading so as to enable the opposing party to prepare his
responsive pleading. (Section 1) In Republic vs. Sandiganbayan 540 SCRA 431, the Court ruled that an
allegation that the “defendant acted” ‘in unlawful concert’ with the
other defendant in illegally amassing assets, property and funds in
When filed
amounts disproportionate to the latter’s income”, is a proper subject
The motion shall be filed before responding to a pleading. Hence, it
must be filed within the period granted by the Rules (R11) for the of a motion for bill of particulars. Plaintiff is bound to clarify the
specific nature, manner and extent of the alleged collaboration
filing of a responsive pleading.
between the defendants. The allegation in the complaint does not
actually state the ultimate facts to show the alleged “unlawful
The motion shall point out:
concert”. Allegations couched in general terms are not statements
1. The defects complained of;
of ultimate facts.
2. The paragraphs wherein they are contained; and
3. The details desired.
An action cannot be dismissed on the ground that the complaint is
The motion must comply with the requirements for motions under
vague or indefinite. The remedy of the defendant is to move for a bill
Secs 4, 5, and 6 of R 15. Otherwise the motion will not suspend the
of particulars or avail of the proper mode of discovery. (Galeon vs.
period to answer (Filipino Fabricator vs. Magsino, GR No. 47574, Jan.
Galeon GR No. L-30380, Feb. 28, 1973)
29, 1988).
Necessary that complaint states a cause of action
Purpose: To aid in the preparation of a responsive pleading
As long as the allegations of a complaint make out a cause ofaction,
the ambiguity in some allegations of the complaint or the failure to
The purpose of the motion is to seek an order from which court
allege facts with sufficient particularity does not justifythe filing of
directing the pleader to submit a bill of particulars which avers
a motion to dismiss. The proper remedy is to file a motion for a bill
matters with “sufficient definiteness or particularity” to enable the
of particulars.
movant to prepare his responsive pleading (Sec. 1), not to enable the
movant to prepare for trial. Where the purpose of the movantis to To which pleadings directed
enable him to prepare for trial, the appropriate remedy is to avail of It must be made clear that a motion for a bill of particulars is not
the discovery procedures from Rules 23 to 29 and even of apre-trial directed only to a complaint. It is a motion that applies to any pleading
under Rule 18. which in the perception of the movant contains ambiguous allegations.
In less technical terms, a function of a bill of particulars is to clarify
the allegations in the pleading so an adverse party may be informed EXAMPLE: The plaintiff filed a complaint against you and you are now
with certainty of the exact character of a cause of action or a furnished with a copy by the lawyer of the plaintiff. So, you have to file
defense. Without the clarifications sought by the motion, the your answer. You have to understand what the cause of action is all
about. So you read the complaint – you notice that the allegations are
movant may be deprived of the opportunity to submit an
vague, ambiguous, and uncertain. So, you cannot understand the
intelligent responsive pleading.
allegations. So, you have a hard time preparing your answer. Now, you
do not want to answer something that you cannot understand.
When not proper
1) Since the purpose of the motion for bill of particulars
Q: So what is your remedy?
is to allow the movant to properly prepare his own
A: The remedy is, instead of answering, you file a motion for a bill of
pleading, it would be erroneous for the motion to ask
particulars and according to Section 1, your motion will point out the
the court to order the adverse party to disclose or to
defects complained of, the paragraphs where they are contained and
set forth in his pleading the evidences relied upon for
the details desired. Because according to you, the allegations are not
his cause of action or defense. These are matters
averred with sufficient definiteness or particularity to enable you
obtainable by the various modes of discovery. Besides
properly to prepare your responsive pleading that is what it is all about.
under Sec. 1 of Rule 8, pleadings are meant to contain
only a direct statement of the ultimate facts which
So the defendant resorts to the Bill of Particulars if the allegations of
108
Amilhamja, Adj.
ultimate facts in the complaint are vague and ambiguous that the matters?
defendant will have difficulty in preparing his answer. So, he can not A: I believe it is fair for the defendant to compel the plaintiff to reveal
understand and will ask for more details to clear the ambiguities. He the details of his ultimate facts but not under Rule 12. You better
will file a motion for Bill of Particulars, citing the defects and ask for avail of the modes of discovery under Rule 23, depositions, request
the details, because how can he prepare an answer if he does not for admission, etc. But you cannot convert Rule 12 into a modes of
understand the complaint? discovery. Each rule has its own functions.
So, let’s give a good example of an instance, where the defendant
BAR QUESTION: Suppose a complaint is ambiguous, uncertain, can rightfully ask for more specifics or particulars.
indefinite or vague, can the defendant file a motion to dismiss?
A: NO! A complaint cannot be dismissed simply because it is vague,
EXAMPLE: The plaintiff will sue the defendant for annulment of
ambiguous. (Pañgan vs. Evening News, L-13308, Oct. 29, 1960) The
contract on the ground that the defendant employed FRAUD in getting
correct remedy is for the defendant to file a motion for bill of the consent of the plaintiff. The plaintiff said, “He got my consent to
particulars, which will ask for more details on these vague portions the contract by fraud.” The defendant filed a motion for a bill of
of the complaint. (Amoro vs. Sumaguit, L-14986, July 31, 1962)
particulars: “That the defendant employed fraud in getting plaintiff’s
consent is vague, So, I’m asking the plaintiff should give more specifics.
According to the SC in the case of How did I fool you? In what way did I employ fraud? In what way was
TAN vs. SANDIGANBAYAN – 180 SCRA 34 [1989] the fraud exercised?”
HELD: “The proper office of a bill of particulars is to inform the
opposite party and the court of the precise nature and
Q: Now, is the motion for a bill of particulars meritorious?
character of the cause of action the pleader has attempted to
A: YES, because allegations of fraud must be stated with
set forth, and thereby to guide his adversary in his preparations
particularity. So, you go back in Rule 8, Section 5: Rule 8, Sec. 5
for trial and reasonably protect him against surprise at the trial.
Fraud, mistake, condition of the mind.—In all averments of fraud or
It complements the rule on pleadings in general, that is, that
mistake, the circumstances constituting fraud or mistake must be
the complaint should consist of a concise statement of the
stated with particularity. x x x
ultimate facts.”
“Its primary objective is to apprise the adverse party of what We already studied that provision. Therefore, if the allegation ofthe
the plaintiff wants — to preclude the latter from springing a plaintiff is simply that the defendant employed fraud, that allegation is
surprise attack later.” not sufficient because under Rule 8, it must be stated with particularity.
Therefore, if it is not stated with particularity, the remedy of the
According to the SC, the primary purpose of the bill of particulars defendant is to file a motion for a bill of particulars under Rule 12.
is to apprise the adverse party of what a plaintiff wants. To
preclude the latter from springing a surprise attack later. Why? Q: Suppose, it is the answer which is vague. Suppose ang answer
Because the plaintiff may deliberately make his allegations vague, malabo. It is the other way around. It is the defendant’s answer which
to confuse you – to mislead you – because you might adopt a is vague or uncertain. Can the plaintiff file a motion for bill of particulars
different interpretation. If the interpretation turns out to be to compel he defendant to clarify or to particularize his vague answer?
different, your defenses might be wrong. So, he deliberately A: YES, because the plaintiff can say, “I cannot file my reply. I mean, I
makes his complaint ambiguous. Now, the other party should want to file a reply but I can’t file a reply unless I understand what is
thwart that by asking for a bill of particulars to compel the your defense.” So it works both ways.
plaintiff to make the allegationsof his cause of action clearer. So,
that is what the bill of particulars is all about. Q: Suppose, it is the reply of the plaintiff to the answer which is vague
or ambiguous. Can the defendant file a motion for bill of particulars to
Now, we will go to a specific situation and let’s find out whether clarify the vague reply?
the defendant could file for a bill of particulars. A: YES. According to Section 1, the motion is to be filed within 10 days.
So even if the reply is vague, it can still be the subject of the bill of
PROBLEM: Now, suppose the pleader says in his complaint that particulars within 10 days because there is no more responsive
he has been in the possession of the litigated property pleadings there.
continuouslyfor forty (40) years. The defendant flied a motion for
a bill of particulars, “The allegations is very broad, very general, So, every pleading which is vague the other party can always compel
very vague. Please tell by way of particulars what are the you to make it clearer.
improvements you introduced for the past 40 years. I would like
to ask for these details to clarify your allegations that you have Q: Is this remedy available in criminal cases?
been in continuous possession of the land for 40 years.” A: YES. If it is the information which is vague, you cannot understand
the allegations in the information, you cannot plead, “Paano, I cannot
Q: Is that a proper motion for a Bill of Particulars? enter a plea of guilty or not guilty kasi hindi ko maintindihan eh” the
A: NO, because it is asking for evidentiary matters. In the first accused can file a motion for bill of particulars to require the
place, the plaintiff has no obligation to state the evidentiary prosecution to clarify vague portions of a complaint or information.
matters in his complaint. It should only state ultimate facts. So, it There is an identical provision in Rule 116, Section 9 of the Rules on
is not allowed in the pleading. You cannot ask for that by way of Criminal Procedure.
particulars. RULE 116, SEC. 9. Bill of particulars. – The accused may,
So, what is sought to be remedied are vague and ambiguous before arraignment, move for a bill of particulars to
statements of ultimate facts. But you cannot use it to fish for enable him properly to plead and
evidentiary matters. Evidentiary facts cannot be the subject of a prepare for trial. The motion shall specify the
motion for a bill of particulars. alleged defects of the complaint or informationand
the details desired. (10a)
Q: But is it not fair that before trial I should know your evidentiary
109
Amilhamja, Adj.
The concept is the same. If the allegations in the information are

also vague and ambiguous, “I cannot understand it, so I cannot a) to deny the motion outright,
intelligently enter my plea.” The accused, before arraignment, can b) to grant the motion outright, or
move for a bill of particulars to enable him to prepare properly for c) to hold a hearing on the motion.
the trial. Then he must specify the defects.
Sec. 3. Compliance with order. If the motion is
CINCO vs. SANDIGANBAYAN (criminal case) – 202 SCRA granted, either in whole or in part, the compliance
726[1991] therewith must be effected within ten (l0) calendar
FACTS: A motion for bill of particulars was filed by the lawyer days from notice of the order, unless a different
of the respondent in the fiscal’s office when the case was period is fixed by the court. The bill of particulars or
under preliminary investigation. (In preliminary a more definite statement ordered by the court may
investigation, you are given the affidavit of the complainant be filed either in a separate or in an amended
and his witnesses. And then you are given 10 days to submit pleading, serving a copy thereof on the adverse
your counter-affidavits.) Here, the affidavit is vague party. (n)
according to the accused, so he is filing a bill of particulars.
He wanted to compel the complainant to make his affidavit Q: Suppose the court grants the motion and the defendant or the
clearer. plaintiff will be required to submit the bill of particulars. How will you
ISSUE: Is Section 9 applicable when the case is still in the comply with the order to file a bill of particulars?
fiscal’s office for preliminary investigation? A: There are two (2) ways:
HELD: NO. It is only applicable when the case is already in 1.) Just submit the details of the vague paragraphs; or
court for trial or arraignment. 2.) Amend the whole pleading and clarify the vague
But suppose during the preliminary investigation, “I cannot paragraphs
understand what the complainant is saying in his affidavit?”
The SC said, that is simple! If you cannot understand what Period to comply with the order granting the motion - 10 days from
the complainant is saying in his affidavit, chances are, the notice of order unless a different period is fixed by the court.
fiscal also will not understand it. And consequently, he will
dismiss the case. Eh di mas maganda! Wag ka na lang mag- The Bill of Particulars may be filed either in a separate or in an
reklamo! [tanga!] amended pleading serving a copy thereof to the adverse party.
Sec. 4. Effect of non-compliance. If the order is not

Sec. 2. Action by the court. Upon the filing of obeyed, or in case of insufficient compliance
the motion, the clerk of court must therewith, the court may order the striking out
immediately bring it to the attention of the of the pleading or the portions thereof to which
court which may either deny or grant it the order was directed or make such other order
outright, or allow the parties the as it deems just. (1[c]a)
opportunity to be heard. (2)
Effect of Non-Compliance
So pag-file mo ng motion for bill of particulars, the clerk has the 1) If the order is not obeyed or in case of insufficient
obligation to bring it immediately to the attention of the court and compliance, therewith, the court:
the court can deny or grant the motion immediately. But of course,
it is up to the court to call for a hearing or not. a) may order the striking out of the pleading or the
portion thereof to which the order is directed; or
b) make such order as it may deem just.
Q: Now, what do you think is the reason behind that? Why do
2) If the plaintiff fails to obey, his complaint may be
you think is this provision here, which is not found in the old
dismissed with prejudice unless otherwise ordered bythe
rules?
court (R 12, Sec. 4; R 17, Sec. 3);
A: Many lawyers have abused Rule 12.
3) If defendant fails to obey, his answer will be stricken off
In what way? A complaint is filed but even if the allegations are
and his counterclaim dismissed, and he will be declared in
clear he will file a motion for bill of particulars claiming that he
default upon motion of the plaintiff (R 12, Sec. 4; R 17, Sec.
cannot understand. Then, he will set the motion for hearing 2
4; R 9, Sec. 3)
weeks from now. Then the motion is denied because it has no
merit, then, and only then will he file an answer. In other words,
Q: Alright, suppose the motion is granted, the court ordered the
the defendant has succeeded in delaying the period for filing an plaintiff to submit a bill of particulars. The plaintiff refused to comply
answer by pretending that he cannot understand. with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions
So in order to prevent that kind of dilatory tactic, when the motion thereof which is the object of the bill of particulars. Like, when you
is filed, the court is now authorized to immediately act on the do not want to clarify your complaint, the judge will now issue an
motion without delaying the filing of the answer. That is the order to strike out the entire complaint. It is as if the complaint was
reason why this provision was inserted because the filing of the never filed. Practically, your complaint was dismissed. In effect your
motion for bill of particulars can cause delay. complaint was dismissed because if the complaint was ordered
stricken out, then it is equivalent to dismissal of the case itself.
Action of the court
Upon receipt of the motion which the clerk of court must
immediately bring to the attention of the court, the latter has
three possible options, namely,
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Amilhamja, Adj.
Sec. 5. Stay of period to file responsive

pleading. After service of the bill of
particulars or of a more definite pleading, or
after notice of denial of his or her motion,
the moving party may file his or her
responsive pleading within the period to
which he or she was entitled at the time of
filing his or her motion, which shall not be
less than five (5) calendar days in any event.
(1[b]a)
Effects of Motion
1) If the motion is granted, in whole or in part, the movant
can wait until the bill of particulars is served on him by
the opposing party and then he will have the balance of
the reglementary period within which to file his
responsive pleading; and
2) If his motion is denied, he will still have such balance of

the reglementary period to file his responsive pleading,
counted from service of the order denying his motion.
Note: In either case he shall have no less than 5 days to file his
responsive pleading.
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I

filed a motion for a bill of particulars. On the 8th day, the running
of the period automatically stops and then after several days, you
receive the order. For example, denying your motion, you still
have 7 days to go because the period during which your motion
was pending will not be counted as the 15-day period was
interrupted.
Q: Suppose, you file your motion for a bill of particulars on the

14th day and your motion is denied. You received the order today.
How many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days.
Sec. 6. Bill a part of pleading -A bill of

particulars become part of the pleading for
which it is intended
111
Amilhamja, Adj.
Rule 13 service should be to the lawyer and not to the party. Service to a party
is not valid. What is valid is service to the counsel. Service to the lawyer
FILING AND SERVICE OF PLEADINGS, binds the party. But service to the party does not bind the lawyer and
JUDGMENTS AND OTHER PAPERS the party, unless the court orders direct service to the party.
If a party has not appeared by counsel, then common reason suggests

Section 1. Coverage. This Rule shall govern the that service must be made upon him.
filing of all pleadings motions, and other court
submissions, as well as the service thereof, It has been held that notice or service made upon a party who is
except those for which a different mode of represented by counsel is a nullity. As a rule, notice to the client and
service is prescribed. (1a) not to his counsel of record is not notice in law unless for instance when
the court or tribunal orders service upon the party or when the
As a general rule, service of all pleadings is governed by Rule 13. So, technical defect in the manner of notice is waived (Heirs of Benjamin
this rule governs pleadings “except those for which a different mode Mendoza vs CA GR 170247, September 17, 2008).
of service is prescribed.” An example of the exception is the service Service upon the parties’ counsel of record is tantamount to service
of complaint which is governed by Rule 14. So Rule 13applies to all upon the parties themselves, but service upon the parties
pleadings except complaint. themselves is not considered service upon their lawyers. The reason
is simple – the parties, generally, have no formal education or
Rule 13 governs the rule on the filing and service of pleadings, knowledge of the rules of procedure, specifically, the mechanics of
motions and other court submissions. an appeal or availment of legal remedies; thus, they may also be
—There are documents filed in court which are not within the unaware of the rights and duties of a litigant relative to the receipt
category of pleadings or motions. For instance, manifestations, of a decision. More importantly, it is best for the courts to deal only
formal offer evidence, or entry of appearance. These are court with one person in the interest of orderly procedure – either the
submissions. lawyer retained by the party or the party himself if he does not
intend to hire a lawyer (De los Santos vs. Elizalde GR 141810 &
What is the difference between filing and service of pleadings? 141812, February 2, 2007; Hernandez vs. Clapis, 87 Phil. 437; Javier
Section 2: Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
Sec. 2. Filing and service, defined. Filing is the There was even a case when the client volunteered to get the copy
act of submitting the pleading or other paper of the decision. But he party failed to give it to his lawyer. Is the
to the court. lawyer bound, or is the party also bound? NO, because the rule is
Service is the act of providing a party with a service to lawyer binds the client and not the other way around.
copy of the pleading or any other court
submission. If a party has appeared by So, to avoid all these problems, there must be a uniform rule
counsel, service upon such party shall be made UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF IS
upon his or her counsel, unless service upon ORDERED BY THE COURT.
the party and the party’s counsel is ordered by
the court. Where one counsel appears for
several parties, such counsel shall only be Example is in the case of
entitled to one copy of any paper served by
the opposite side. RETONI, JR. vs. CA – 218 SCRA 468 [1993]
Where several counsels appear for one party, HELD: “Usually, service is ordered upon the party himself,
such party shall be entitled to only one copy of instead of upon his attorney, [1] when it is doubtful who the
any pleading or paper to be served upon the attorney for such party is, or [2] when he cannot be located or
lead counsel if one is designated, or upon any [3] when the party is directed to do something personally, as
one of them if there is no designation of a lead when he is ordered to show cause.”
counsel. (2a)
There are rare circumstances however where service to the lawyer
—Section 2 mandates that if a party is represented by several doe,s not bind the client. These are cases of negligence; where the
counsels, such party is entitled only to one copy of the pleading lawyer is in bad faith for gross negligence; where he deliberately
or paper, to be served upon the lead counsel. Should there be no prejudiced his client. So it is unfair that the party may be bound by
designated lead counsel, to anyone of the counsels of the party. the service to the lawyer because of those circumstances. One such
Please take NOTE: instance happened in the case of
—Subject to compelling reasons involving substantial justice,
service of a petition upon a party, when the party is represented
BAYOG vs. NATINO – 258 SCRA 378 [1996]
by counsel of record, is a patent nullity and is not binding upon HELD: “Notice to the lawyer who appears to have been
the party wrongfully served (Republic vs. Caguioa, 671 SCRA 306,
unconscionably irresponsible cannot be considered as notice to
317). his client. The application to the given case of the doctrine that
When you say FILING, you present the pleading or other papers to
notice to counsel is notice to parties should be looked into
the office of the clerk of court. When you say SERVICE, you furnish a and adopted, according to the surrounding circumstances;
copy of the pleading or paper concerned to a party, or if he is
otherwise, in the court’s desire to make a short cut of the
represented by a lawyer, you must furnish a copy of the pleading to proceedings, it might foster, wittingly or unwittingly,
the lawyer.
dangerous collusions to the detriment of justice.It would then
be easy for one lawyer to sell one’s rights down the river, by
The GENERAL RULE, when a party is represented by a lawyer, the
just alleging that he just forgot every process of the court
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affecting his clients, because he was so busy.” Sec. 4. Papers required to be filed and served.
Every judgment, resolution, order, pleading
Q: Now, if there are 5 defendants in the same case and there is subsequent to the complaint, written motion,
only one (1) lawyer for all, is the lawyer entitled to 5 copies also? notice, appearance, demand, offer of
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last judgment or similar papers shall be filed with
sentence, “Where one counsel appears for several parties, he the court, and served upon the parties
shall only be entitled to one copy of any paper served upon him affected. (4)
by the opposite side.” But if the 5 defendants are represented by
different lawyers, that is another story. Every lawyer has to be * Under the new rule, there are four methods of service:
furnished a copy. 1. Personal service
2. By registered mail
Q: Suppose you are represented by three or more lawyers should 3. By accredited courier service
every lawyer be served a copy? 4. Electronic mail, facsimile transmission, other means as may
A: NO, service on one is sufficient. Section 2 says, “…service shall be be authorized by the Court, electronic
made upon his counsel or one of them…” Service to one is service to 5. Service or as provided for in international
all. You can do it if you want to but service on one will suffice.
which the Philippines is a party. (Convention of 15 November
1965 on the Service Abroad of Judicial and Extrajudicial
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Documents in Civil or Commercial Matters)
Now, how do you file pleadings? Section 3:
Sec. 5. Modes of service-Pleadings, motions,
Sec. 3. Manner of filing. The filing of pleadings
notices, orders, judgments, and other court
and other court submissions shall be made by:
submissions shall be served personally or by
(a) Submitting personally the original thereof,
registered mail, accredited courier, electronic
plainly indicated as such, to the court;
mail, facsimile transmission, other electronic
(b) Sending them by registered mail;
means as may be authorized by the Court, or
(c) Sending them by accredited courier; or(
as provided for in international conventions to
d) Transmitting them by electronic mail or
which the Philippines is a party. (5a)
other electronic means as may be authorized
by the Court in places where the court is
electronically equipped.
In the first case, the clerk of court shall PERSONAL SERVICE OF PLEADINGS
endorse on the pleading the date and hour of
filing. In the second and third cases, the date Sec. 6. Personal service. Court submissions may
of the mailing of motions, pleadings, and other be served by personal delivery of a copy to the
court submissions, and payments or deposits, party or to the party’s counsel, or to their
as shown by the post office stamp on the authorized representative named in the
envelope or the registry receipt, shall be appropriate pleading or motion, or by leaving
considered as the date of their filing, payment, it in his or her office with his or her clerk, or
or deposit in court. The envelope shall be with a person having charge thereof. If no
attached to the record of the case. In the person is found in his or her office, or his or her
fourth case, the date of electronic office is not known, or he or she has no office,
transmission shall be considered as the date of then by leaving the copy, between the hours
filing. (3a) of eight in the morning and six in the evening,
at the party's or counsel's residence, if known,
Section 3 of the new Rules expands the manner of filing. Filing can with a person of sufficient age and discretion
be made in four ways: residing therein. (6a)
(a)Submitting personally the original thereof, plainly indicated as
such, to the court; —Under the new rule, personal service may be made not only to party
(b) Sending them by registered mail; or the party’s counsel, but also to party’s authorized representatives
(c) Sending them by accredited courier; named in the appropriate pleading or motion.
(d) Transmitting them by electronic mail or other electronic means
as may be authorized by the Court in places where the court is Personal service under Section 6 is the preferred mode of service (Sec.
electronically equipped. 11; Uy vs. Medina 342 SCRA 393).
When is the pleading, motion or other court submissions How are pleadings served personally?
considered filed? Personal service is made by:
(a)When filed personally, upon the receipt of the court; (a) delivering a copy of the papers served personally to the
(b)When filed registered mail or accredited courier, the date of party or his counsel or to party’s authorized representatives
mailing; named in the appropriate pleading or motion, or
(c) In the fourth case, the date of electronic transmission shall be (b) by leaving the papers in his office with his clerk or a person
considered as the date of filing. having charge thereof. If no person is found inthe office,
or his office is not known or he has no office,
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER (c) then by leaving a copy of the papers at the party’s or
PAPERS counsel’s residence, if known, with a person of sufficient
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age and discretion residing therein between eight in Section 11. Change of electronic mail address or
the morning and six in the evening. (Sec. 6) facsimile number. — A party who changes his or
her electronic mail address or facsimile number
while the action is pending must promptly file,
Sec. 10. Presumptive service. — There shall be within five (5) calendar days from such change, a
presumptive notice to a party of a court notice of change of e-mail address or facsimile
setting if such notice appears on the records to number with the court and serve the notice on all
have been mailed at least twenty (20) other parties.
calendar days prior to the scheduled date of Service through the electronic mail address or
hearing and if the addressee is from within the facsimile number of a party shall be presumed
same judicial region of the court where the valid unless such party notifies the court of any
case is pending, or at least thirty (30) calendar change, as aforementioned. (n)
days if the addressee is from outside the
judicial region. (n) —A party who changes his e-mail address or facsimile number while the
action is pending is bound to promptly inform the court of such change
— There is now a presumptive notice of court setting. within a period of five (5) calendar days from such change.
—Notice of court setting is presumptively received if it appears from — Please take NOTE:
the record that the same has been mailed at least 20 calendar days — Service through the electronic mail address or facsimile number of a
prior to the scheduled hearing if the addressee is from within the party shall be presumed valid unless such party notifies the court of any
same judicial region of the court where the case is pending. change, as aforementioned.
— If outside judicial region, it will be 30 calendar days.
Section 12. Electronic mail and facsimile subject
and title of pleadings and other documents. —
SERVICE OF PLEADINGS BY MAIL The subject of the electronic mail and facsimile
must follow the prescribed format: case number,
case title and the pleading, order or document
Sec. 7. Service by mail. Service by registered title. The title of each electronically-filed or
mail shall be made by depositing the copy in served pleading or other document, and each
the post office, in a sealed envelope, plainly submission served by facsimile shall contain
addressed to the party or to the party’s sufficient information to enable the court to
counsel at his or her office, if known, ascertain from the title:
otherwise at his or her residence, if known, (a) the party or parties filing or serving the
with postage fully pre-paid, and with paper,
instructions to the postmaster to return the (b) nature of the paper,
mail to the sender after ten (10) calendar days (c) the party or parties against whom relief,
if undelivered. If no registry service is available if any, is sought, and
in the locality of either the sender or the (d) the nature of the relief sought. (n)
addressee, service may be done by ordinary
mail. (7a) Section 13. Service of Judgments, Final Orders or
Resolutions. — Judgments, final orders, or
SUBSTITUTED SERVICE OF PLEADINGS resolutions shall be served either personally or
by registered mail. Upon ex parte motion of any
Sec. 8. Substituted service. If service of party in the case, a copy of the judgment, final
pleadings, motions, notices, resolutions, order, or resolution may be delivered by
orders and other papers cannot be made accredited courier at the expense of such par ty.
under the two preceding sections, the office When a par ty summoned by publication has
and place of residence of the party or his or failed to appear in the action, judgments, final
her counsel being unknown, service may be orders or resolutions against him or her shall be
made by delivering the copy to the clerk of served upon him or her also by means of
court, with proof of failure of both personal publication at the expense of the prevailing
service and service by mail. The service is party. (9a)
complete at the time of such delivery. (8a)
—As a rule, judgments, final orders, or resolutions shall be served either
personally or by registered mail.
This mode is availed of only when there is failure to effect service
—However, upon ex parte motion of any party in the case, a copy of the
personally or by mail. This failure occurs when the office and
judgment, final order, or resolution may be delivered by accredited
residence of the party or counsel is unknown (Sec. 8).
courier at the expense of such party.
Substituted service is effected by delivering the copy to the clerk of
court, with proof of failure of both personal service and service by
mail (Sec. 8).
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Sec 9. Service by electronic means and Sec. 13. Service of judgments, final orders or
facsimile. — Service by electronic means resolutions. Judgments, final orders, or
and facsimile shall be made if the party resolutions shall be served either personally or
concerned consents to such modes of by registered mail. Upon ex parte motion of
service.Service by electronic means shall be any party in the case, a copy of the judgment,
made by sending an e-mail to the party’s or final order, or resolution may be delivered by
counsel’s electronic mail address, or accredited courier at the expense of such
through other electronic means of party. When a party summoned by publication
transmission as the parties may agree on, or has failed to appear in the action, judgments,
upon direction of the court. final orders or resolutions against him or her
Service by facsimile shall be made by shall be served upon him or her also by means
sending a facsimile copy to the party’s or of publication at the expense of the prevailing
counsel’s given facsimile number. party. (9a)
— Under this section, service by electronic means and facsimile shall —As a rule, judgments, final orders, or resolutions shall be served
be made if the party concerned consents to such modes of service. either personally or by registered mail.
—If a party consents, service by electronic means shall be made by —However, upon ex parte motion of any party in the case, a copy of
sending an e-mail to the party’s or counsel’s electronic mail address, the judgment, final order, or resolution may be delivered by
or through other electronic means of transmission as the parties accredited courier at the expense of such party.
may agree on, or upon direction of the court.
—Service by facsimile shall be made by sending a facsimile copy to Section 14. Conventional service or filing of
the party’s or counsel’s given facsimile number. orders, pleadings and other documents.
– Notwithstanding the foregoing, the
Sec 11. Change of electronic mail address or following orders, pleadings, and other
facsimile number. — A party who changes documents must be served or filed personally
his or her electronic mail address or or by registered mail when allowed, and shall
facsimile number while the action is not be served or filed electronically, unless
pending must promptly file, within five (5) express permission is granted by the Court:
calendar days from such change, a notice of There are pleadings and other documents
change of e-mail address or facsimile which must be filed or served personally or by
number with the court and serve the notice registered mail:
on all other parties. 1. Initiatory pleadings and initial
Service through the electronic mail address responsive pleadings, such as an answer;
or facsimile number of a party shall be 2. Subpoenae, protection orders, and
presumed valid unless such party notifies writs;
the court of any change, as 3. Appendices and exhibits to motions, or
aforementioned. (n) other documents that are not readily
amenable to electronic scanning may, at the
—A party who changes his e-mail address or facsimile number option of the party filing such, be filed and
while the action is pending is bound to promptly inform the court served conventionally; and
of such change within a period of five (5) calendar days from such 4. Sealed and confidential documents or
change. records.
— Please take NOTE: — HOWEVER, they may be filed or served
— Service through the electronic mail address or facsimile through other means, upon express
number of a party shall be presumed valid unless such party permission from the court.
notifies the court of any change, as aforementioned.
Sec 12. Electronic mail and facsimile subject

and title of pleadings and other documents.
— The subject of the electronic mail and
facsimile must follow the prescribed
format: case number, case title and the
pleading, order or document title. The title
of each electronically-filed or served
pleading or other document, and each
submission served by facsimile shall contain
sufficient information to enable the court to
ascertain from the title:
(a) the party or parties filing or serving the
paper,
(b) nature of the paper,
(c) the party or parties against whom relief,
if any, is sought, and
(d) the nature of the relief sought. (n)
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Sec 15. Completeness of service. — Personal court, with postage fully prepaid, and
service is complete upon actual delivery. with instructions to the postmaster to
Service by ordinary mail is complete upon return the mail to the sender after ten
the expiration of ten (10) calendar days (10) calendar days if not delivered.
after mailing, unless the court otherwise (c) (c) If the pleading or any other court
provides. Service by registered mail is submission was filed through an
complete upon actual receipt by the accredited courier service, the filing shall
addressee, or after five (5) calendar days be proven by an affidavit of service of the
from the date he or she received the first person who brought the pleading or
notice of the postmaster, whichever date is other document to the service provider,
earlier. Service by accredited courier is together with the courier’s official
complete upon actual receipt by the receipt and document tracking number.
addressee, or after at least two (2) attempts (d) If the pleading or any other court
to deliver by the submission was filed by electronic mail,
courier service, or upon the expiration of the same shall be proven by an affidavit
five (5) calendar days after the first attempt of electronic filing of the filing party
to deliver, whichever is earlier. accompanied by a paper copy of the
Electronic service is complete at the time of pleading or other document transmitted
the electronic transmission of the or a written or stamped acknowledgment
document, or when available, at the time of its filing by the clerk of court. If the
that the electronic notification of service of paper copy sent by electronic mail was
the document is sent. Electronic service is filed by registered mail, paragraph (b) of
not effective or complete if the party this Section applies.
serving the document learns that it did not (e) (e) If the pleading or any other court
reach the addressee or person to be served. submission was filed through other
Service by facsimile transmission is authorized electronic means, the same
complete upon receipt by the other party, shall be proven by an affidavit of
as indicated in the facsimile transmission electronic filing of the filing party
printout. (10a) accompanied by a copy of the electronic
acknowledgment of its filing by the court.
— When is service considered complete? (12a)
— Service by ordinary mail is complete upon the expiration of
ten (10) calendar days after mailing. When are proofs of filing?
— Service by registered mail is complete upon actual receipt by — By the existence of the pleading or other court
the addressee, or after five (5) calendar days from the date he or submission in the
she received the first notice of the postmaster, whichever date is record of the case;
earlier. — If there are not in record, the filing shall be proven by
— Service by accredited courier is complete upon actual receipt the written or stamped acknowledgment of its filing by
by the addressee, or after at least two (2) attempts to deliver by the clerk of court on a copy of the pleading or court
the courier service, or upon the expiration of five (5) calendar days submission;
after the first attempt to deliver, whichever is earlier. — If by accredited courier service, by an affidavit of
—Electronic service is complete at the time of the electronic service of the person who brought the pleading or other
transmission of the document, or when available, at the time that document to the service provider, together with the
the electronic notification of service of the document is sent. courier’s official receipt and document tracking number;
— If filed by electronic mail, by an affidavit of electronic
Sec 16. Proof of filing. — The filing of a filing of the filing party accompanied by a paper copy of
pleading or any other court submission shall the pleading or other document transmitted or a written
be proved by its existence in the record of or stamped acknowledgment of its filing by the clerk of
the case. court. If the paper copy sent by electronic mail was filed
(a) If the pleading or any other court by registered mail, paragraph (b) of this Section applies;
submission is not in the record, but is — If filed through other electronic means, the same shall
claimed to have been filed personally, be proven by an affidavit of electronic filing of the filing
the filing shall be proven by the party accompanied by a copy of the electronic
written or stamped acknowledgment acknowledgment of its filing by the court.
of its filing by the clerk of court on a
copy of the pleading or court
submission;
(b) if the pleading or any other court
submission was filed by registered
mail, the filing shall be proven by the
registry receipt and by the affidavit of
the person who mailed it, containing a
full statement of the date and place of
deposit of the mail in the post office in
a sealed envelope addressed to the
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Sec 17. Proof of service. –— Proof of Sec. 19. Notice of lis pendens. In an action
personal service shall consist of a written affecting the title or the right of possession of
admission of the party served, or the official real property, the plaintiff and the defendant,
return of the server, or the affidavit of the when affirmative relief is claimed in his or her
party serving, containing a statement of the answer, may record in the office of the registry
date, place, and manner of service. If the of deeds of the province in which the property
service is made by: is situated a notice of the pendency of the
(a) Ordinary mail. – Proof shall consist of action. Said notice shall contain the names of
an affidavit of the person mailing the parties and the object of the action or
stating the facts showing compliance defense, and a description of the property in
with Section 7 of this Rule. that province affected thereby. Only from the
(b) Registered mail. – Proof shall be made time of filing such notice for record shall a
by the affidavit mentioned above and the purchaser, or encumbrancer of the property
registry receipt issued by the mailing office. affected thereby, be deemed to have
The registry return card shall be filed constructive notice of the pendency of the
immediately upon its receipt by the sender, action, and only of its pendency against the
or in lieu thereof, the unclaimed letter parties designated by their real names
together with the certified or sworn copy of
the notice given by the postmaster to the The notice of lis pendens hereinabove
addressee. mentioned may be cancelled only upon order
(c) Accredited courier service. – Proof shall of the court, after proper showing that the
be made by an affidavit of service executed notice is for the purpose of molesting the
by the person who brought the pleading or adverse party, or that it is not necessary to
paper to the service provider, together with protect the rights of the party who caused it
the courier’s official receipt or document to be recorded. (14A)
tracking number.
(d) Electronic mail, facsimile, or other
authorized electronic means of This used to be in Rule 14 of the 1964 Rules of Court where it was
transmission. – Proof shall be made by an misplaced. I do not know why notice of lis pendens which refers to
affidavit of service executed by the person lands, titles and deeds appears under the rules on Summons. It was
who sent the e- mail, facsimile, or other misplaced so they place it under Rule 13 which is also misplaced.
electronic transmission, together with a
printed proof of transmittal. (13a) NOTICE OF LIS PENDENS is a notice of pending action or litigation
between the parties involving title to or right of possession over real
What are proofs of service? property.
— Accredited courier service. – Proof shall be made by an affidavit
of service executed by the person who brought the pleading or Requisites:
paper to the service provider, together with the courier’s official 1) Action affects the title or the right of possession of a real
receipt or document tracking number. property;
— Electronic mail, facsimile, or other authorized electronic means 2) Affirmative relief is claimed;
of transmission. – Proof shall be made by an affidavit of service 3) Notice shall contain the name of the parties and the object
executed by the person who sent the e- mail, facsimile, or other of the action or defense and a description of the property
electronic transmission, together with a printed proof of affected thereby; and
transmittal. 4) Action in rem (AFP Mutual Benefit Association, Inc. vs.CA GR
No. 104769, March 3, 2000)
Sec 18. Court -issued orders and other
documents. — The court may electronically This serves as a warning to all persons that a particular real property is
serve orders and other documents to all the in litigation, and that one who acquires an interest over said property
parties in the case which shall have the does so at his own risk, or that he gambles on the result of the litigation
same effect and validity as provided herein. over said property (Lee Tek Sheng vs. CA, GR No. 115402, July 15, 1998)
A paper copy of the order or other
document electronically served shall be It may involve actions that deal not only with the title or possession of
retained and attached to the record of the a real property, but even with the use or occupation thereof. (Ake
case. (n) hernudd, Gosta Jansbo, Hans ryngelsson, Peter Lofgren and Jordana
Holdings Corporation, for itself and on behalf of San Remo
—Section is a new provision. The court may electronically serve Development Corp. Inc., vs. Lars E. Lofgren, Liza Salcedo-Lofgren, Leosyl
orders and other documents to all the parties in the case which Salcedo and San Remo Development, Inc., GR No. 140337, Sept. 27,
shall have the same effect. 2007).
—A paper copy of the order or other document electronically
served shall, however, be retained and attached to the record of
the case.
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Rule 14 Domingo, 657 SCRA 621, 632; Manotoc vs. CA, 499 SCRA 21)
SUMMONS
When is a defendant deemed to have made a voluntary
Section 1. Clerk to issue summons. Unless the appearance?
complaint is on its face dismissible under
Section 1, Rule 9, the court shall, within five (5) —1. By filing an answer (Guy vs. Gacott, GR No. 206147, January 13,
calendar days from receipt of the initiatory 2016).
pleading and proof of payment of the requisite —2. By asking an affirmative relief from the Court (Reicon Realty
legal fees, direct the clerk of court shall Builders Corp vs. Diamond Dragon, GR No. 204796, February 4,
forthwith to issue the corresponding 2015).
summons to the defendants
When is asking for affirmative relief not deemed
Summons is the writ by which the defendant is notified of the —The act of making a conditional appearance or special appearance
action brought against him (Cano-Gutierrez vs. Gutierrez, 341 SCRA in court to object to the jurisdiction of the court over his person, is
670; Guanzon vs. Arradaza 510 SCRA 309). not deemed a voluntary appearance or voluntary submission to the
jurisdiction of the court.
Summons in civil cases is the counterpart of warrant of arrest in
criminal cases. Under the Rules on Criminal Procedure, when an Effect of Non-Service
information is filed in court, the judge will issue a warrant of arrest. Unless the defendant voluntarily submits to the jurisdiction of the
In civil cases, when a complaint is filed in court, the court will issue court, non-service or irregular service of summons renders null and
what is known as a summons under Section 1. void all subsequent proceedings and issuances in the action from the
order of default up to and including the judgment by default and the
The issuance of summons is not discretionary on the part of the order of execution.
court or the clerk of court but is a mandatory requirement. Section
1 directs that the clerk of court shall issue the corresponding The non-service or invalidity of service of summons may be a ground
summons to the defendant upon for dismissal for lack of jurisdiction over the person of the defending
(a) the filing of the complaint, and party.
(b) the payment of the requisite legal fees.
Note: Where the defendant has already been served with summons
The use of the term “shall” leave no doubt as to the mandatory on the original complaint, no further summons is required on the
character of service of summons. amended complaint if it does not introduce new causes of action.
(Ong Peng vs. Custodio, GR No. 14911, March 25, 1961)
Jurisdiction over the person of the defendant in a civil case is
acquired either by his voluntary appearance or service of summons But where the defendant was declared in default on the original
upon him (Minucher vs. CA GR No. 142963, Feb. 11, 2003) complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on the
Purposes of summons In actions in personam amended complaint as the original complaint was deemed
In action in personam, the purpose of summons is not only withdrawn upon such amendment (Atkins vs. Domingo GR No. L-
a) to notify the defendant of the action against him 19565, March 24, 1923)
b) but also to acquire jurisdiction over his person
(Umandap vs. Sabio, Jr. 339 SCRA 243). General Rule: When an additional defendant is joined, summons
must be served upon him.
The mere filing of the complaint does not enable the court to acquire Exceptions:
jurisdiction over the person of the defendant. By the filing of the 1. When the administrator of a deceased party defendant
complaint and the payment of the required filing and docket fees, substitutes the deceased;
the court acquires jurisdiction only over the person of the plaintiff, 2. Where upon the death of the original defendant his heirs
not over the person of the defendant. Acquisition of jurisdiction over are made parties; and
the latter is accomplished by a valid service of summons upon him 3. In cases of substitution of the deceased
assuming he does not make a prior voluntary appearance in the Note: In these instances, the service of the order of substitution is
action. Service of summons logically follows the filing of the sufficient.
complaint.
In actions in rem or quasi in rem
Service of summons is required even if the defendant is aware of In an action in rem or quasi in rem, jurisdiction over the defendant is
the filing of the action against him. His knowledge of the existence not mandatory and the court acquires jurisdiction over an action as
of a case is not one of the modes by which a court acquired long as it acquires jurisdiction over the res. The purpose ofsummons
jurisdiction over the person of the defendant (Haban vs. Vamenta, in these actions is not the acquisition of jurisdiction over the
33 SCRpersonal defendant but mainly to satisfy the constitutional requirements of
due process (Gomez vs. CA 420 SCRA 98; Biaco vs. Phil. Countryside
Rural Bank 515 SCRA 106; PCI Bank v. Alejandro 533 SCRA 738).
How is jurisdiction over the person of the defendant acquired?
—Jurisdiction over the person of the defendant is acquired Uniformity of the rules on summons
through coercive process, generally by: The rules on summons apply with equal force in actions before the
1) service of summons or through defendant’s RTC and first level courts. This is because the procedure in the first
level shall be the same as in the second level except (a) where a
2) voluntary appearance or submission to the court (Republic vs.
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particular provision expressly or impliedly applies only to either of served all over again based on the amended complaint.
said courts, or (b) in civil cases governed by the Rules on Summary (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
Procedure (Sec. 1, Rule 5). b) If the defendant has already filed an answer to the original
complaint or he has already appeared in the action, and
Section 2 states the contents of a summons: after that the complaint is amended, there is no need of
issuing new summons on the amended complaint. (Ibid;
Sec. 2. Contents. The summons shall be Ong Peng vs. Custodio, L-14911, March 1961)
directed to the defendant, signed by the clerk
of court under seal, and contain: PAN ASIATIC TRAVEL CORP. vs. CA – 164 SCRA 623
HELD: Appearance in the action is not only limited to the filing of
(a) the name of the court and the names of an answer. When defendant files a motion for extension oftime to
the parties to the action; file his answer, that is already an appearance in the action. If a
(b) When authorized by the court upon ex defendant files a motion for Bill of Particulars under Rule 12, that
parte motion, an authorization for the is already considered as an appearance in the action.
plaintiff to serve summons to the
defendant; SEC. 3 By whom served The summons may be
(c) a notice that unless the defendant so served by the sheriff, his deputy, or other proper
answers, plaintiff will take judgment by court officer, and in case of failure of service of
default and may be granted the relief summons by them, the court may authorize the
applied for. plaintiff – to serve the summons – together with
(d) A notice that unless the defendant so the sheriff.
answers plaintiff will take judgment by In cases where summons is to be served outside
default and may be granted the relief the judicial region of the court where the case is
applied for. A copy of the complaint and pending, the plaintiff shall be authorized to cause
order for appointment of guardian ad the service of the summons.
litem, if any, shall be attached to the If the plaintiff is a juridical entity , it shall notify
original and each copy of the summons. the court, in writing, and name its authorized
representative therein, attaching a board
resolution or secretary’s certificate thereto, as
Contents of Summons the case may be, stating that such representative
a) The name of the court and the names of the parties to the is duly authorized to serve the summons on
action; behalf of the plaintiff.
b) When authorized by the court upon ex parte motion, an If the plaintiff misrepresents that the defendant
authorization for the plaintiff to serve summons to the defendant; was served summons, and it is later proved that
c) a direction that the defendant answer within the time fixed no summons was served, the case shall be
by these Rules; dismissed with prejudice, the proceedings shall
d) A notice that unless the defendant so answers plaintiff will be nullified and the plaintiff shall be meted
take judgment by default and may be granted the relief applied for. appropriate sanctions.
A copy of the complaint and order for appointment of guardian ad If summons is returned without being served on
litem, if any, shall be attached to the original and each copy of the any or all the defendants, the court shall order
summons. the plaintiff to cause the service of summons by
— (Sec. 2, Rule 14). other means available under these Rules.
Failure to comply with the order shall cause the
BAR QUESTION: If a defendant is served with summons and dismissal of the initiatory pleading without
later on the complaint is amended by the plaintiff, is there a prejudice.
necessity that another summons be issued and served based on
the amended complaint? Or is the summons of the original RULE 14 Sections 2 and 3
complaint sufficient? — Under Section 2, the plaintiff, upon his ex-parte motion, may
ANS: It depends on whether the amendment was made before or be authorized to serve summons to defendant.
after defendant’s appearance in the action: — That the plaintiff may be authorized to serve summons is
confirmed by Section 3.
Q: What do you mean by the phrase “appearance in the — There are instances by which the plaintiff may be authorized
action”? to serve summons upon the defendant.
A: The best example is, whether the defendant files an — First, in case there is failure to serve summons by the sheriff
answer to the complaint. Appearance in civil cases does not or other proper court officer. In which case, the plaintiff shall
mean that you are there and show your face to the judge. be accompanied by the sheriff.
That isnot the meaning of the word “appearance”. — Second, in cases where summons is to be served outside the
Appearance means filing something in court which judicial region of the court where the case is pending.
would show that the court has jurisdiction over your person,
like the filing of an answer. When the defendant filed an Who will serve summons in case the plaintiff is a corporation?
answer through his lawyer, there is now appearance of the If the plaintiff is a juridical entity , it shall notify the court, in
defendant. writing, and name its authorized representative therein,
a) If the defendant has not filed answer to the original attaching a board resolution or secretary’s certificate thereto,
complaint there must be another summons issued on as the case may be, stating that such representative is duly
the amended complaint. A new summons must be authorized to serve the summons on behalf of the plaintiff.
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(Sec. 3, Rule 14). HELD: The service of summons is valid because the service of
summons is MINISTERIAL. Service of summons may be made at
What if the plaintiff misrepresents that the defendant night as well as during the day, or even on a Sunday or holiday
received summons? because of its ministerial character.
There is repercussion if plaintiff misrepresents on the service Section 4. Validity of summons and Issuance of
of summons on the defendant. The case shall be dismissed alias summons. — Summons shall remain valid
with prejudice, the proceedings shall be nullified and the until duly served, unless it is recalled by the
plaintiff shall be meted appropriate sanctions. (Sec. 3, Rule court. In case of loss or destruction of
14). summons, the court may upon motion, issue
an alias summons. There is failure of service
What if summons cannot be served upon all or any of the after unsuccessful attempts to personally
defendants? serve the summons on the defendant on his
If summons is returned without being served on any or all address indicated in the complaint.
the defendants, the court shall order the plaintiff to cause Substituted service should be in the manner
the service of summons by other means available under provided under Section 6 of this Rule. (5)
these Rules.
Failure to comply with the order shall cause the dismissal of When is there failure of service of summons?
the initiatory pleading without prejudice (Sec. 3, Rule 14). —There is failure of service after unsuccessful attempts to
personally serve the summons on the defendant on his address
Q: Who can serve summons? Who are authorized by law to serve indicated in the complaint. (Sec. 8, Rule 14).
summons? —Thus, there shall be substituted of service in accordance with
Section 6.
A: Under Section 3, the following:
1) Sheriff; Section 5. Service in person on defendant. —
2) Deputy sheriff; Whenever practicable, the summons shall be
3) Other proper court officer (court employees); or served by handling a copy thereof to the
4) Plaintiff- if authorized by the court together with the defendant in person and informing the
sheriff defendant that he or she is being served, or, if
5) For justifiable reasons, by any suitable person authorized he or she refuses to receive and sign for it, by
by the court issuing the summons. leaving the summons within the view and in
6) In cases where summons is to be served outside the judicial presence of the defendant. (6)
region of the court where the case is pending, the plaintiff
shall be authorized to cause the service of the —Under Section of the new Rules, there is added requirement
summons.(Sec. 3, Rule 14). in serving summons upon the person of defendant.
Note: The enumeration is exclusive —Aside from just handing a copy thereof to the defendant in
NOTE: Policemen cannot validly serve summons unless authorized person, the server has to inform the defendant he or she is
by court. (Sequito vs. Letrondo, L-11580, July 20, 1959) being served. If he or she refuses to receive and sign for it, by
EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I don’t leaving the summons within the view and in presence of the
think the sheriff would like to go there. But there are people who go defendant.
there, like the natives. So, Barangay Captain Acelar will be asked to Section 6. Substituted service. — If, for
be deputized by the court to serve and he will be taught how to do justifiable causes, the defendant cannot be
it. So, he will become a sort of special court officer for that purpose. served personally after at least three (3)
But there must be a court order. attempts on two (2) separate dates, service
may be effected:
SEQUITO vs. LETRONDO – L-11580, July 20, 1959 (a) By leaving copies of the summons at the
FACTS: The summons was served by a policeman in a remote defendant's residence to a person at least
area and the question that was asked is whether he is eighteen (18) years of age and of sufficient
authorized. discretion residing therein;
HELD: NO, he is not authorized. The policeman is not a (b) By leaving copies of the summons at
sheriff, he is not a deputy sheriff, and he is not a proper court defendant's office or regular place of business
officer. He belongs to the PNP. And PNP is under the with some competent person in charge
executive branch and not a part of the judiciary.However, thereof.
there is no problem if he is the only one in that area whom A competent person includes, but not limited
we can depend on. All you have to do is get a court order to, one who customarily receives
deputizing the police officer. So, he will fall under no. 3. But correspondences for the defendant;
without such court order, he is not among those mentioned (c) By leaving copies of the summons, if
in Section 3. refused entry upon making his or her authority
and purpose known, with any of the officers of
Q: When summons is served, must it be on a weekday and not on the homeowner’s association or condominium
Saturday, Sunday, or holiday, and must be within office hours? corporation, or its chief security officer in
Can you challenge the validity of the service of summons on the charge of the community or the building
ground that it was not effected on a working day or during office where the defendant may be found; and
hours? (d) By sending an electronic mail to the
A: In the case of defendant’s electronic mail address, if allowed
LAUS vs. COURT OF APPEALS – 214 SCRA 688 by the court. (7)
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attained the age of full legal capacity (18 years old) and is
This section specifically provides that there must be three (2) considered to have enough discernment to understand the
attempts on two (2) different dates to serve summons importance of a summons. Discretion" is defined as "the ability
personally to the defendant before resort to substituted to make decisions which represent a responsible choice and for
service. This new requirement was derived from the case of which an understanding of what is lawful, right or wise may be
Manotoc vs. CA, G.R. No. 130974. August 16, 2006. presupposed. Thus, to be of sufficient discretion, such person
must know how to read and understand English to comprehend
In the ROC, Manotoc case is already incorporated. the import of the summons, and fully realize the need to deliver
the summons and complaint to the defendant at the earliest
Nature of substituted service possible time for the person to take appropriate action.
—Substituted service is a method extraordinary in character, (Manotoc vs. CA, supra).
hence, may be used only as prescribed and in the
circumstances authorized by statute (Chu vs. Mach Asia What is the effect if the defendant prevents service of
Trading Corp, 694 SCRA 302, 309-310). summons
—Hence, return which merely states the alleged whereabouts —If the defendant consciously prevented the service of
of the defendants, without indicating that such information summons upon his person, then the summons shall be
was verified and without specifying the efforts exerted to considered served upon his person(Robinson vs. Miralles, 510
serve the summons, is not enough for compliance. So is mere SCRA 678).
general statement that such efforts were made (Jose vs.
Boyon, 414 SCRA 216). For substituted service of summons to be valid, it is necessary
to establish the following:
There must be showing of impossibility of service in the 1) The impossibility of the personal service of summons
return within a reasonable time;
— The Court ruled that for substituted service of summons to 2) The efforts exerted to locate the person to be served;
be available, the impossibility of service in person must be and
shown. There must be several attempts by the sheriff to 3) Service upon a person of sufficient age and discretion
personally serve the summons within a reasonable period of residing in the same place as defendant or some competent
time which eventually resulted failure to personally serve it in person in charge of his office or regular place of business.
person. “Several attempts” means at least three (3) tries,
preferably on at least two different dates. In addition, the In substituted service, the sheriff's return must show that an
sheriff must cite why such efforts were unsuccessful. It is only effort or attempt was exerted to personally serve the summons
then that impossibility of service can be confirmed (Manotoc on the defendant and that the same failed. (Sps. Venturanza vs.
vs. CA, supra). CA GR. No. 77760, Dedc. 11, 1987)
What is the meaning of “reasonable time” under the rules? Within a reasonable time has been interpreted to contemplate a
—Reasonable time is defined as so much time as is necessary period of time longer than that demarcated by the word
under the circumstances for a reasonably prudent and “prompt” and presupposes that a prior attempt at personal
diligent man to do, conveniently, what the contract or duty service had failed (Laus vs. CA 219 SCRA 688).
requires that should be done, having a regard for the rights
and possibility of loss, if any[,] to the other party. Under the The case of Manotoc vs. CA 499 SCRA 21, is more specific:
Rules, the service of summons has no set period. “….Reasonable time is defined as so much time as is necessary
—However, when the court, clerk of court, or the plaintiff asks under the circumstances for a reasonably prudent and diligent
the sheriff to make the return of the summons and the latter man to do, conveniently, what the contract or duty requires that
submits the return of summons, then the validity of the should be done….Under the Rules, the service of summons has
summons lapses. The plaintiff may then ask for an alias no set period….Since the defendant is expected to try to avoid
summons if the service of summons has failed. What then is a and evade service of summons, the sheriff must be resourceful,
reasonable time for the sheriff to effect a personal service in persevering, canny, and diligent in serving the process on the
order to demonstrate impossibility of prompt service? To the defendant.” For substituted service to be available there must
plaintiff, reasonable time means no more than seven (7) days be several attempts by the sheriff to personally serve the
since an expeditious processing of a complaint is what a summons within a reasonable period…”Several attempts”
plaintiff wants. means at least three (3) tries, preferably on at least two different
--To the sheriff, reasonable time means 15 to 30 days because dates. In addition the sheriff must cite why such efforts were
at the end of the month, it is a practice for the branch clerk of unsuccessful. It is only then that impossibility of service can be
court to require the sheriff to submit a return of the summons confirmed or accepted.
assigned to the sheriff for service. The Sheriffs Return
provides data to the Clerk of Court, which the clerk uses in the “The Sheriff must describe in the Return of Summons the facts
Monthly Report of Cases to be submitted to the Office of the and circumstances surrounding the attempted personal service
Court Administrator within the first ten (10) days of the (citing Domagas vs. Jensen, 448 SCRA 663). The efforts made to
succeeding month. Thus, one month from the issuance of find the defendant and the reason behind the failure must be
summons can be considered reasonable time with regard to clearly narrated in detail in the Return. The date and time of the
personal service on the defendant (OCA vs. Cabrera- Faller, attempts on personal service, the inquiries made to locate the
A.M. Nos. RTJ-11-2301-2303, January 16, 2018). defendant,
the name/s of the alleged occupants of the alleged residence or
Who is a person of suitable age or discretion? house of the defendant and all other acts done, though futile, to
— A person of suitable age and discretion is one who has serve the summons on the defendant must be specified in the
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Amilhamja, Adj.
Return to justify substituted service….” require the sheriff or any authorized server to verify that the
summons left in the defendant’s residence or office was actually
A mere general claim or statement in the Sheriff’s Return that delivered to the defendant (Montalban vs. Maximo, supra).
the server had made “several attempts” to serve the
summons, without making reference to the details of facts The proof of service of summons must
and circumstances surrounding such attempts, does not (a) indicate the impossibility of service of summons within a
comply with the rules on substituted service (Manotoc vs. CA, reasonable time;
supra). A Return which merely states the alleged whereabouts (b) specify the efforts exerted to locate the defendant; and
of the defendants without indicating that such information (c) state that the summons was served upon a person of
was verified and without specifying the efforts exerted to sufficient age and discretion who is residing in the address, or
serve the summons is not enough for compliance. So is a mere who is in charge of the officer or regular place of business of the
general statement that such efforts were made (Jose vs. defendant.
Boyon 414 SCRA 216).
It is likewise required that the pertinent facts proving these
“A person of suitable age and discretion” defined circumstances be stated in the proof of service or in the officer’s
return. The failure to comply faithfully, strictly and fully with all
“A person of suitable age and discretion is one who has the foregoing requirements of substituted service renders the
attained the full age of full legal capacity (18 years old) and is service of summons ineffective (Jose vs. Bayon 414 SCRA 216;
considered to have enough discernment to understand the Miranda vs. CA 326 SCRA 278).
importance of summons. The Manotoc case explains:
Section 7. Service upon entity without juridical
“Discretion is defined as the ability to make decisions which personality. — When persons associated in an
represent a responsible choice and for which an entity without juridical personality are sued
understanding of what is lawful, right or wise may be under the name by which they are generally or
presupposed. Thus, to be of sufficient age and discretion, such commonly known, service may be effected
person must know how to read and understand English to upon all the defendants by serving upon any
comprehend the import of the summons, and fully realize the one of them, or upon the person in charge of
need to deliver the summons and complaint to the defendant the office or place of business maintained in
at the earliest possible time for the person to take appropriate such name. But such service shall not bind
action. Thus, the person must have a ‘relation of confidence’ individually any person whose connection
to the defendant, ensuring that the latter would receive or at with the entity has, upon due notice, been
least be notified of the receipt of summons. The sheriff must severed before the action was filed. (8)
therefore, determine if the person found in the alleged
dwelling or residence of defendant is of legal age, what the How is service of summons effected upon an entity without a
recipient’s relationship with the defendant is, and whether personality
said person comprehends the significance of the receipt of the — When persons associated in an entity without juridical
summons and his duty to deliver it to the defendant or at least personality are sued under the name by which they are generally
notify the defendant of said receipt of summons. These or commonly known, service may be effected upon all the
matters must be clearly and specifically described in the defendants by serving upon any one of them, or upon the person
Return of Summons.” in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person
“A competent person in charge of the office or regular place whose connection with the entity has, upon due notice, been
of business” defined severed before the action was brought. (Sec. 7, Rule 14).
“A competent person in charge of the office or regular place Section 8. Service upon prisoners. — When the
of business” must be the one managing the office or business defendant is a prisoner confined in a jail or
of defendant, such as the president or manager; and such institution, service shall be effected upon him
individual must have sufficient knowledge to understand the or her by the officer having the management
obligation of the defendant in the summons, its importance, of such jail or institution who is deemed
and the prejudicial effects arising from inaction on the deputized as a special sheriff for said purpose.
summons. Again, the details must be contained in the Return The jail warden shall file a return within five
(Manotoc vs. CA) (5) calendar days from service of summons to
the defendant. (9)
It is not necessary that the person in charge of the defendant’s
regular place of business be specifically authorized to receive How is service of summons effected upon a prisoner?
the summons. It is enough that he appears to be in charge — When the defendant is a prisoner confined in a jail or
(Guanzon v. Arradaza 510 SCRA 309). institution, service shall be effected upon him or her by the
Effect when substituted service is valid but defendant failed officer having the management of such jail or institution who is
to actually receive summons deemed deputized as a special sheriff for said purpose. The jail
warden shall file a return within five (5) calendar days from
Where the substituted service has been validly served, its service of summons to the defendant. (Sec. 8, Rule 14).
validity is not affected by the defendant’s failure to actually
receive the summons from the person with whom the
summons had been left. It is immaterial that the defendant
does not in fact receive actual notice. The rule does not
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correspondence for the defendant at its

Section 9. Service consistent with principal office.
international conventions. — Service may In case the domestic juridical entity is under
be made through methods which are receivership or liquidation, service of
consistent with established international summons shall be made on the receiver or
conventions to which the Philippines is a liquidator, as the case may be.
party. (n) Should there be a refusal on the part of the
persons abovementioned to receive
Section 9. Service consistent with international conventions. summons despite at least three (3) attempts
— Service may be made through methods which are on two (2) separate dates, service may be
consistent with established international conventions to made electronically, if allowed by the court, as
which the Philippines is a party. (n) provided under Section 6 of this rule. (11)
— This is a new provision.
—Service of summons may be effected through international The new formulation of this section is a great improvement to
convention which the Philippine is a party. the old Section 12.
— This includes Convention of 15 November 1965 on the — First, the persons who are authorized to receive summons in
Service Abroad of Judicial and Extrajudicial Documents in Civil behalf of the corporation which are, the president, managing
or Commercial Matters. partner, general partner, corporate secretary, treasurer or in-
house counsel, may be served whenever they may be found.
Section 10. Service upon minors and Summons may also be served on their secretaries in their
incompetents. — When the defendant is a absence. (Nation Petroleum Gas vs. RCBC, GR No. 183370,
minor, insane or otherwise an incompetent August 17, 2015)
person, service of summons shall be made —Second, if such service cannot be made upon any of the
upon him or her personally and on his legal foregoing persons, it shall be made upon the person who
guardian if he or she has one, or if none his customarily receives correspondence for the defendant at its
or her guardian ad litem whose principal office.
appointment shall be applied for by the —Third, in case the domestic juridical entity is under
plaintiff. In the case of a minor, service shall receivership or liquidation, service of summons shall be made on
may also be made on his or her parent or the receiver or liquidator, as the case may be.
guardian. — The ruling therefore Nation Petroleum Gas vs. RCBC, GR No.
183370, August 17, 2015 and other companion cases are not
How is service of summons effected upon minors? anymore controlling.
— When the defendant is a minor, insane or otherwise an — Fourth, should there be a refusal on the part of the persons
incompetent person, service of summons shall be made upon abovementioned to receive summons despite at least three (3)
him or her personally and on his legal guardian if he or she has attempts on two (2) separate dates, service may be made
one, or if none his or her guardian ad litem whose electronically, if allowed by the court, as provided under Section
appointment shall be applied for by the plaintiff. In the case 6 of this rule.
of a minor, service shall may also be made on his or her parent — It is now clear that substituted service may be effected even
or guardian. (Sec. 10, Rule 14). if the defendant is a corporation. What is implied in the case of
Carson Realty & Management Corp vs. Red Robin Security
Section 11. Service upon spouses. — When Agency, GR No. 225035, February 8, 2017 is now express in the
spouses are sued jointly, service of amendment.
summons should be made to each spouse — But the manner of substituted service is service through
individually. (n) electronic means.
How is service of summons effected upon spouses? Take note:

—When spouses are sued jointly, service of summons should —The ruling in (Nation Petroleun Gas vs. RCBC, GR No. 183370,
be made to each spouse individually. (Sec. 10, Rule 14). August 17, 2015; 7107 Islands Publishing, Inc., vs. the house of
Printers Corp., GR No. 193420, October 14, 2015; G.V. Florida
Emphasis on this for bar qs: Transpor t vs. Tiara Commercial Corp, GR 201378, Oct. 18, 2017)
that service of summons on an officer other than those
Section 12. Service upon domestic private enumerated in Sec. 11 of rule 14 is invalid is not anymore
juridical entity. — When the defendant is a controlling.
corporation, partnership or association
organized under the laws of the Philippines Can substituted service be effected if the defendant is a
with a juridical personality, service may be corporation?
made on the president, managing partner, —In Carson Realty & Management Corp vs. Red Robin Security
general manager, corporate secretary, Agency, GR No. 225035, February 8, 2017, one of the issues that
treasurer, or in-house counsel of the cropped up is whether substituted service can be effected if the
corporation wherever they may be found, defendant is a corporation.
or in their absence or unavailability, their — The SC ruled that the substituted service effected by the
secretaries. sheriff is valid. It should be noted that there were several
If such service cannot be made upon any of attempts made by the sheriff to serve the summons upon the
the foregoing persons, it shall be made president of the company but to no avail.
upon the person who customarily receives
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Amilhamja, Adj.
Problem
—Plaintiff filed a case against a corporation. Sheriff issued Section 14. Service upon foreign private
summons. The summons was received by the secretary of the juridical entities. — When the defendant is a
corporate secretary upon the instruction of the corporate foreign private juridical entity which has
secretary. transacted or is doing business in the
—Is there a valid service of summons? Philippines, as defined by law, service may be
Answer: made on its resident agent designated in
—It is clear, therefore, that Abante, in so receiving the accordance with law for that purpose, or, if
summons, did so in representation of Ang who, as corporate there be no such agent, on the government
secretary, is one of the officers competent under the Rules of official designated by law to that effect, or on
Court to receive summons on behalf of a private juridical any of its officers or agents, directors or
person. Thus, while it may be true that there was no direct, trustees within the Philippines.
physical handing of the summons to Ang, the latter could at If the foreign private juridical entity is not
least be charged with having constructively received the registered in the Philippines, or has no
same, which in Our view, amounts to a valid service of resident agent but has transacted or is doing
summons (Nation Petroleun Gas vs. RCBC, GR No. 183370, business in it, as defined by law, such service
August 17, 2015). may, with leave of court, be effected outside
the Philippines through any of the following
How may improper service of summons be cured? means:
— By proof of actual receipt. (a) By personal service coursed through the
— "In the case at bar, there is no question that summons was appropriate court in the foreign country with
timely issued and received by private respondent. In fact, he the assistance of the department of foreign
never denied actual receipt of such summons but confined affairs;
himself to the argument that the Sheriff should prove that (b) By publication once in a newspaper of
personal service was first made before resorting to general circulation in the country where the
substituted service. x x x x defendant may be found and by serving a copy
— On the same matter, Moran has this to say: of the summons and the court order by
— "Irregularities of this kind may, however, be cured by proof registered mail at the last known address of
that the copies have actually been delivered to the defendant, the defendant;
which is equivalent to personal service.” (Mapa vs. Court of (c) By facsimile;
Appeals, 79374 & 82968, October 2, 1992). (d) By electronic means with the prescribed
proof of service; or
What do you mean by domestic? A corporation or association (e) By such other means as the court, in its
organized under Philippine laws. discretion, may direct. (12)
Now, how do you serve summons to a corporation? Actually, they
have no physical existence, they only exist by legal friction. How is service of summons effected upon a foreign private
Ordinarily summons must be served to a human being, to entity?
somebody who is supposed to be the representatives. Therefore, — When the defendant is a foreign private juridical entity which
common sense will tell that in case of a corporation, you have to has transacted or is doing business in the Philippines, as defined
serve the summons through people who run the corporation. by law, service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such
Q: To whom do you serve summons if it is a corporation? agent, on the government official designated by law to that
A: In the case of a corporation, summons is served upon its officers. effect, or on any of its officers or agents, directors or trustees
within the Philippines. (Sec. 12, Rule 14).
Q: Who are these officers?
A: President, managing partner, general manager, corporate
Who is the person designated by law?
secretary, treasurer, in-house counsel.
—As a condition precedent to the issuance of the license to
transact business in the Philippines by any foreign corporation
that such corporation file with the Securities and Exchange
Section 13. Duty of counsel of record. —
Commission a written power of attorney designating some
Where the summons is improperly served
person who must be a resident of the Philippines, on whom any
and a lawyer makes a special appearance on
summons and other legal processes may be served in all actions
behalf of the defendant to, among others,
or other legal proceedings against such corporation, and
question the validity of service of summons,
consenting that service upon such resident agent shall be
the counsel shall be deputized by the court
admitted and held as valid as if served upon the duly authorized
to serve summons on his client. (n)
officers of the foreign corporation at its home office (Sec. 129,
Corporation Code).
-Meaning, lawyer has no loophole!
-its harder to dismiss on ground that court did not
Please take NOTE:
acquire jurisdiction over defendant because there is
—It has been held that when a foreign corporation has
improper service of summons.
designated a person to receive summons on its behalf pursuant
to the Corporation Code, that designation is exclusive and
service of summons on any other person is inefficacious (H.B.
Zachry Company International vs. C A, 232 SCRA 329).
124
Amilhamja, Adj.
How is service of summons effected upon a foreign private said efforts failed; hence resort to substituted service. Since no such
entity not registered in the Philippines or with no resident explanation was made, there was a failure to faithfully, strictly, and
agent? fully comply with the requirements of substituted service (Miranda vs.
1. By personal service coursed through the appropriate court Court of Appeals, 326 SCRA 278).
in the foreign country with the assistance of the department
of foreign affairs; FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES
2. By publication once in a newspaper of general circulation in Finally, going back to foreign private juridical entity, take note that
the country where the defendant may be found and by under the law, the foreign private juridical entity is one doing
serving a copy of the summons and the court order by
business in the Philippines. So, if a foreign corporation is not doing
registered mail at the last known address of the defendant;
business in the Philippines, it cannot be sued, just like a non- resident
3. By facsimile;
defendant because the court can never acquire jurisdiction over that
4. By electronic means with the prescribed proof of service;
person or foreign corporation. We know that ‘no?
5. By such other means as the court, in its discretion, may
direct (Sec. 12, Rule 14).
And the perennial debate is, when is a foreign private corporation
doing or not doing any business in the Philippines? I think the
-Emphasis on this:
Corporation Law has so many cases along that line.
How will summons be effected upon a defendant whose
identity or whereabouts are unknown?
EXAMPLE: A Filipino businessman wanted to buy machines where
—In any action where the defendant is designated as an
there is only one manufacturer and supplier which is a corporation
unknown owner, or the like, or whenever his or her
in Europe. This corporation has no office in the Philippines. The
whereabouts are unknown and cannot be ascertained by
Filipino businessman contracted with the foreign corporation. He
diligent inquiry, within ninety (90) calendar days from the
ordered machineries. The foreign corporation sent its people to
commencement of the action, service may, by leave of court,
deliver the machineries. They stayed in the Philippines gor a while to
be effected upon him or her by publication in a newspaper of
check the machines and to teach the Filipinos how to run it.
general circulation and in such places and for such time as the
court may order. XPN to the GR
Q: Now, can that corporation be used in the Philippine courts?
A: NO, because that foreign corporation is not doing business in
Section 15. Service upon public
the Philippines. Section 12 does not refer to a foreign corporation
corporations. — When the defendant is the
with a single isolated, casual transaction. In the cases of
Republic of the Philippines, service may be
effected on the Solicitor General; in case of
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO GR L-7154
a province, city or municipality, or like
public corporations, service may be October 23, 1954
effected on its executive head, or on such HELD: “‘Doing business’ is construed to mean such continuity
other officer or officers as the law or the of conduct and intention to establish a continuous business. An
court may direct. (13) isolated transaction, or transactions which are occasional,
incidental or casual and which do not evince intent to conduct
How is service upon the Republic of the Philippines effected? continuous business do not constitute ‘doing business in the
—When the defendant the Republic of the Philippines, service may Philippines.’”
be effected on the Solicitor General.
—In case of a province, city or municipality, or like public “In order that a foreign corporation may be regarded as doing
corporations, service may be effected on its executive head, or on business in the Philippines, there must be continuity of conduct
such other officer or officers as the law or the court may direct. and intention to establish a continuous business, such as the
(Sec. 15, Rule 14). appointment of a local agent, and not one of a temporary
character.”
How is service upon an unincorporated government agency
effected? FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD. –
—Jurisprudence tells that when a suit is directed against an November 30, 1962
unincorporated agency, it is as if directed against the agency’s HELD: “Where a single act or transaction of a foreign
principal which is the Republic of the Philippines, thus summons corporation is not merely incidental or casual, but is of such
should be served upon the Solicitor General (Republic vs. Domingo, character as distinctly to indicate a purpose on the part of the
657 SCR A 621, 636). corporation to do other business in the Philippines, and to
make the Philippines a base of operations for the conduct of a
Take note: part of the corporation’s ordinary business, the corporation
—Service of summons in the person of the defendant is generally may be said to be ‘doing business in the Philippines.’”
preferred over substituted service (Nation Petroleum Gas, Inc., vs. So, under the rules, a foreign corporation not doing business
RCBC, G.R. No. 188370, August 17, 2015). It is only when summons in the Philippines cannot be sued. If it enters into a contract with a
cannot be served personally within a reasonable period of time that Filipino business man, it is not actually doing business. Isa lang eh!
substituted service may be resorted to (Chu vs. Mach Asia Trading So, technically, that foreign corporation cannot be sued in the
Corp., 694 SCRA 302, 308). Philippines. Your remedy is to go to Europe and sue thatcorporation
there. In the case of
Illustration of the Principle LINGER AND FISCHER vs. IAC – 125 SCRA 522
—The court reiterated the rule that the impossibility of prompt, FACTS: A Philippine corporation entered into a contract with a
personal service should be shown by stating in the proof of service foreign corporation and then their agreement says the foreign
that efforts were made to find the defendant personally and that corporation agrees to be sued in the Philippines. So practically,
125
Amilhamja, Adj.
puwede. And the problem now is, to whom will you serve the circulation in such places and for such time as
summons? the court may order, in which case a copy of
When a foreign corporation not doing business in he the summons and order of the court shall be
Philippines agrees to be sued in the Philippines, how do you sent by registered mail to the last known
serve summons? Is Section 12 applicable? address of the defendant, or in any other
HELD: NO, Section 12 is not applicable because in Section 12, manner the court may deem sufficient. Any
the premise is, the foreign private corporation is doing business order granting such leave shall specify a
in the Philippines. So Section 12 does not apply. So, how shall reasonable time, which shall not be less than
we serve the summons? sixty (60) calendar days after notice, within
which the defendant must answer. (15)
Section 16. Service upon defendant whose
identity or whereabouts are unknown. — In
any action where the defendant is Section 18. Residents temporarily out of the
designated as an unknown owner, or the Philippines. — When any action is commenced
like, or whenever his or her whereabouts against a defendant who ordinarily resides
are unknown and cannot be ascertained by within the Philippines, but who is temporarily
diligent inquiry, within ninety (90) calendar out of it, service may, by leave of court, be also
days from the commencement of the effected out of the Philippines, as under the
action, service may, by leave of court, be preceding section. (16)
effected upon him or her by publication in a
newspaper of general circulation and in When is extra-territorial service effected?
such places and for such time as the court
may order.
-If the action is instituted against a defendant, designated as an

unknown owner, or the like, or whenever his or her
whereabouts are unknown and cannot be ascertained by
diligent inquiry, service of summons, by leave of court, be
effected through publication in a newspaper of general
circulation and in such places and for such time as the court
may order.
-However, such kind of service of summons can only be
effected if there is showing that defendant’s whereabouts
cannot ascertained by diligent inquiry within 90 days from the
commencement of the suit.
-Any order granting such leave shall specify a reasonable time,
The SC in several cases applies Section 15, Rule 14 to actions in
which shall not be less than sixty (60) calendar days after
rem or quasi in rem (Jose vs. Boyon, 414 SCRA 216)
notice, within which the defendant must answer.
-not available in action in personam
—Thus, in Section 15 of Rule 14 authorizes summons by
What are the modes of extraterritorial service?
publication in any action and the rule obviously does not
1. Personal Service under Section 6, Rule 14
distinguish whether the action is in personam, in rem or quasi
2. Publication in newspaper in such place Section 17, Rule 14
in rem. The tenor of the rule authorizes summons by
3. By international convention by Philippine is a party
publication whatever the action may be as long as the identity
4. Other manner the court may deem sufficient
of the defendant is unknown or his whereabouts are unknown
(Santos vs. PNOC, 566 SCRA 272).
Extra-territorial service is not available in an action in personam
(Kawasaki Port Service Corp vs. Amores 199 SCRA 230, 237).
Section 17. Extraterritorial service. — When
Extra-territorial service is not available in an action in personam
the defendant does not reside and is not
(Kawasaki Port Service Corp vs. Amores 199 SCRA 230, 237).
found in the Philippines, and the action
affects the personal status of the plaintiff or
Problem
relates to, or the subject of which is,
—P filed with the RTC a tort case against D. The sheriff went to D’s
property within the Philippines, in which
resident and served the summons and complaint on D’s husband,
the defendant has or claims a lien or
since D was temporarily out of the country. Subsequently, D filed a
interest, actual or contingent, or in which
motion to dismiss on the ground that she was not properly served
the relief demanded consists, wholly or in
with summons since she was temporary out of the country and
part, in excluding the defendant from any
hence, the service of summons on her should conform to Section
interest therein, or the property of the
16, Rule 14 of the Rules of Court which requires extraterritorial
defendant has been attached within the
service. Should RTC grant the motion to dismiss?
Philippines, service may, by leave of court,
—The RTC should not grant the motion to dismiss.
be effected out of the Philippines by
—The SC rule that in the case of resident temporarily out of the
personal service as under section 6;
Philippines, extraterritorial service is not mandatory since Section
or as provided by international conventions
16 of Rule 14 uses the word “may” and thus, substituted service of
to which the Philippines is a party; or by
summons may be resorted to (Palma vs. Galvez, March 10, 2010).
publication in a newspaper of general
126
Amilhamja, Adj.
Extraterritorial service of summons under this Section 15 applies (30) days” was considered reasonable time.
when he following requisites concur: — The server shall make a return within five (5) calendar days from
(a) the defendant is a non-resident; service to the court and serve a copy of the return to the plaintiff’s
(b) he is not found in the Philippines; and counsel, personally, by registered mail, or by electronic means
(c) the action against him is either in rem or quasi in rem authorized by the Rules.
(Jose vs. Boyon 414 SCRA 216).
— The rule now specifies what should be stated in the return in
A fundamental concept to be remembered in extraterritorial service case of substituted service:
of summons is that it does not apply to a defendant who isa resident 1. The impossibility of prompt personal service within a period of
of the Philippines. It does not also apply to an action in personam thirty (30) calendar days from issue and receipt of summons OCA
(Kawasaki Port Service Corporation vs. Amores 199 SCRA 230; Banco vs. Cabrera-Faller, A.M. Nos. RTJ-11- 2301-2303, January 16, 2018;
do Brasil vs. CA 333 SCRA 545 [2000]) . 2. The date and time of the three (3) attempts on at least (2) two
separate dates to cause personal service and the details of the
The possible exception to this rule is provided for under Sec. 16 inquiries made to locate the defendant residing thereat (Manotoc
(residents temporarily out of the Philippines) where service may,by vs. CA);
leave of court, be effected out of the Philippines as under the 3. The name of the person at least eighteen (18) years of age and
preceding section.” The preceding section is Section 15. Note also of sufficient discretion residing thereat: nameof competent person
that Sec. 16 refers to “any action”, hence, either in rem or in in charge of the defendant’s office or regular place of business, or
personam. name of the officer of the homeowner’s association or
condominium corporation or its chief security officer in charge of
Section 19. Leave of court. — Any the community or building where the defendant may be found.
application to the court under this Rule for
leave to effect service in any manner for Sec. 21. Proof of service. — The proof of
which leave of court is necessary shall be service of a summons shall be made in writing
made by motion in writing, supported by by the server and shall set forth the manner,
affidavit of the plaintiff or some person on place, and date of service; shall specify any
his behalf, setting forth the grounds for the papers which have been served with the
application. (17) process and the name of the person who
received the same; and shall be sworn to when
Section 20. Return. — Within thirty (30) made by a person other than a sheriff or his or
calendar days from issuance of summons by her deputy.
the clerk of court and receipt thereof, the If summons was served by electronic mail, a
sheriff or process server, or person printout of said e- mail, with a copy of the
authorized by the court, shall complete its summons as served, and the affidavit of the
service. Within five (5) calendar days from person mailing, shall constitute as proof of
service of summons, the server shall file service. (18)
with the court and serve a copy of the
return to the plaintiff’s counsel, personally, This is called a SHERIFF’S RETURN where the sheriff will state the
by registered mail, or by electronic means manner (personal or substituted, publication); place and date; to
authorized by the Rules. whom served. Then you specify that you serve also the complaint.
Should be substituted service have been Name of person who received the same.
effected, the return shall state:
(1) The impossibility of prompt personal Q: Must the return be sworn to?
service within a period of thirty (30) A: NO NEED, except when made by a person other than a
calendar days from issue and receipt of sheriff or his deputy. Remember that summons can be
summons; served by other authorized by court to do so
(2) The date and time of the three (3)
attempts on at least (2) two separate dates Section 22. Proof of service by publication. —
to cause personal service and the details of If the service has been made by publication,
the inquiries made to locate the defendant service may be proved by the affidavit of the
residing thereat; and publisher, his foreman or principal clerk, or of
(3) The name of the person at least eighteen the editor, business or advertising manager, to
(18) years of age and of sufficient discretion which affidavit a copy of the publication shall
residing thereat: name of competent be attached and by an affidavit showing the
person in charge of the defendant’s office deposit of a copy of the summons and order
or regular place of business, or name of the for publication in the post office, postage
officer of the homeowner’s association or prepaid, directed to the defendant by
condominium corporation or its chief registered mail to his or her last known
security officer in charge of the community address. (19)
or building where the defendant may be
found.
— There is a mandate in this section that summon must be

served within thirty (30) days. In the case of OCA vs. Cabrera-
Faller, A.M. Nos. RTJ-11-2301-2303, January 16, 2018, “thirty
127
Amilhamja, Adj.
Section 23. Voluntary appearance. — The

defendant's voluntary appearance in the
action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the
defendant shall be deemed a voluntary
appearance. (20)
-Sec. 23. Has no use anymore because it is used only as a ground

for affirmative defense.
How is jurisdiction over the person of the defendant acquired?

-Jurisdiction over the person of the defendant is acquired through
coercive process, generally by 1) service of summons or through
defendant’s 2) voluntary appearance or submission to the court
(Republic vs. Domingo, 657 SCRA 621, 632; Manotoc vs. CA, 499
SCRA 21)
When is defendant deemed to have made a voluntary

appearance?
1. By filing an answer (Guy vs. Gacott, GR No. 206147, January 13,
2016).
2. By asking an affirmative relief from the Court (Reicon Realty
Builders Corp vs. Diamond Dragon, GR No. 204796, February 4,
2015).
When is asking for affirmative relief not deemed to be a

voluntary appearance?
—The act of making a conditional appearance or special
appearance in court to object to the jurisdiction of the court over
his person, is not deemed a voluntary appearance or voluntary
submission to the jurisdiction of the court.
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Amilhamja, Adj.
Rule 15 na. So you can move orally for continuance. And the judge will not
require you to have that typed pa. There is no more time to do that.
Anyway, it is officially recorded.
MOTIONS
Forms of Motion
What is a motion? Define a motion.
- All motions shall be in writing except those made in open court or
-asking something from Court but it is not a pleading
in the course of a hearing or trial.
A motion made in open court or in the course of a hearing or trial
SECTION 1. Motion defined. A motion is an
should immediately be resolved in open court, after the adverse
application for relief other than by a pleading.
party is given the opportunity
to argue his or her opposition thereto.
Kinds of Motions
1) Motion Ex Parte is made without the presence or a
Is hearing necessary for the motion?
notification to the other party because the question
—Generally NO.
generally presented is not debatable, like a Motion for
---Optional on part of court whether or not it would conduct a
Extension of Time to File Pleadings;
hearing
2) Motion of Course is where a movant is entitled to the relief
—However, when a motion is based on facts not appearing on
or remedy sought as a matter of discretion on the part of the
record, the court may hear the matter on affidavits or depositions
court;
presented by the respective parties, but the court may direct that
3) Litigated Motion is one made with notice to the adverse
the matter be heard wholly or partly on oral testimony or
party to give an opportunity to oppose, like a Motion to
depositions (Section 2, Rule 15).
Dismiss);
4) Special Motion is a one addressed to the discretion of the
Effect if there is no notice of hearing
court.
—Jurisprudence holds that this requirement of notice of hearing
applies to a motion for reconsideration. The requirement of notice is
General rule: A motion cannot pray for judgment.
an integral component of procedural due process that seeks to avoid
In a motion, the party is asking the court for a favor other than what
surprises that be sprung upon the adverse party who must be given
is contained in the pleading. Usually, the main relief is prayed for in
time to study and meet the motion before a resolution by the court.
the pleading, like “Judgment be rendered in favor of the plaintiff,”
A motion unaccompanied by notice of hearing is considered a mere
or, “The complaint be dismissed.” That is what you prayin your
scrap of paper that does not toll the running of period to appeal
complaint or in your answer.
(Guzman vs. Guzman, 693 SCRA 328, 329, March 13, 2013; Flores vs.
People, 692 SCRA 127).
A pleading however is directly related to the cause of action or the
defense. But a motion prays for something else. In a motion, you are
asking for another relief other than the main cause of action or the
Sec. 3. Contents. A motion shall state the relief
main defense. Example is a motion to postpone trial or a motion for
sought to be obtained and the grounds upon
extension of time to file answer. You do not do that by a complaint
which it is based, and if required bythese Rules
but by way of a motion because you are praying for a relief other
or necessary to prove facts alleged therein,
than by a pleading.
shall be accompanied by supporting affidavits
and other papers. (3a)
Pleadings are limited to those enumerated in Rule 6 such as
complaint, answer, cross-claim, counterclaim, etc. But if you look
Contents of a Motion:
at a motion, it looks like a pleading. In form, it looks exactly like a
1) the relief sought to be obtained;
pleading but under the law, it is not a pleading.
2) the ground upon which it is based; and
3) if required by the Rules or necessary to prove facts alleged
Sec. 2. Motions must be in writing. All
therein, shall be accompanied by supporting affidavit and
motions shall be in writing except those
other papers.
made in open court or in the course of a
hearing or trial.
So a motion shall state the relief sought to be obtained and the
A motion made in open court or in the
grounds upon which it is based. For example, you move to postpone
course of a hearing or trial should
the trial next week because you client is still abroad. So you cite the
immediately be resolved in open court,
ground/s upon which it is based.
after the adverse party is given the
opportunity to argue his or her opposition
Q: Is it necessary that a motion be accompanied by supporting
thereto.
affidavits and other papers?
When a motion is based on facts not
A: No, unless required by the Rules or necessary to prove facts
appearing on record, the court may hear the
alleged therein.
matter on affidavits or depositions
presented by the respective parties, but the
Q: Give an example of a motion where supporting affidavits are
court may direct that the matter be heard
required by the Rules.
wholly or partly on oral testimony or
A: A motion for new trial on the ground of fraud, accident, mistake
depositions. (2)
of excusable negligence. Under Rule 37, Section 2, in order for a
motion for new trial on that ground to be valid, there must Be
As a rule, all motions must be in writing, “except those made in
Affidavit Of Merits. If there is no affidavit of merits, the motion will
open court or in the course of a hearing or trial” because for
be denied.
example, during the trial, pagtingin mo sa relo, quarter to twelve
129
Amilhamja, Adj.
And if necessary to prove facts alleged therein, then, the motion Section 5. Litigious motions – (a) litigious
must be accompanied by affidavit and other supporting papers. motions include:
Example is when you are moving for the postponement of the trial i. Motion for bill of particulars; ii. Motion to
because your client is sick, the best supporting paper would be a dismiss;
medical certificate for that matter. iii. Motion for new trial;
iv. Motion for reconsideration;
However, if it is not required by the Rules, or the facts are already
v. Motion for execution pending appeal; vi.
stated on record, there is no need of supporting affidavits or
Motion to amend after a responsive pleading has
documents. Example is when you move to declare the adverse party
been filed;
in default. There is no need to support your motion with affidavits
vii. Motion to cancel statutory lien;
because anyway the court can look at the records, particularly the
viii. Motion for an order to break in or for a writ
sheriff’s return, to check when was the defendant was served with
of demolition;
summons.
ix. Motion for intervention;
Sec. 4. Section 4. Non-litigious motions. —
x. Motion for judgment on the pleadings;
Motions which the court may act upon
registered xi. Motion for summary judgment; xii.
without prejudicing the rights of adverse
Demurrer to evidence;
parties are non-litigious motions. These
xiii. Motion to declare defendant in default; and
motions include:
xiv. Other similar motions.
i. Motion for the issuance of alias summons;
(b) All motions shall be served by personal
ii. Motion for extension to file answer;
service, accredited private courier or registered
iii. Motion for postponement;
mail, or electronic means so as to ensure their
iv. Motion for the issuance of a writ of
receipt by the other party.
execution;
(c) The opposite party shall file his or her
v. Motion for the issuance of an alias writ of
opposition to a litigious motion within five (5)
execution
calendar days from receipt thereof. No other
vi. Motion for the issuance of a writ of
submissions shall be considered by the court in
possession;
the resolution of the motion.
vii. Motion for the issuance of an order
The motion shall be resolved by the court within
directing the sheriff to execute the final
fifteen (15) calendar days from its receipt of the
certificate of sale; and
opposition thereto, or upon expiration of the
viii. Other similar motions.
period to file such opposition. (n)
These motions shall not be set for hearing and
shall be resolved by the court within five (5)
-Concentrate here!
calendar days from receipt thereof. (n)
-This will prejudice right of the other party
therefore notification is needed
-No need for the opposite party to be present because court can
-opposite party must be heard
actually rule ex-parte
—The following are litigious motions under the new Rules:
What is non-litigious motion?
-list is not exclusive; any motion that shall prejudice
—Motions which the court may act upon without prejudicing the
opposing party is litigious
rights of adverse parties are non-litigious motions.
-need to notify opposite party
-opposite party- incumbent for him to comment or give
The following are non-litigious motions under the new Rules:
opposition; no need for court intervention
-this enumeration is not exclusive as any similar action may be
1. Motion for bill of particulars
treated as such
2. Motion to dismiss
1. Motion for the issuance of alias summons;
3. Motion for new trial
2. Motion for extension to file answer;
4. Motion for reconsideration
3. Motion for postponement;
5. Motion for execution pending appeal
4. Motion for the issuance of a writ of execution;
6. Motion to amend after a responsive pleading has been filed;
5. Motion for the issuance of an alias writ of execution
7. Motion to cancel statutory lien;
6. Motion for the issuance of a writ of possession;
8. Motion for an order to break in or for a writ of demolition;
7. Motion for the issuance of an order directing the sheriff
9. Motion for intervention;
to execute the final certificate of sale; and
10. Motion for judgment on the pleadings;
8. Other similar motions.
11. Motion for summary judgment;
12. Demurrer to evidence;
—What should the court do with non- litigious motions?
13. Motion to declare defendant in default;
—These motions shall not be set for hearing and shall be
14. Other similar motions.
resolved by the court within five (5) calendar days from receipt
thereof.
— What is the procedure in litigious motions?
— All motions shall be served by personal service, accredited
private courier or registered mail, or electronic means so as to
ensure their receipt by the other party.
— The opposite party shall file his or her opposition to a litigious
motion within five (5) calendar days from receipt thereof. No
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Amilhamja, Adj.
other submissions shall be considered by the court in the

resolution of the motion. Section 12. Prohibited Motions. — The following
— The motion shall be resolved by the court within fifteen (15) shall not be allowed:
calendar days from its receipt of the opposition thereto, or (a) Motion to dismiss except on the following
upon expiration of the period to file such opposition. grounds:
— The court may, in the exercise of its discretion, and if i. That the court has no jurisdiction over the
deemed necessary for its resolution, call a hearing on the subject matter of the claim.
motion. The notice of hearing shall be addressed to all parties ii. That there is another action pending between
concerned, and shall specify the time and date of the hearing the same parties for the same cause; and
(Section 6). iii. That the cause of action is barred by a prior
judgment or by the statute of limitations;
Section 6. Notice of hearing on litigious (b) Motion to hear affirmative defenses;
motions; discretionary. — The court may, in (c) Motion for reconsideration of the court’s
the exercise of its discretion, and if deemed action on the affirmative defenses;
necessary for its resolution, call a hearing on (d) Motion to suspend proceedings without a
the motion. The notice of hearing shall be temporary restraining order or injunction issued
addressed to all parties concerned, and shall by a higher court;
specify the time and date of the hearing. (5) (e) Motion for extension of time to file pleadings,
affidavits or any other papers, except a motion
Section 7. Proof of service necessary. — No for extension to file an answer as provided by
written motion shall be acted upon by the Section 11, Rule 11; and
court without proof of service thereof, (f) Motion for postponement intended for delay,
pursuant to section 5(b) hereof. (6) except if it is based on acts of God, force majeure
-every motion shall be accompanied by this or physical inability of the witness to appear and
testify. If the motion is granted based on such
Section 8. Motion day. — Except for motions exceptions, the moving party shall be warned
requiring immediate action, where the court that the presentation of its evidence must still be
decides to conduct hearing on a litigious terminated on the dates previously agreed upon.
motion, the same shall be set on a Friday. (7)
There are prohibited motions under the new Rules:
Section 9. Omnibus motion. — Subject to the —1. Motion to dismiss
provisions of section 1 of Rule 9, a motion —2. Motion to hear affirmative defenses;
attacking a pleading, order, judgment, or —3. Motion for reconsideration of the court’s action on the affirmative
proceeding shall include all objections then defenses;
available, and all objections not so included In this case:
shall be deemed waived. (8) With respect to affirmative defenses:
-Granted- it is allowed
— What are the exceptions to omnibus motion rule under -Denied- not subject to motion for reconsideration
Section 1, Rule 9? =denying the A.D. is the only prohibited in this case
— Lack of jurisdiction over the subject matter —4. Motion to suspend proceedings without a temporary restraining
— Litis pendentia order or injunction issued by a higher court;
— Res judicata —5. Motion for extension of time to file pleadings, affidavits or any other
— Statute of limitation or prescription papers;
—6. Motion for postponement intended for delay;
Section 10. Motion for leave. — A motion for
leave to file a pleading or motion shall be — PLEASE TAKE NOTE the MTC’s which are allowed
accompanied by the pleading or motion — When the MTD is based on the following grounds, it is ALLOWED!
sought to be admitted. (9) §lack of jurisdiction over the subject matter;
§Litis pendentia;
§Res judiciata;
Section 11. Form. — The Rules applicable to §Presription
pleadings shall apply to written motions so far —MTD is not a prohibited pleading. It is a litigious motion.
as concerns caption, designation, signature, — When for extension of time to file answer is allowed pursuant
and other matters of form. (10) Section 11, Rule 11.
— Motion for postponement is allowed if it is based on acts of God, force
majeure or physical inability of the witness to appear and testify. A motion
for postponement, whether written or oral, shall, at all times, be
accompanied by the original receipt from the office of the clerk of court
evidencing payment of the postponement fee. If no proof of payment of
postponement fee, the clerk of court shall not accept the motion.
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—2. That there is another action pending the same parties for the same
Section 13. Dismissal with prejudice. — cause of action;
Subject to the right of appeal, an order —3. Cause of action is barred by prior judgment;
granting a motion to dismiss or an affirmative —4. Cause of action is barred by statute of limitation.
defense that the cause of action is barred by a Section 12, Rule 15
prior judgment or by the statute of limitations;
that the claim or demand set forth in the No anymore ground for MTD; not Rule 16
plaintiff’s pleading has been paid, waived, — But may be set up as affirmative defenses
abandoned or otherwise extinguished; or that 1. That the cause of action is barred by a prior judgment or by the
the claim on which the action is founded is statute of limitations;
unenforceable under the provisions of the 2. That the pleading asserting the claim states no cause of action;
statute of frauds, shall bar the refiling of the 3. That the claim or demand set forth in the plaintiff's pleading has
same action or claim. (5, R16) been paid, waived, abandoned, or otherwise extinguished;
4. That the claim on which the action is founded is unenforceable
— There are dismissals of action which bar the filing of a similar action. under the provisions of the statute of frauds;
Dismissal based on: 5. That a condition precedent for filing the claim has not been
1. Barred by a prior judgment; complied with.
2. Barred by the statute of limitations;
3. that the claim or demand set forth in the plaintiff’s pleading has Within what time should a motion to dismiss be filed?
been paid, waived, abandoned or otherwise extinguished; —Within the time for but before filing the answer. However is the ground
4. that the claim on which the action is founded is unenforceable of the motion to dismiss is lack of subject-matter jurisdiction, res judicata,
under the provisions of the statute of frauds. lis pendens or prescription, and such grounds appear from the pleadings
— n.b. the remedy of the aggrieved party is appeal or evidence on record, the motion to dismiss may be filed even after
answer had been filed (Section 1, Rule 9).
There are 2 kinds of dismissal:
1. with prejudice- not allowed to be refiled Litis Pendentia
2. without prejudice- allowed to be refiled — Requisites:
1. Identity of parties or at least such as representing
Why is it necessary to distinguish? the same interest in both action;
-because it has different remedies 2. Identity of rights asserted and relief prayed for, the relief being
-if with prejudice, APPEAL is the remedy founded on the same facts;
-if without prejudice, PETITION FOR CERTIORARI under rule 65 and Rule 3. Identity of the causes of action such that judgment in one case will
41 is the remedy amount to res judicata.
Grounds which are prejudicial: = APPEAL as remedy That the pleading asserting the claim states no cause of action
1. Dismissal because of res judicata — Test:
2. Dismissal because of prescription ◦ When all the elements of the cause of action are not present
3. Dismissal because of extinguishment of obligation in the complaint.
4. Dismissal because of statute of limitations Remember:
◦ You have to hypothetically admit the allegations in the complaint. If after
PROCEEDINGS AFTER SERVICE OF SUMMONS AND DISMISSAL hypothetically admitting, the Court cannot render a valid judgment, then,
OF ACTIONS the allegations in the complaint states no cause of action.
Motion for Bill of Particulars That a condition precedent for filing the claim has not been complied
-A BOP is where a party agrees CoA but it is not clear with:
-If the allegations in the pleading is not definite or is vague to enable Examples of conditions precedent:
the adverse party to prepare his responsive pleading, then a Motion for 1. Referral to barangay
Bill of Particulars may be filed (Sec. 1, Rule 12). 2. Earnest effort to compromise
- If the motion is granted, the compliance therewith must be effected 3. Tender of payment in consignation
within ten (10) days from notice of the order, unless a different period
is fixed by the court. It may be filed either in a separate or in an What are the remedies when the MTD is granted?
amended pleading, serving a copy thereof on the adverse party (Sec. 3, 1. Refile the complaint depending on the ground for dismissal
Rule 12). -if without prejudice = certiorari
- If the order is not obeyed, or in case of insufficient compliance -if with = cannot refile = remedy is appeal
therewith, the court may order the striking out of the pleading or the 2. Appeal the order of dismissal the basis of the dismissal is the following:
portions thereof to which the order was directed or make such other (with prejudice)
order as it deems just (Sec. 4, Rule 12). ◦ Res judicata,
- It is filed within a period for filing responsive pleading. ◦ Prescription,
◦ Extinguishment of obligation
◦ Violation of statute of frauds. (Sec. 13, Rule 15)
Motion to Dismiss -Petition for certiorari if dismissal is without prejudice pursuant to Sec. 1,
-if not cause of action, file an answer of affirmative defense Rule 41.
Grounds:
—1. That the court has no jurisdiction over the subject When complaint cannot be refiled after dismissal
matter of the claim; -1. Dismissal on the ground of res judicata.
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—2. Dismissal on the ground of statute of

limitations.
—3. Claim or demand has been extinguished, paid, waived, abandoned
or extinguished.
—4. Claim, on which the action is founded, is unenforceable under
statute of frauds.
What is the effect of dismissal on counterclaim?

—Under the old Rule, the dismissal of the complaint under this section
shall be without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer (Sec. 6, Rule 16).
—However, this rule is incorporated in Rule 16. But Rule 16 is already
deleted from the rule. Does this mean that the dismissal of the
complaint carries with it the dismissal of the counterclaim?
-What is the effect of dismissal on counterclaim?
—I submit that the counterclaim can still be adjudicated in the same
action. Section 2, Rule 17 may be applicable. It is provided therein that:
“the dismissal shall be without prejudice to the right of the defendant
to prosecute his or her counterclaim in a separate action unless within
fifteen (15) calendar days from notice of the motion he or she
manifests his or her preference to have his or her counterclaim
resolved in the same action.”
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Rule 17 motion to dismiss by the plaintiff. The said motion is subject to approval
of the court (Section 2, Rule 17).
DISMISSAL OF ACTIONS
—NOTE: dismissal is without prejudice unless otherwise provided in the
Order
- Not a matter of right; subject to approval of court
Section 1. Dismissal upon notice by plaintiff. A
complaint may be dismissed by the plaintiff by
Sec. 3. Dismissal due to fault of plaintiff. Dismissal
filing a notice of dismissal at any time before
due to fault of plaintiff. — If, for no justifiable
service of the answer or of a motion for
cause, the plaintiff fails to appear on the date of
summary judgment. Upon such notice being
the presentation of his or her evidence in chief
filed, the court shall issue an order confirming
on the complaint, or to prosecute his or her
the dismissal. Unless otherwise stated in the
action for an unreasonable length of time, or to
notice, the dismissal is without prejudice,
comply with these Rules or any order of the
except that a notice operates as an
court, the complaint may be dismissed upon
adjudication upon the merits when filed by a
motion of the defendant or upon the court's own
plaintiff who has once dismissed in a
motion, without prejudice to the right of the
competent court an action based on or
defendant to prosecute his or her counterclaim
including the same claim. (1a)
in the same or in a separate action. This dismissal
shall have the effect of an adjudication upon the
— Dismissal Upon Notice by Plaintiff
merits, unless otherwise declared by the court.
◦ A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for
-IMPORTANT*
summary judgment. Upon such notice being filed, the court shall issue
-most powerful weapon because court can dismiss claim motu propio
an order confirming the dismissal. Unless otherwise stated in the
*Dismissal due to fault of the plaintiff
notice, the dismissal is without prejudice, except that a notice operates
- Failure of the plaintiff to present evidence in chief
as an adjudication upon the merits when filed by a plaintiff who has
-Failure to prosecute his action for an unreasonable period of time
once dismissed in a competent court an action based on or including
-Failure of the plaintiff to comply with the Rules of Court
the same claim (Sec. 1, Rule 17).
-Failure of the plaintiff to comply with the order of the court.
=DISMISSAL AS A MATTER OF RIGHT
>NOTE:
◦ the dismissal may be motu propio
Nature of dismissal under Section 1, Rule 17
◦ The dismissal is with prejudice unless otherwise ordered by the court
—General rule:
◦ Without prejudice
-a matter of right; notice to court before summons are given
Section 4. Dismissal of counterclaim, cross-claim,
-Exception:
or third-party complaint. — The provisions of this
1. If the notice of dismissal provides that the dismissal is with prejudice
Rule shall apply to the dismissal of any
2. If the plaintiff has previously dismissed the same case in a court of
counterclaim, cross-claim, or third-party
competent jurisdiction based on or including the same claim -“2nd
complaint. A voluntary dismissal by the claimant
time”; “double dismissal rule” = with prejudice
by notice as in Section 1 of this Rule, shall be
made before a responsive pleading or a motion
for summary judgment is served or, if there is
Sec. 2. Dismissal upon motion of plaintiff.
none, before the introduction of evidence at the
Except as provided in the preceding section,
trial or hearing. (4)
a complaint shall not be dismissed at the
plaintiff's instance save upon approval of
Effect of Dismissal upon Counterclaim
the court and upon such terms and
-If counterclaim has been pleaded prior to service upon the defendant of
conditions as the court deems proper. If a
plaintiff’s motion to dismiss, the dismissal shall be limited to the
counterclaim has been pleaded by a
complaint only.
defendant prior to the service upon him or
— The defendant may prosecute his claim in the same action or in a
her of the plaintiff’s motion for dismissal,
separate action.
the dismissal shall be limited to the
— “The dismissal shall be without prejudice to the right of the defendant
complaint. The dismissal shall be without
to prosecute his counterclaim in a separate action unless within fifteen
prejudice to the right of the defendant to
(15) days from notice of the motion he manifests his preference to have
prosecute his or her counterclaim in a
his counterclaim resolved in the same action” (Sec. 2, Rule 17).
separate action unless within fifteen (15)
calendar days from notice of the motion he
or she manifests his or her preference to
have his or her counterclaim resolved in the
same action.
-contemplates a situation when the plaintiff changes his mind but

answer has been served = not a matter of right anymore
Dismissal Upon Motion of Plaintiff

—If the answer or motion has already been served upon the plaintiff,
dismissal is no longer a matter of right and will require the filing of the
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Rule 18
PRE-TRIAL
Sec. 2. Nature and Purpose. — The pre-trial is
mandatory and should be terminated promptly. The
When do we conduct pre-trial?
court shall consider:
-When the issue has been joined.
(a) The possibility of an amicable settlement or of a
Pre-trial is a mandatory conference and personal confrontation
submission to alternative modes of dispute
before the judge between the parties and their respective counsel.
resolution;
(b)The simplification of the issues;
Pre-trial is mandatory in civil cases (Sec. 2; Interlining Corporation
(c) The possibility of obtaining stipulations or
vs. Philippine Trust Company 378 SCRA 521; Tiu vs. Middleton 310
admissions of facts and of documents to avoid
SCRA 580). It is a procedural device held prior to the trial for the
unnecessary proof;
court to consider the purposes enumerated in Section 2.
(d)The limitation of the number and identification
of witnesses and the setting of trial dates;
Section 1. When conducted. After the last
(e) The advisability of a preliminary reference of
responsive pleading has been served and filed,
issues to a commissioner;
the branch clerk of court shall issue, within
(f) The propriety of rendering judgment on the
five (5) calendar days from filing, a notice of
pleadings, or summary judgment, or of dismissing
pre-trial which shall be set not later than sixty
the action should a valid ground therefor be found
(60) calendar days from the filing of the last
to exist;
responsive pleading. (1a)
(g)The requirement for the parties to:
1. Mark their respective evidence if not yet marked
Q: When is pre-trial held? Who has the obligation to set the
in the judicial affidavits of their witnesses;
schedule for pre-trial?
2. Examine and make comparisons of the adverse
A: After the “last pleading” has been served and filed, it shall be the
parties' evidence vis- a-vis the copies to be marked;
duty of the plaintiff to promptly move ex parte that the case be set
3. Manifest for the record stipulations regarding the
for pre-trial (Sec. 1, Rule 18). However, if the plaintiff fails to move,
faithfulness of the reproductions and the
the branch clerk of court shall issue notice of pre-trial (AM No. 93-1-
genuineness and due execution of the adverse
09- SC, July 13, 2004)
parties' evidence;
4. Reserve evidence not available at the pre-trial,
Under the new Rule, it not anymore the duty of the plaintiff to
but only in the following manner:
move for the setting the case for pre-trial. It is now the obligation
i. For testimonial evidence, by giving the name or
of the clerk of court.
position and the nature of the testimony of the
• The branch clerk of court shall issue notice of pre-trial within five
proposed witness;
(5) days from the filing of the last responsive pleading.
ii. For documentary evidence and other object
• The pre-trial shall be set not later than 60 days from the filing of
evidence, by giving a particular description of the
the last responsive pleading.
evidence.
In civil actions, after the last pleading has been filed (Reply or
No reservation shall be allowed if not made in the
Answer) the plaintiff is duty bound to move promptly and ex parte
manner described above.
that the case be set for pre-trial.
(h) Such other matters as may aid in the prompt
disposition of the action.
The ex-parte motion to set case for pre-trial is to be made by the
The failure without just cause of a party and
plaintiff after the last pleading that has been served and filed (Sec.
counsel to appear during pre-trial, despite notice,
1). Specifically, the motion is to be filed within five (5) days after the
shall result in a waiver of any objections to the
last pleading joining the issues has been served and filed
faithfulness of the reproductions marked, or their
(Administrative Circular No. 3-99, January 15, 1999). If the plaintiff
genuineness and due execution.
fails to file said motion within the given period, the branch clerk of
court shall issue a notice of pre-trial (A.M. No. 03-1-09-SC, July 13, -Some take this for granted but it is important!
2004). There is a mandate under the new Rules that pre-trial be terminated
promptly.
Q: What is the meaning of “last pleading” filed?
A: The last pleading that a party can file is the reply to the answer There are new matters that must be considered during pre-trial:
to the last pleading asserting a claim. The claim could be the • The limitation of the number and identification of witnesses and the
original complaint, counterclaim, cross-claim or third party claim. If setting of trial dates;
an answer is filed and served in response to these claims, the • Mark their respective evidence if not yet marked in the judicial
pleading in response to these answers is reply which is to be filed affidavits of their witnesses;
within 10 days from the service of the pleading (Sarmieto vs. Juan, • Examine and make comparisons of the adverse parties' evidence vis-
120 SCRA 403; Sec. 6, Rule 11). a-vis the copies to be marked;
• Manifest for the record stipulations regarding the faithfulness of the
reproductions and the genuineness and due execution of the adverse
parties' evidence;
• Reserve evidence not available at the pre-trial: but only in the
following manner:
• For testimonial evidence, by giving the name or position and the
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Amilhamja, Adj.
nature of the testimony of the proposed witness; represented by him (Section 3, Rule 18).
• For documentary evidence and other object evidence, by giving a NOTE: Notice of pre-trial to counsel is mandatory to allow the plaintiff
particular description of the evidence. to present evidence ex-parte if the defendant failed to appear (Agulto
vs. Tecson, 476 SCRA 395, 402).
Purpose in pre- trial
(a) The possibility of an amicable settlement or of a submission to -B and C requires appearance = mandatory
alternative modes of dispute resolution;
(b)The simplification of the issues; Non-appearance at any of the foregoing settings shall be deemed as
(c) The possibility of obtaining stipulations or admissions of facts nonappearance at the pre-trial and shall merit the same sanctions
and of documents to avoid unnecessary proof; under Section 5 hereof.
(d)The limitation of the number and identification of witnesses and 1. If plaintiff side did not appear- it could lead to the dismissal of the
the setting of trial dates; complaint
(e) The advisability of a preliminary reference of issues to a 2. If the defendant did not appear- the plaintiff will be allowed to
commissioner; present evidence ex parte
(f) The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid Who is required to appear?
ground therefor be found to exist; -Parties and their respective counsels are required
(g)The requirement for the parties to:
1. Mark their respective evidence if not yet marked in the Sec. 4. Appearance of parties It shall be the
judicial affidavits of their witnesses; duty of the parties and their counsel to appear
2. Examine and make comparisons of the adverse parties' at the pre-trial, court-annexed mediation, and
evidence vis- a-vis the copies to be marked; judicial dispute resolution, if necessary. The
3. Manifest for the record stipulations regarding the nonappearance of a party and counsel may
faithfulness of the reproductions and the genuineness and due be excused only for acts of God, force majeure,
execution of the adverse parties' evidence; or duly substantiated physical inability.
4. Reserve evidence not available at the pre-trial, but only in A representative may appear on behalf of a
the following manner: party, but must be fully authorized in writing
i. For testimonial evidence, by giving the name or to enter into an amicable settlement, to
position and the nature of the testimony of the proposed submit to alternative modes of dispute
witness; resolution, and to enter into stipulations or
ii. For documentary evidence and other object admissions of facts and documents.
evidence, by giving a particular description of the evidence.
No reservation shall be allowed if not made in the manner Q: Is the appearance of parties and counsels mandatory during the
described above. pre-trial?
(h) Such other matters as may aid in the prompt disposition of the A: It shall be the duty of the parties and their counsel to appear at the
action. pre-trial. The non-appearance of a party may be excused only if a valid
cause is shown therefor or if a representative shall appear in his
Sec. 3. Notice of pre-trial. The notice of pre- behalf fully authorized in writing to enter into an amicable settlement,
trial shall include the dates respectively set to submit to alternative modes of dispute resolution, and to enter
for: into stipulations or admissions of facts and of documents (Section 4,
(a) Pre-trial; Rule 18).
(b) Court-Annexed Mediation; and
(c) Judicial Dispute Resolution, if Parties and respective counsels are required to appear otherwise Sec.
necessary. 5 is the penalty
The notice of pre-trial shall be served on
counsel, or on the party if he or she has no Section emphasizes that the appearance of parties and their counsels
counsel. The counsel served with such notice are mandatory during pre-trial, court-annexed mediation and judicial
is charged with the duty of notifying the party dispute resolution is mandatory.
represented by him or her.
Non-appearance at any of the foregoing Appearance may only be excused based on the following reasons:
settings shall be deemed as nonappearance at • 1) Acts of god
the pre-trial and shall merit the same • 2) Force majeure
sanctions under Section 5 hereof. (3a) • 3). Physical inability of party or counsel
-After issues have been enjoined, clerk of court will issue notice of Can a representative appear? YES!
trial; reflects -Operational form- 3 dates • A representative may appear on behalf of a party (principal party),
*Pre-trial will include but must be fully authorized in writing (SPA MUST CONTAIN THESE)*
-date of pre-trial itself 1) to enter into an amicable settlement
-date of court annexed mediation 2) to submit to alternative modes of dispute resolution,
-date of judicial resolution 3) and to enter into stipulations or admissions of facts and
documents.
Q: Where notice of pre-trial be served?
A: The notice of pre-trial shall be served on counsel, or on
the party who has no counsel. The counsel served with
such notice is charged with the duty of notifying the party
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Amilhamja, Adj.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL trial. (8)
Sec. 5. Effect of failure to appear. When duly

notified, the failure of the plaintiff and Q: What obligation should the partiers perform before the
counsel to appear without valid cause when conduct of pre-trial?
so required, pursuant to the next preceding A: The parties shall file with the court and serve on the adverse
Section, shall cause the dismissal of the party, in such manner as shall ensure their receipt thereof at least
action. The dismissal shall be with prejudice, three (3) days before the date of the pre- trial, their respective pre-
unless otherwise ordered by the court. A trial briefs (Section 6, Rule 18).
similar failure on the part of the defendant
and counsel shall be cause to allow the Q: What is the effect of failure to file pre-trial brief?
plaintiff to present his or her evidence ex- A: Failure to file the pre-trial brief shall have the same effect as
parte within ten (10) calendar days from failure to appear at the pre-trial (Section 6, Rule 18).
termination of the pre-trial, and the court to
render judgment on the basis of the Principles involved in Compromise Agreements
evidence offered. (5a)
Sec. 7. Record of pre-trial. Upon termination of the pre-trial,
the court shall issue an order within ten (10) calendar days
Q: What is the effect of failure of the parties to appear during
which shall recite in detail the matters taken up. The order
pre-trial?
shall include:
A: The failure of the plaintiff to appear when so required pursuant
to the next preceding section shall be cause for dismissal of the (a) An enumeration of the admitted facts;
action. The dismissal shall be with prejudice, unless otherwise (b)The minutes of the pre-trial conference;
ordered by the court.
A similar failure on the part of the defendant shall be cause to (c) The legal and factual issue/s to be tried;
allow the plaintiff to present his evidence ex parte and the court to (d)The applicable law, rules, and jurisprudence;
render judgment on the basis thereof (Section 5, Rule 18).
(e) The evidence marked;
Q: Is pre-trial mandatory (f) The speciic trial dates for continuous trial, which shall be
A: Yes. (Section2. Rule18; Tiu vs. Middleton, 310 SCRA 580, 586) within the period provided by the Rules;
(g) The case flowchart to be determined by the court, which
Section of the new rules provides for the effect on non- shall contain the different stages of the proceedings up to
appearance of parties and their counsels. the promulgation of the decision and the use of time
• If the plaintiff and his or her counsel failed to appear, despite frames for each stage in setting the trial dates;
notice, it would cause the dismissal of the complaint, with
prejudice, unless otherwise ordered by the court. (h) A statement that the one-day examination of witness
• If the defendant and his or her counsel failed to appear, it will rule and most important witness rule under A.M. No. 03-1-
allow the plaintiff to present evidence ex-parte. 09-SC (Guidelines for Pre-Trial) shall be strictly followed;
• PLEASE TAKE NOTE THAT THE APPEARANCE OF PARTY AND and
COUNSEL IS REQUIRED (i) A statement that the court shall render judgment on the
-See consequences- 3 powers should be present in SPA pleadings or summary judgment, as the case may be.
The direct testimony of witnesses for the plaintiff shall be
PRE-TRIAL BRIEF
in the form of judicial affidavits. After the identification of
such affidavits, cross-examination shall proceed
Sec. 6. Pre-trial brief. The parties shall file with
immediately.
the court and serve on the adverse party, in
such manner as shall ensure their receipt Postponement of presentation of the parties’ witnesses at
thereof at least three (3) calendar days before a scheduled date is prohibited, except if it is based on acts
the date of the pre-trial, their respective pre- of God, force majeure or duly substantiated physical
trial briefs which shall contain, among others: inability of the witness to appear and testify. The party who
(a) A concise statement of the case and the caused the postponement is warned that the presentation
reliefs prayed for; of its evidence must still be terminated within the
(b) A summary of admitted facts and proposed remaining dates previously agreed upon.
stipulation of facts; Should the opposing party fail to appear without valid
(c) The main factual and legal issues to be tried cause stated in the next preceding paragraph, the
or resolved; presentation of the scheduled witness will proceed with
(d) The propriety of referral of factual issues to the absent party being deemed to have waived the right to
commissioners; interpose objection and conduct cross-examination.
(e) The documents or other object evidence to
be marked, stating the purpose thereof; The contents of the pre-trial order shall control the
(f) The names of the witnesses, and the subsequent proceedings, unless modified before trial to
summary of their respective testimonies; and prevent manifest injustice. (7a)
(g) A brief statement of points of law and
citation of authorities.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-
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Amilhamja, Adj.
Q: What are the matters to be considered during pre -trial? Section. 10. Judgment after pre-trial. — Should
A: there be no more controverted facts, or no
(a) The possibility of an amicable settlement or of a submission to more genuine issue as to any material fact, or
alternative modes of dispute resolution; an absence of any issue, or should the answer
(b) The simplification of the issues; fail to tender an issue, the court shall, without
(c) The necessity or desirability of amendments to the prejudice to a party moving for judgment on
pleadings; the pleadings under Rule 34 or summary
(d) The possibility of obtaining stipulations or admissions judgment under Rule 35, motu proprio include
of facts and of documents to avoid unnecessary proof; in the pre-trial order that the case be
(e) The limitation of the number of witnesses; submitted for summary judgment or judgment
(f) The advisability of a preliminary reference of issues to a on the pleadings, without need of position
commissioner; papers or memoranda. In such cases,
(g) The propriety of rendering judgment on the pleadings, judgment shall be rendered within ninety (90)
or summary judgment, or of dismissing the action calendar days from termination of the pre-
should a valid ground therefor be found to exist; trial.
(h) The advisability or necessity of suspending the
The order of the court to submit the case for
proceedings; and
judgment pursuant to this Rule shall not be the
(i) Such other matters as may aid in the prompt disposition
subject to appeal or certiorari. (n)
of the action.
Section 8. Court-Annexed Mediation. — Can the judge render judgment after pre-trial?
After pre-trial and, after issues are joined, -YES!
the court shall refer the parties for -Sec. 10 Rule 19
mandatory court-annexed mediation. a. Should there be no more controverted facts
The period for court-annexed mediation b. or no more genuine issue as to any material fact
shall not exceed thirty (30) calendar days c. or an absence of any issue, or should the answer fail to tender an
without further extension. (n) issue
>will be on pre-trial order that it will conduct summary judgment or
judgment – motu proprio
In 2019 rules, pre-trial will be done first before it will be referred to
philippine mediation center. -can you file motion for reconsideration? NO!
-can it be subject for an appeal? NO!
Will there still be JDR? Depends on judge as it is not
mandatory; will be conducted by another judge
=90 calendar days
Section 9. Judicial Dispute Resolution. —
Only if the judge of the court to which the Under the new Rules, the judgment on the pleadings or summary
case was originally raffled is convinced that judgment may be done by the Court motu proprio, of course with
settlement is still possible, the case may be prejudice to the right of the party to file a motion to that effect.
referred to another court for judicial • If the court decides to render judgment on the pleadings or
dispute resolution. The judicial dispute summary judgment, the same must be stated in the pre-trial order.
resolution shall be conducted within a non- • The Court shall decide the case within 90 days from the
extendible period of fifteen (15) calendar termination of the pre-trial.
days from notice of failure of the court-
annexed mediation. Q: Can a judge render judgment after pre-trial?
If judicial dispute resolution fails, trial A: Yes. Sec. 10, Rule 18 and it CANNOT be subject for appeal and
before the original court shall proceed on MR
the dates agreed upon.
All proceedings during the court-annexed
mediation and the judicial dispute
resolution shall be confidential. (n)
-The judicial dispute resolution is not anymore mandatory. It will only

be conducted if the judge where the case is originally raffled is
convinced that settlement can be reached. In which case, the JDR will
be conducted by a different court which shall be conducted for a
period of 15 days which is non-extendible.
-a different judge will conduct
-If judicial dispute resolution fails, trial before the original court shall
proceed on the dates agreed upon.
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Rule 19 defending party in resisting a claim against the

latter. (3a)
Intervention
Section 1. Who may intervene. A person who Section 4. Answer to complaint-in-intervention. —
has a legal interest in the matter in litigation, or The answer to the complaint-in- intervention shall
in the success of either of the parties, or an be filed within fifteen (15) calendar days from
interest against both, or is so situated as to be notice of the order admitting the same, unless a
adversely affected by a distribution or other different period is fixed by the court. (4a)
disposition of property in the custody of the
court or of an officer thereof may, with leave of
court, be allowed to intervene in the action. Intervention is a legal proceeding by which a person who is not a
The court shall consider whether or not the party to the action is permitted by the court to become a party by
intervention will unduly delay or prejudice the intervening in a pending action after meeting the conditions and
adjudication of the rights of the original parties, requirements set by the Rules of Court. This third person who
and whether or not the intervenor’s rights may intervened is one who is not originally impleaded in the action (First
be fully protected in a separate proceeding. (1) Philippine Holdings Corporation v. Sandiganbayan 253 SCRA 30)
Intervention It is a remedy by which a third party, not originally impleaded in the

—It is a proceeding in a suit or action by which a third person is proceedings, becomes a litigant therein to enable him to protect or
permitted by the court to make himself a party, either by joining preserve a right or interest which may be affected by such
the plaintiff in claiming what is sought by the complaint or uniting proceeding (Office of the Ombudsman v. Samaniego GR 175573,
with the defendant in resisting the claims of the plaintiff (Mactan- Sept. 11, 2008).
Cebu International Airport Authority vs. Heirs of Minoza, 641
SCRA 520). Intervention is never an independent proceeding but is ancillary and
supplemental to an existing litigation. Its purpose is to enable a
Who may intervene? stranger to an action to become a party to protect his interest
—A person who has a legal interest in the matter in litigation; (Santiago Land Development Corporation v. CA 267 SCRA 79).
—or in the success of either of the parties,; An intervention cannot alter the nature of the action and the issues
—or an interest against both, or is so situated as to be adversely already joined (Castro v. David 100 Phil. 454).
affected by a distribution or other disposition of property in the
custody of the court Intervention in an action is neither compulsory nor mandatory but
—(Section 1, Rule 19) only optional and permissive (Mabayo Farms Inc. v. CA GR 140058
August 1, 2002)Hence, the court has full measure of discretion in
What is the meaning of “legal interest”? permitting or disallowing the same (Yau v. Manila Banking
— The legal interest must be actual, material, direct and of an Corporation GR 126731 July 11, 2002).
immediate character, not merely contingent or expectant, so that
the intervenor will either gain or lose by the direct legal operation This discretion however, must be exercised judiciously and only after
of judgment. consideration of all the circumstances obtaining in the case. Thus,
— Example – a corporate stock holder, cannot merely on the basis where the substantial interest of the movant in the subject matter is
of being a stock holder has legal interest to intervene in cases undisputed, a denial of a motion to intervene is an injustice (Mago v.
involving corporate properties (Magsaysay-Labrador vs. C A, GR CA GR No. 115624 Feb. 25, 1999).
No. 58168, December 19, 1989).
Q: What are the grounds for intervention?
Requisites for intervention A: The following are the GROUNDS for intervention:
1. There must be a motion for leave filed before rendition of 1) The intervenor has a legal interest on the matter under litigation;
judgment 2) The intervenor has a legal interest in the success of either of the
2. Movant must show in his motion: parties;
◦ That he has legal interest in matter of litigation or the 3) The intervenor has a legal interest against both; or
success of the parties in the litigation 4) The Intervenor is so situated as to be adversely affected by a
◦ Legal interest against both parties distribution or other disposition of property in the
◦ The movant is to be adversely affected by a distribution or other custody of the court or of an officer thereof.
disposition of the property in the custody of the court.
Intervention is never an independent proceeding but is ancillary and
Section 2. Time to intervene. — The motion to supplemental to an existing litigation. Hence, the final dismissal of
intervene may be filed at any time before the principal action results in the denial of the pending motion for
rendition of judgment by the trial court. A copy intervention.
of the pleading-in- intervention shall be Exception:
attached to the motion and served on the The intervenor in a pending case is entitled to be heard like any other
original parties. (2) party. A claim in intervention that seeks affirmative relief prevents a
plaintiff from taking a voluntary dismissal of the main action. Where
Section 3. Pleadings-in- intervention. — The a complaint in intervention was filed before plaintiff's action had
intervenor shall file a complaint-in intervention been expressly dismissed, the intervenor's complaint was not subject
if he or she asserts a claim against either or all to dismissal on the ground that no action was pending, since
of the original parties, or an answer-in- dismissal of plaintiff's action did not affect the rights of the
intervention if he or she unites with the intervenor or affect the dismissal of intervenor’s complaint.
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Rule 20
Calendar of cases
Section 1. Calendar of cases. — The clerk of
court, under the direct supervision of the judge,
shall keep a calendar of cases for pre-trial, for
trial, those whose trials were adjourned or
postponed, and those with motions to set for
hearing. Preference shall be given to habeas
corpus cases, election cases, special civil
actions, and those so required by law. (1)
The clerk of court has a calendar of cases – cases for pre-trial, trial
cases, which were postponed. When will be the continuation of
the trial? May scheduling yan eh. Of course, the law says,
preference shall be given to certain type of cases like habeas
corpus. It is very important because that involves the freedom of
an individual.
Section 2. Assignment of cases. — The
assignment of cases to the different branches
of a court shall be done exclusively by raffle.
The assignment shall be done in open session
of which adequate notice shall be given so as to
afford interested parties the opportunity to be
present. (2)
For example, in Davao City, there are more than 10 branches.

Now, when you file a case, how will we determine whether the
case will be assigned to Judge Malcampo or Judge Quitain or
Judge Torres? Raffle ‘yan. Niraraffle ‘yan. I remember the ordinary
raffling day in Davao City is every Tuesday. They raffle the cases.
All representatives of the different branches are there and then
they have a system of raffling. Which case will go to you? Para
hindi ka makapili. So, that is how cases are assigned.
So, pag-raffle ng kaso, there should be adequate notice to the

parties. This is one section where the clerk of court had a hard
time applying it. Do you know why?
Because the present practice, pag-file mo ng kaso, they will

immediately raffle it and then i-assign na sa branch. The branch
clerk of court will now issue the summons. Meaning, by the time
it reaches the defendant, naka-assign na. Suppose the defendant
will object, “When that raffling was done, I was not notified. I will
question the raffle because it would seem that the requirement is
that the plaintiff and the defendant should be notified of the
raffling.” Yaan!
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purpose.
Rule 21 No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is
Subpoena confined in any penal institution shall be brought
outside the penal institution for appearance or
Section 1. Subpoena and subpoena duces
attendance in any court unless authorized by the
tecum. — Subpoena is a process directed to a
Supreme Court. (2a)
person requiring him or her to attend and to
testify at the hearing or the trial of an action, or
at any investigation conducted by competent Q: Who are authorized to issue subpoena?
authority, or for the taking of his or her A: The following:
deposition. It may also require him or her to 1. The court before whom the witness is required to attend – the
bring with him or her any books, documents, or most common is the court where the court is pending;
other things under his or her control, in which 2. The place where the deposition is to be taken – we will discuss
case it is called a subpoena duces tecum. (1a) that when we reach Rule 23;
3. The officer or body authorized by law to do so in connection with
Rule 21 applies to both civil and criminal cases. Q: What are the investigations conducted by said officer or body – Now, even
types of subpoena under the law? A: The following are the types administrative bodies or quasi-judicial officers are authorized to
of subpoena: issue subpoena like the Labor Arbiter in connection with
1) Subpoena Ad Testificandum; and investigation conducted by said officer or body;
2) Subpoena Duces Tecum 4. Any Justice of the Supreme Court or of the Court of Appeals in any
Now, the first one is commonly known as subpoena for short. So, case or investigation pending within the Philippines – So, practically
when you say that refers to the first one. any justice can issue a subpoena to attend a particular case although
it is not before the SC. They are empowered to issue a subpoena.
Q: Define Subpoena Ad Testificandum.
A: SUBPOENA AD TESTIFICANDUM is a process directed to a Q: Can you subpoena a PRISONER to appear in court?
person requiring him to attend and to testify at the hearing or trial A: YES, but the law says that the judge should be very careful to find
of an action, or at any investigation conducted by competent out whether it is issued for a valid purpose because there is a risk. If
authority, or for the taking of his deposition. So you are required a prisoner is going to be brought out in jail because he has to testify
to appear there and testify in court. in a case, that might be an occasion for him to escape. So, the court
should be very careful about that. The court should have to find out
Q: Define Subpoena Duces Tecum. whether it is necessary.
A: SUBPOENA DUCES TECUM is a process directed to a person
where it requires him to bring with him any books, documents or And take note, “No person sentenced to death, reclusion perpetua,
other things under his control. So, in other words we are more or life imprisonment and who is confined in a penal institution shall
interested in his documents, which are in his custody. Whereas in be brought outside the said penal institution for appearance or
ad testificandum, we are more interested in his oral testimony. attendance in any court unless authorized by the Supreme Court.”
This is something new.
Now, take note that a subpoena is a process which requires a
witness to testify not only during the hearing or the trial of his Section 3. Form and contents. — A subpoena shall
case but also any investigation conducted by “competent state the name of the court and the title of the
authority” like quasi-judicial bodies such as the Labor Arbiter or action or investigation, shall be directed to the
the Senate Blue Ribbon Committee. Now, under Section 1, you person whose attendance is required, and in the
may wonder what do you mean by subpoena “for the taking of his case of a subpoena duces tecum, it shall also
deposition”? That’s because that will clearer when we reach Rule contain a reasonable description of the books,
23. So we will just reserve talking deposition when we reach Rule documents or things demanded which must
23. appear to the court prima facie relevant. (3)
Section 2. By whom issued. — The subpoena .
may be issued by – You are required to testify on this date or time or you are required
to bring with you the following documents, which was described in
(a) The court before whom the witness is
the subpoena duces tecum.
required to attend;
(b) The court of the place where the deposition Now, can a subpoena be quashed? To quash means to have it
is to be taken; dissolved. What are the grounds to quash a subpoena? Section 4:
(c) The officer or body authorized by law to do Section 4. Quashing a subpoena. — The court may
so in connection with investigations conducted quash a subpoena duces tecum upon motion
by said officer or body; or promptly made and, in any event, at or before the
(d) Any Justice of the Supreme Court or the time specified therein if it is unreasonable and
Court of Appeals in any case or investigation oppressive, or the relevancy of the books,
pending within the Philippines. documents or things does not appear, or if the
person in whose behalf the subpoena is issued
When an application for a subpoena to a fails to advance the reasonable cost of the
prisoner is made, the judge or officer shall production thereof.
examine and study carefully such application to
determine whether the same is made for a valid The court may quash a subpoena ad testificandum
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Amilhamja, Adj.
on the ground that the witness is not bound Did the person offer any amount for the trouble in looking for these
thereby. In either case, the subpoena may be documents and in going to court? “Wala.” Okay, we will move to
quashed on the ground that the witness fees quash. In other words, sometimes companies and banks just waived
and kilometrage allowed by these Rules were this. Sige lang, bayaan mo na. Maliit na bagay lang iyan. But it is a
not tendered when the subpoena was served. ground for quashing a subpoena.
(4)
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
Q: How do you quash a subpoena ad testificandum?
To quash there must be motion filed.
A: The court may quash a subpoena ad testificandum on the ground
Q: What are the grounds for quashing a subpoena duces tecum?
that the witness is not bound thereby.
A: The following are the grounds:
1) If the subpoena duces tecum is unreasonable and oppressive;
Q: When is a witness not bound by a subpoena?
2) The relevancy of the books, things or documents does not
A: The best answer is Section 10 of this rule – if your residence is
appear;
more than 100 kilometers from the place of trial. So, you cannot
3) the person in whose behalf the subpoena is issued fails to
subpoena someone from Cebu to come to Davao because that is
advance the reasonable cost for the production thereof.
more than 100 kms. But suppose you are willing to pay for his
transportation? Never mind, even if he is willing to pay the
First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE
transportation. Pag ayaw niya, wala kang magagawa because it is
AND OPPRESSIVE
more than 100 kms.
Well, the best example is if it violates Section 3 – it does not
contain a reasonable description of the book, documents or things
In either case, the subpoena may be quashed for failure to tender
demanded.
the witness fees and kilometrage allowed by the Rules.
EXAMPLE: I will subpoena a business man to a business company,
In either case, whether subpoena duces tecum or ad testificandum,
“Mr. Manager you are required to bring to court all your ledgers,
the last sentence says, “You must also tender the witness fees and
all your receipts, and all your documents from 1990 to the
kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I think
present.” My golly! That would involve how many truck loads.
that’s Rule 141, ‘yun bang pamasahe. There is a computation there.
Meaning, it would involve bringing to court thousand of
How much you have to pay the witness for his transportation and
documents. So, it becomes unreasonable and oppressive. The
witness fees. That is different from the reasonable cost and
subpoena duces tecum should be more specific.
reproduction in the first paragraph. So, these are the grounds for
questioning a subpoena.
Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS
DOES NOT APPEAR
Meaning, there appears to be no connection between the
Section 5. Subpoena for depositions. — Proof of
documents which are being sought, and the issues in the case.
service of a notice to take a deposition, as
Example, in a collection case, you were required to bring your
provided in Sections 15 and 25 of Rule 23, shall
birth certificate, marriage contract, etc. My golly! Anong pakialam
constitute sufficient authorization for the
ng mga niyan sa collection case?
issuance of subpoenas for the persons named in
said notice by the clerk of the court of the place in
Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS
which the deposition is to be taken. The clerk shall
ISSUED FAILS TO ADVANCE THE REASONABLE PRODUCTION
not, however, issue a subpoena duces tecum to
THEREOF
any such person without an order of the court. (5)
This is a very common situation:
A bank received his subpoena duces tecum, “Present to court the
ledger of the return check of somebody.” And this check was Section 6. Service. — Service of a subpoena shall
issued and send to you four years ago. Do you know the be made in the same manner as personal or
inconvenience when a company is asked to bring to court substituted service of summons. The original shall
documents especially ‘yung matagal na? Practically, the company be exhibited and a copy thereof delivered to the
has to assign the employee out of his usual job. He is pulled out person on whom it is served. The service must be
from his usual job to look for these in the archives. Isa-isahin niya made so as to allow the witness a reasonable time
iyan. Maybe it will take him two or three days to locate and then for preparation and travel to the place of
he will be required to go to court where you will miss your work attendance.
because you will be in court and yet the person who demand the
subpoena duces tecum has never been bothered to pay service Costs for court attendance and the production of
fee for that. Meaning, dapat magbayad siya reasonable cost. documents and other materials subject of the
subpoena shall be tendered or charged
Of course, the law does not say how much. Sa gobyerno nga accordingly. (6a)
papirma ka lang diyan ng isang pirma bayad ka na ng service fee.
How much more in the private sector, where you are requiring a
company to look for a document? He is the one to look and then
somebody will go to court. He will not be reporting for job and yet Section 7. Personal appearance in court. — A
you have not even offered anything to the company. We person present in court before a judicial officer
experienced this many times subpoena duces tecum, and then the may be required to testify as if he or she were in
manager of the bank will say, “do we have to comply with these?” attendance upon a subpoena issued by such court
Well, you do not want to comply. Puwede man. or officer. (7a)
When you received the subpoena duces tecum, may bayad ba?
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Section 8. Compelling attendance. — In case of

failure of a witness to attend, the court or judge
issuing the subpoena, upon proof of the service
thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province, or
his or her deputy, to arrest the witness and
bring him or her before the court or officer
where his or her attendance is required, and
the cost of such warrant and seizure of such
witness shall be paid by the witness if the court
issuing it shall determine that his or her failure
to answer the subpoena was willful and
without just excuse. (8a)
Section 9. Contempt. — Failure by any person

without adequate cause to obey a subpoena
served upon him or her shall be deemed a
contempt of the court from which the
subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto
shall be punished in accordance with the
applicable law or Rule. (9a)
Section 10. Exceptions. — The provisions of

Sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred
(100) kilometers from his or her residence to
the place where he or she is to testify by the
ordinary course of travel, or to a detention
prisoner if no permission of the court in which
his or her case is pending was obtained. (10a)
SUMMONS vs. SUBPOENA
Q: Distinguish SUBPOENA from SUMMONS.

1) SUBPOENA is directed to a witness; whereas SUMMONS is
directed to a defendant in a civil case;
2) In SUBPOENA, the witness is directed to appear in court or to
bring documents; whereas In SUMMONS, the defendant is
informed that a complaint is file against him and he must file a
responsive pleading within the period otherwise, judgment can be
rendered;
3) In SUBPOENA, the witness will be declared in contempt or his

attendance can be compelled by the issuance of a warrant for his
arrest; whereas In SUMMONS, a judgment in default will be
rendered against the defendant who fails to comply.
4) SUBPOENA applicable to both criminal and civil case; whereas

SUMMONS applies only to civil cases.
5) In SUBPOENA, there is a 100-km limitation of its enforceability;

whereas In SUMMONS, there is no distance limitation.
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Rule 22
Computation of time
Section 1. How to compute time. — In
computing any period of time prescribed or
allowed by these Rules, or by order of the court,
or by any applicable statute, the day of the act
or event from which the designated period of
time begins to run is to be excluded and the
date of performance included. If the last day of
the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the
place where the court sits, the time shall not
run until the next working day.
Sec. 2. Effect of interruption. —

Should an act be done which effectively
interrupts the running of the period, the
allowable period after such interruption shall
start to run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the
period.
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6 MODES OF DISCOVERY (Rule 23-29)

Deposition Pending Action (Rule 23)
Deposition before action or pending appeal (Rule 24)
Interrogatories to parties (Rule 25)
Admission by adverse party (Rule 26)
Production or Inspection of Documents (Rule 27)
Physical or mental examination of Persons (Rule 28)
“DISCOVERY”
In general, a discovery is a device employed by a party to obtain
information about relevant matters on the case from the adverse
party in preparation for the trial. (Riano 2007, p. 310)
As contemplated in the Rules, the device may be used by all the
parties to the case.
Purpose of discovery
The modes of discovery are designed to serve as an additional
device aside from a pre-trial, to narrow and clarify the basic issues
between the parties, to ascertain the facts relative to the issues
and to enable the parties to obtain the fullest possible knowledge
of the issues and facts before civil trials and thus prevent the said
trials to be carried on in the dark. It is intended to make certain
that all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference all issues of law and
fact and that they intend to raise at the trial, except such as may
involve privileged or impeaching matters (Tinio v. Manzano 307
SCRA 460; Mercader v. DBP 332 SCRA 82).
Note: Modes of discovery are intended to be cumulative and not

alternative nor mutually exclusive.
Discovery is not mandatory but failure to avail carries sanctions in

Rules 25 and 26.
BAR QUESTION: How do you distinguish Bill of Particulars from

Modes of Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to
clarify vague statements of ultimate facts, but it is not an
instrument to compel the other party to reveal evidentiary facts.
The Modes of Discovery are intended to compel the other party
to reveal his evidence and evidentiary facts.
Duty of the court in relation to the modes of discovery

The modes of discovery are considered by the SC as vital
components of case management in pre-trial courts. Hence, aside
from preparing the summons within one (1) day from the receipt
of the complaint, the court is required to issue an order requiring
the parties to avail of interrogatories to parties under Rule 25 and
request for admission by adverse party under Rule 26 or at their
discretion make use of depositions under Rule 23 or other
measures under Rules 27 and 28 within five (5) days from the filing
of the answer. A copy of this order shall be served upon the
defendant together with the summons. A copy of the order shall
also be served upon the plaintiff (A.M. No. 03-1-09-SC, July 13,
2004).
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Rule 23 2) consul general;

Depositions pending action 3) consul;
4) vice consul;
5) consular agent;
Section 1. Depositions pending action, when 6) person as may be appointed by commission or letters rogatory;
may be taken. — Upon ex parte motion of a 7) person authorized to administer oath. (Secs. 10 &11, Rule 3)
party, the testimony of any person, whether a
party or not, may be taken, at the instance of Commission
any party, by deposition upon oral examination -is authorization given to somebody, other than consular officers, to
or written interrogatories. The attendance of take the deposition of the deponent. It is usually issued when the
witnesses may be compelled by the use of a Philippines has no consular office in a particular country.
subpoena as provided in Rule 21. Depositions
shall be taken only in accordance with these Letters Rogatory
Rules. The deposition of a person confined in -is an instrument whereby the foreign court is informed of the
prison may be taken only by leave of court on pendency of the case and in the name of a foreign witnesses, and is
such terms as the court prescribes. requested to cause their depositions to be taken in due course of
law, for the furtherance of justice, with an offer of the party of the
-Under the new Rules, the taking of deposition is by ex-parte court making the request, to do like for the other, in similar case.
motion from a party. -letter will pass through a diplomatic channel; office of court
-Thus, the requirement that it should be by leave of court after administrator to DFA to embassy abroad
jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave Dulay vs. Dulay
after an answer has been served, is not anymore necessary. -Leave of court is not required when deposition is to be taken before
secretary of embassy or legation, consul general, consul, vice-consul
Deposition or consular agent of the RP and defendant’s answer has already
-It is the taking of testimony of any person, whether he be a party been served. However, if deposition is to be taken in foreign country
or not, but at the instance of a party to the action. where the Philippine has no secretary of embassy or legation, consul
-This testimony is taken out of court; not in court! general, consul, vice-consul or consular agent, it may be taken by
person as may be appointed by commission. The authentication
Two situations where deposition is taken: made by the consular officer was a ratification of the authority of
1. Rule 23- deposition pending action the notary public who took the questioned depositions.
2. Rule 24- deposition before action or pending appeal; same as
rule 134 Whose deposition may be taken
-Any person, whether a party or not, may be taken
Note: Sec. 1, Rule 23
1. Deposition de benne esse- If deposition is taken before action,
it is called:
2. In perpetuam rei memoriam- If deposition is taken before Again; file for ex parte motion for deposition if you want deposition
existence of the action, for appeal, of someone; if approved, now how is deposition taken?
Q: Is it necessary to ask permission from the court for the taking Section 15. Deposition upon oral examination;
of deposition if there is a pending action? notice; time and place. — A party desiring to take
A: YES! Because deposition can be taken upon ex- parte motion the deposition of any person upon oral
from a party (Sec. 1, Rule 23).; meaning, file an ex parte motion in examination shall give reasonable notice in
court writing, to every other party to the action. The
-Thus, the requirement that it should be by leave of court after notice shall state the time and place for taking the
jurisdiction has been obtained over any defendant or over deposition and the name and address of each
property which is the subject of the action, or without such leave person to be examined, if known, and if the name
after an answer has been served, is not anymore necessary. is not known, a general description sufficient to
identify him or her or the particular class or group
Q: How is deposition taken? to which he belongs. On motion of any party upon
A: whom the notice is served, the court may for
1. Deposition upon oral examination cause shown enlarge or shorten the time.
2. Deposition upon written interrogatories
Q: Whose deposition may be taken?
Q: Before whom may deposition be taken? - deposition officer A: Any person, whether a party or not, may be taken (Sec. 1, Rule
A: It depends on place where deposition is taken 23)
If deposition will be taken within the Philippines: Q: How is deposition taken?
1) judge; judge where deposition will be taken! Not one handling A: Section 15. Deposition upon oral examination; notice; time and
the case place. — A party desiring to take the deposition of any person upon
2) notary public; oral examination shall give reasonable notice in writing to every
3) person authorized to administer oath. other party to the action. The notice shall state the time and place
for taking the deposition and the name and address of each person
If in foreign country: to be examined, if known, and if the name is not known, a general
1) secretary of embassy or legation (ambassador) description sufficient to identify him or the particular class or group
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Amilhamja, Adj.
to which he belongs. On motion of any party upon whom the 1. any matter not privileged
notice is served, the court may for cause shown enlarge or 2. location of any books, documents, or other tangible
shorten the time. things and the identity and location of persons having
knowledge of relevant facts.
Note that everything is recorded and written!
Limitations on deposition taking
Deposition upon written interrogatories -Matter inquired into is not privilege.
-practicality; to save resources -Matter inquired into is relevant pending action.
Section 25. Deposition upon written -Court may issue order to protect the parties (Sec. 16 & 18).
interrogatories; service of notice and of
Section 3. Examination and cross- examination. —
interrogatories. — A party desiring to take the
Examination and cross-examination of deponents
deposition of any person upon written
may proceed as permitted at the trial under
interrogatories shall serve them upon every
sections 3 to 18 of Rule 132. (3)
other party with a notice stating the name and
address of the person who is to answer them
and the name or descriptive title and address of Section 4. Use of depositions. — At the trial or
the officer before whom the deposition is to be upon the hearing of a motion or an interlocutory
taken. Within ten (10) calendar days thereafter, proceeding, any part or all of a deposition, so far
a party so served may serve cross- as admissible under the rules of evidence, may be
interrogatories upon the party proposing to used against any party who was present or
take the deposition. Within five (5) calendar represented at the taking of the deposition or who
days thereafter, the latter may serve re-direct had due notice thereof, in accordance with any
interrogatories upon a party who has served one of the following provisions;
cross- interrogatories. Within three (3)
calendar days after being served with re-direct (a) Any deposition may be used by any party for
interrogatories, a party may serve recross- the purpose of contradicting or impeaching the
interrogatories upon the party proposing to testimony of deponent as a witness;
take the deposition. (b) The deposition of a party or of any one who at
the time of taking the deposition was an officer,
What is the liability of officers? director, or managing agent of a public or private
corporation, partnership, or association which is a
Section 26. Officers to take responses and party may be used by an adverse party for any
prepare record. — A copy of the notice and purpose;
copies of all interrogatories served shall be
delivered by the party taking the deposition to (c) The deposition of a witness, whether or not a
the officer designated in the notice, who shall party, may be used by any party for any purpose if
proceed promptly, in the manner provided by the court finds: (1) that the witness is dead, or (2)
sections 17, 19 and 20 of this Rule, to take the that the witness resides at a distance more than
testimony of the witness in response to the one hundred (100) kilometers from the place of
interrogatories and to prepare, certify, and file trial or hearing, or is out of the Philippines, unless
or mail the deposition, attaching thereto the it appears that his or her absence was procured by
copy of the notice and the interrogatories the party offering the deposition, or (3) that the
received by him or her. witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment, or (4)
that the party offering the deposition has been
Supposing the party sought to be examined refuse to appear? unable to procure the attendance of the witness
-The attendance of witnesses may be compelled by the use of by subpoena; or (5) upon application and notice,
subpoena under Rule 21. Subpoena is from Court where that such exceptional circumstances exist as to
subpoena is to be taken make it desirable, in the interest of justice and
with due regard to the importance of presenting
the testimony of witnesses orally in open court, to
Section 2. Scope of examination. — Unless
allow the deposition to be used; and
otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may (d) If only part of a deposition is offered in
be examined regarding any matter, not evidence by a party, the adverse party may
privileged, which is relevant to the subject of require him or her to introduce all of it which is
the pending action, whether relating to the relevant to the part introduced, and any party
claim or defense of any other party, including may introduce any other parts.
the existence, description, nature, custody,
condition, and location of any books, >Use of deposition:
documents, or other tangible things and the 1. In what proceedings may it be used
identity and location of persons having -trial
knowledge of relevant facts. (2) -hearing of motion
-hearing of interlocutory proceeding
What may be asked during the taking of the 2. Against whom may it be sued?
deposition? -against any party who was present
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Amilhamja, Adj.
-against a party who was not present but notified Section 9. Rebutting deposition. — At the trial or
hearing any party may rebut any relevant
For what purpose it may be used: evidence contained in a deposition whether
A. For impeaching purposes if the deponent is a witness introduced by him or her or by any other party.
B. It may be used for any purpose if the deponent is a party
C. It may be used for any purpose if:
◦ 1) that the witness is dead; or Section 10. Persons before whom depositions may
◦ 2) that the witness resides at a distance more than one hundred be taken within the Philippines. — Within the
(100) kilometers from the place of trial or hearing, or is out of the Philippines, depositions may be taken before any
Philippines, unless it appears that his absence was procured by judge, notary public, or the person referred to in
the party offering the deposition; or Section 14 hereof. (10)
◦3) that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or
C. It may be used for any purpose if: Section 11. Persons before whom depositions may
◦4) that the party offering the deposition has been unable to be taken in foreign countries. — In a foreign state
procure the attendance of the witness by subpoena; or or country, depositions may be taken (a) on notice
◦5) upon application and notice, that such exceptional before a secretary of embassy or legation, consul
circumstances exist as to make it desirable, in the interest of general, consul, vice-consul, or consular agent of
justice and with due regard to the importance of presenting the the Republic of the Philippines, (b) before such
testimony of witnesses orally in open court, to allow the person or officer as may be appointed by
deposition to be used. commission or under letters rogatory; or (c) the
person referred to in section 14 hereof. (11)
Section 5. Effect of substitution of parties. —

Substitution of parties does not affect the right Section 12. Commission or letters rogatory. — A
to use depositions previously taken; and, when commission or letters rogatory shall be issued
an action has been dismissed and another only when necessary or convenient, on
action involving the same subject is afterward application and notice, and on such terms, and
brought between the same parties or their with such direction as are just and appropriate.
representatives or successors in interest, all Officers may be designated in notices or
depositions lawfully taken and duly filed in the commissions either by name or descriptive title
former action may be used in the latter as if and letters rogatory may be addressed to the
originally taken therefor. (5) appropriate judicial authority in the foreign
country. (12)
Section 6. Objections to admissibility. —

Subject to the provisions of section 29 of this Section 13. Disqualification by interest. — No
Rule, objection may be made at the trial or deposition shall be taken before a person who is a
hearing, to receiving in evidence any deposition relative within the sixth degree of consanguinity
or part thereof for any reason which would or affinity, or employee or counsel of any of the
require the exclusion of the evidence if the parties, or who is a relative within the same
witness were then present and testifying (6) degree, or employee of such counsel; or who is
financially interested in the action. (13)
When is the objection made on the admissibility of the
deposition? – at the trila or hearing to receiving not on
time deposition is being taken Section 14. Stipulations regarding taking of
depositions. — If the parties so stipulate in
Section 7. Effect of taking depositions. — A writing, depositions may be taken before any
party shall not be deemed to make a person his person authorized to administer oaths, at any
or her own witness for any purpose by taking time or place, in accordance with these Rules and
his or her deposition. when so taken may be used like other depositions.
(14)
Section 8. Effect of using depositions. — The

introduction in evidence of the deposition or Section 16. Orders for the protection of parties
any part thereof for any purpose other than and deponents. — After notice is served for taking
that of contradicting or impeaching the a deposition by oral examination, upon motion
deponent makes the deponent the witness of seasonably made by any party or by the person to
the party introducing the deposition, but this be examined and for good cause shown, the court
shall not apply to the use by an adverse party in which the action is pending may make an order
of a deposition as described in paragraph (b) of that the deposition shall not be taken, or that it
section 4 of this Rule. (8) may be taken only at some designated place other
It is by USING their deposition that will make them your than that stated in the notice, or that it may be
witness and not by taking it. taken only on written interrogatories, or that
certain matters shall not be inquired into, or that
the scope of the examination shall be held with no
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Amilhamja, Adj.
one present except the parties to the action

and their officers or counsel, or that after being
Section 19. Submission to witness; changes;
sealed the deposition shall be opened only by
signing. — When the testimony is fully
order of the court, or that secret processes,
transcribed, the deposition shall be submitted to
developments, or research need not be
the witness for examination and shall be read to
disclosed, or that the parties shall
or by him or her, unless such examination and
simultaneously file specified documents or
reading are waived by the witness and by the
information enclosed in sealed envelopes to be
parties. Any changes in form or substance which
opened as directed by the court or the court
the witness desires to make shall be entered upon
may make any other order which justice
the deposition by the officer with a statement of
requires to protect the party or witness from
the reasons given by the witness for making them.
annoyance, embarrassment, or oppression.
The deposition shall then be signed by the
(16)
witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be found
or refuses to sign. If the deposition is not signed
Section 17. Record of examination, oath;
by the witness, the officer shall sign it and state on
objections. — The officer before whom the
the record the fact of the waiver or of the illness
deposition is to be taken shall put the witness
or absence of the witness or the fact of the refusal
on oath and shall personally, or by some one
to sign together with the reason be given therefor,
acting under his or her direction and in his or
if any, and the deposition may then be used as
her presence, record the testimony of the
fully as though signed, unless on a motion to
witness. The testimony shall be taken
suppress under section 29 (f) of this Rule, the
stenographically unless the parties agree
court holds that the reasons given for the refusal
otherwise. All objections made at the time of
to sign require rejection of the deposition in
the examination to the qualifications of the
whole or in part.
officer taking the deposition, or to the manner
of talking it, or to the evidence presented, or to
the conduct of any party, and any other
Section 20. Certification, and filing by officer. —
objection to the proceedings, shall be noted by
The officer shall certify on the deposition that the
the officer upon the deposition. Evidence
witness was duly sworn to by him or her and that
objected to shall be taken subject to the
the deposition is a true record of the testimony
objections. In lieu of participating in the oral
given by the witness. He or she shall then securely
examination, parties served with notice of
seal the deposition in an envelope indorsed with
taking a deposition may transmit written
the title of the action and marked “Deposition of
interrogatories to the officers, who shall
(here insert the name of witness)” and shall
propound them to the witness and record the
promptly file it with the court in which the action
answers verbatim.
is pending or send it by registered mail to the clerk
thereof for filing.
Section 18. Motion to terminate or limit
examination. — At any time during the taking
Section 21. Notice of filing. — The officer taking
of the deposition, on motion or petition of any
the deposition shall give prompt notice of its filing
party or of the deponent, and upon a showing
to all the parties. (21)
that the examination is being conducted in bad
faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or Section 22. Furnishing copies. — Upon payment of
party, the court in which the action is pending reasonable charges therefor, the officer shall
or the Regional Trial Court of the place where furnish a copy of the deposition to any party or to
the deposition is being taken may order the the deponent. (22)
officer conducting the examination to cease
forthwith from taking the deposition, or may
limit the scope and manner of the taking of the Section 23. Failure to attend of party giving notice.
deposition, as provided in section 16 of of this — If the party giving the notice of the taking of a
Rule. If the order made terminates the deposition fails to attend and proceed therewith
examination, it shall be resumed thereafter and another attends in person or by counsel
only upon the order of the court in which the pursuant to the notice, the court may order the
action is pending. Upon demand of the party giving the notice to pay such other party the
objecting party or deponent, the taking of the amount of the reasonable expenses incurred by
deposition shall be suspended for the time him or her and his or her counsel in so attending,
necessary to make a notice for an order. In including reasonable attorney’s fees.
granting or refusing such order, the court may
impose upon either party or upon the witness
the requirement to pay such costs or expenses Section 24. Failure of party giving notice to serve
as the court may deem reasonable. (18) subpoena. — If the party giving the notice of the
taking of a deposition of a witness fails to serve a
subpoena upon him or her and the witness
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Amilhamja, Adj.
because of such failure does not attend, and if

another party attends in person or by counsel Q: What may be asked during the taking of deposition?
because he or she expects the deposition of A: SECTION 2. Scope of examination. — Unless otherwise ordered by
that witness to be taken, the court may order the court as provided by Section 16 or 18 of this Rule, the deponent
the party giving the notice to pay to such other may be examined regarding any matter, not privileged, which is
party the amount of the reasonable expenses relevant to the subject of the pending action, whether relating to the
incurred by him or her and his or her counsel in claim or defense of any other party, including the existence,
so attending, including reasonable attorney’s description, nature, custody, condition, and location of any books,
fees. documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts.
Section 26. Officers to take responses and
Limitations on deposition taking
prepare record. — A copy of the notice and
1. Matter inquired into is not privilege.
copies of all interrogatories served shall be
2. Matter inquired into is relevant pending action.
delivered by the party taking the deposition to
3. Court may issue order to protect the parties (Sec. 16 & 18).
the officer designated in the notice, who shall
proceed promptly, in the manner provided by
Q: When is objection made on the admissibility of the deposition?
sections 17, 19 and 20 of this Rule, to take the
A: SECTION 6. Objections to Admissibility. — Subject to the
testimony of the witness in response to the
provisions of Section 29 of this Rule, objection may be made at the
interrogatories and to prepare, certify, and file
trial or hearing to receiving in evidence any deposition or part
or mail the deposition, attaching thereto the
thereof for any reason which would require the exclusion of the
copy of the notice and the interrogatories
evidence if the witness were then present and testifying.
received by him or her.
Use of Deposition
Section 27. Notice of filing and furnishing In what proceedings may it be used:
copies. — When a deposition upon • Trial
interrogatories is filed, the officer taking it shall • Hearing of motion
promptly give notice thereof to all the parties, • Hearing of interlocutory proceeding
and may furnish copies to them or to the Against whom may it be sued:
deponent upon payment of reasonable charges • Against any party who was present
therefor. (27) • Against a party who was not present but notified
For what purpose it may be used:
A. For impeaching purposes if the deponent is a witness
Section 28. Order for the protection of parties B. It may be used for any purpose if the deponent is a party C. It may
and deponents. — After the service of the be used for any purpose if:
interrogatories and prior to the taking of the 1) that the witness is dead; or
testimony of the deponent, the court in which 2) that the witness resides at a distance more than one hundred
the action is pending, on motion promptly (100) kilometers from the place of trial or hearing, or is out of the
made by a party or a deponent, and for good Philippines, unless it appears that his absence was procured by the
cause shown, may make any order specified in party offering the deposition; or
sections 15, 16 and 18 of this Rule which is 3) that the witness is unable to attend or testify because of age,
appropriate and just or an order that the sickness, infirmity, or imprisonment; or
deposition shall not be taken before the officer 4) that the party offering the deposition has been unable to procure
designated in the notice or that it shall not be the attendance of the witness by subpoena; or
taken except upon oral examination. (28) 5) upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
Can you object the taking of deposition? NO! regard to the importance of presenting the testimony of witnesses
Can you ask court to prohibit deposition? NO since ex parte orally in open court, to allow the deposition to be used. (Sec.4, Rule)
motion nga!
Effect of using deposition
Section 8. Effect of Using Depositions. — The introduction in
evidence of the deposition or any part thereof for any purpose other
Q: Supposing the party sought to be examined refused to appear? than that of contradicting or impeaching the deponent makes the
A: The attendance of witnesses may be compelled by the use of deponent the witness of the party introducing the deposition, but
subpoena under Rule 21. (Sec. 1, Rule 23) this shall not apply to the use by an adverse party of a deposition as
Q: Where do you apply the subpoena? described in paragraph (b) of Section 4 of this rule.
A: SECTION 5. Subpoena for depositions. — Proof of service of a SECTION 7. Effect of Taking Depositions. — A party shall not be
notice to take a deposition, as provided in Sections 15 and 25 of deemed to make a person his own witness for any purpose by taking
Rule 23, shall constitute sufficient authorization for the issuance his deposition.
of subpoenas for the persons named in said notice by the clerk of
the court of the place in which the deposition is to be taken. The
clerk shall not, however, issue a subpoena duces tecum to any
such person without an order of the court.
In short, the court of the place where the deposition shall be
taken.
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Section 29. Effect of errors and irregularities in

depositions. —
a) As to notice. — All errors and
irregularities in the notice for taking a
deposition are waived unless written objection
is promptly served upon the party giving the
notice.
b) As to disqualification of officer. — Objection
to taking a deposition because of
disqualification of the officer before whom it is
to be taken is waived unless made before the
taking of the deposition begins or as soon
thereafter as the disqualification becomes
known or could be discovered with reasonable
diligence.
c) As to competency or relevancy of evidence.
— Objections to the competency of witness or
the competency, relevancy, or materiality of
testimony are not waived by failure to make
them before or during the taking of the
deposition, unless the ground, of the objection
is one which might have been obviated or
removed if presented at that time.
d) As to oral examination and other particulars.
— Errors and irregularities occurring at the oral
examination in the manner of taking the
deposition in the form of the questions or
answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at the
taking of the deposition.
e) As to form of written interrogatories. —
Objections to the form of written
interrogatories submitted under sections 25
and 26 of this Rule are waived unless served in
writing upon the party propounding them
within the time allowed for serving succeeding
cross or other interrogatories and within three
(3) calendar days after service of the last
interrogatories authorized.
f) As to manner of preparation. — Errors and
irregularities in the manner in which the
testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by
the officer under sections 17, 19, 20 and 26 of
this Rule are waived unless a motion to
suppress the deposition or some part thereof is
made with reasonable promptness after such
defect is, or with due diligence might have
been, ascertained.
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Rule 24
Section 3. Notice and service. — The petitioner
Depositions before action or pending appeal shall serve a notice upon each person named in
Section 1. Depositions before action; petition. the petition as an expected adverse party,
— A person who desires to perpetuate his or together with a copy of the petition, stating that
her own testimony or that of another person the petitioner will apply to the court, at a time and
regarding any matter that may be cognizable in place named therein, for the order described in
any court of the Philippines may file a verified the petition. At least twenty (20) calendar days
petition in the court of the place of the before the date of the hearing, the court shall
residence of any expected adverse party. cause notice thereof to be served on the parties
and prospective deponents in the manner
provided for service of summons.
-The same as Rule 134 – Perpetuation of Testimony; deposition
in perpetuam memoriam
Section 4. Order and examination. — If the court
Even before filing of action, you can already take deposition of
is satisfied that the perpetuation of the testimony
person or a witness! may prevent a failure or delay of justice, it shall
make an order designating or describing the
Venue of petition? person whose deposition may be taken and
-Residence of the expected adverse party
specifying the subject matter of the examination
and whether the depositions shall be taken upon
Section 2. Contents of petition. — The petition oral examination or written interrogatories. The
shall be entitled in the name of the petitioner depositions may then be taken in accordance with
and shall show: (a) that the petitioner expects Rule 23 before the hearing. (4)
to be a party to an action in a court of the
Philippines but is presently unable to bring it or
cause it to be brought; (b) the subject matter of Section 5. Reference to court. — For the purpose
the expected action and his or her interest of applying Rule 23 to depositions for
therein; (c) the facts which he or she desires to perpetuating testimony, each reference therein to
establish by the proposed testimony and his or the court in which the action is pending shall be
her reasons for desiring to perpetuate it; (d) the deemed to refer to the court in which the petition
names or a description of the persons he or she for such deposition was filed. (5)
expects will be adverse parties and their Section 6. Use of deposition. — If a deposition to
addresses so far as known; and (e) the names perpetuate testimony is taken under this Rule, or
and addresses of the persons to be examined if, although not so taken, it would be admissible in
and the substance of the testimony which he or evidence, it may be used in any action involving
she expects to elicit from each, and shall ask for the same subject matter subsequently brought in
an order authorizing the petitioner to take the accordance with the provisions of Sections 4 and
depositions of the persons to be examined 5 of Rule 23. (6)
named in the petition for the purpose of
perpetuating their testimony. Section 7.Depositions pending appeal. — If an
appeal has been taken from a judgment of a court,
including the Court of Appeals in proper cases, or
Contents of petition before the taking of an appeal if the time therefor
(a) that the petitioner expects to be a party to an action has not expired, the court in which the judgment
(b) the subject matter of the expected action and his interest was rendered may allow the taking of depositions
therein; of witnesses to perpetuate their testimony for in
(c) the facts which he desires to establish by the proposed the event of further proceedings in the said court.
testimony and his reasons for desiring to perpetuate it; In such case the party who desires to perpetuate
(d) the names or a description of the persons he expects will be the testimony may make a motion in the said
adverse parties and their addresses so far as known; and court for leave to take the depositions, upon the
(e) the names and addresses of the persons to be examined and same notice and service thereof as if the action
the substance of the testimony which he expects to elicit from was pending therein. The motion shall state
each, and shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the (a) the names and addresses of the persons to be
petition for the purpose of perpetuating their examined and the substance of the testimony
testimony.(Section 2, Rule 24). which he or she expects to elicit from each, and (b)
the reason for perpetuating their testimony. If the
Procedure court finds that the perpetuation of the testimony
1. File Petition (Sec. 2) is proper to avoid a failure or delay of justice, it
2. Petitioner shall serve notice to all person named in the may make an order allowing the deposition to be
petition. (Sec. 3) taken, and thereupon the depositions may be
3. If the court is satisfied, it shall issue order granting the taken and used in the same manner and under the
petition. (Sec. 4) same conditions as are prescribed in these Rules
4. Deposition taking will follow Rule 23. (sec. 4) for depositions taken in pending actions.
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Deposition pending appeal

If an appeal has been taken from a judgment of a court, including
the Court of Appeals in proper cases, or before the taking of an
appeal if the time therefor has not expired, the court in which
the judgment was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use in the event
of further proceedings in the said court. In such case the party
who desires to perpetuate the testimony may make a motion in
the said court for leave to take the depositions, upon the same
notice and service thereof as if the action was pending therein.
(Sec. 7, Rule 24)
Why is there a need to file deposition if there is appeal?
-ie. You want to present a witness but court disallows you! If
court said, “ok, remanded” what if patay na yung need mon a
mga tao? That is the importance of deposition pending appeal
Contents of the Motion

The motion shall state:
(a) The names and addresses of the persons to be examined and
the substance of the testimony which he expects to elicit from
each; and
(b) The reason for perpetuating their testimony.
If motion is granted- Rule 23

1. Oral examination
2. Written interrogatories
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Rule 25 SECTION 6. Effect of Failure to Serve Written

Interrogatories to parties Interrogatories. — Unless thereafter allowed by
the court for good cause shown and to prevent a
Section 1. Interrogatories to parties; service
failure of justice, a party not served with written
thereof. — Upon ex parte motion, any party
interrogatories may not be compelled by the
desiring to elicit material and relevant facts
adverse party to give testimony in open court, or
from any adverse parties shall file and serve
to give a deposition pending appeal.
upon the latter written interrogatories to be
answered by the party served or, if the party
served is a public or private corporation or a Effect of failure to serve written interrogatories
partnership or association, by any officer -You cannot call adverse party as adverse case
thereof competent to testify in its behalf.
-Under the new Rules, the taking of deposition is by ex-parte

motion from a party.
- Thus, the requirement that it should be by leave of court after
jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave
after an answer has been served, is not anymore necessary.
N.B. Written interrogatories are directed to adverse party, not to

strangers.
RULE 23
1. There is deposition officer in taking deposition
2. Questions are prepared beforehand
3. Party or not may be taken
RULE 25
1. No deposition officer
2. Directed to parties
3. Not applicable to stranger
Section 2. Answer to interrogatories. — The

interrogatories shall be answered fully in
writing and shall be signed and sworn to by the
person making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party
submitting the interrogatories within fifteen
(15) calendar days after service thereof unless
the court on motion and for good cause shown,
extends or shortens the time.
Section 3. Objections to interrogatories. —

Objections to any interrogatories may be
presented to the court within ten (10) calendar
days after service thereof, with notice as in case
of a motion; and answers shall be deferred until
the objections are resolved, which shall be at as
early a time as is practicable.
Section 5. Scope and ust of interrogatories-

Interrogatories- interrogatories may relate to
any matters that can be inquired into under
Section 2 of rule 23 and the answers ma ybe
used for the same purposes provided in Section
4 of the same rule.
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Rule 26 Section 3. Effect of admission. — Any admission

Admission by adverse party made by a party pursuant to such request is for
Section 1. Request for admission. — At any the purpose of the pending action only and shall
time after issues have been joined, a party may not constitute an admission by him or her for any
file and serve upon any other party a written other purpose nor may the same be used against
request for the admission by the latter of the him or her in any other proceeding. (3a)
genuineness of any material and relevant Effect of admission?
document described in and exhibited with the -admitted for the purpose of the pending action only
request or of the truth of any material and -SUCH ADMISSION CANNOT BE USED FOR OTHER CASES
relevant matter of fact set forth in the request.
Copies of the documents shall be delivered
with the request unless copies have already Section 4. Withdrawal. — The court may allow the
been furnished. (1) party making an admission under this Rule,
-After issues have been joined = there is already a complaint + whether express or implied, to withdraw or
there is already a responsive pleading amend it upon such terms as may be just. (4)
Section 2. Implied admission. — Each of the Section 5. Effect of failure to file and serve request
matters of which an admission is requested for admission. — Unless otherwise allowed by the
shall be deemed admitted unless, within a court for good cause shown and to prevent a
period designated in the request, which shall failure of justice, a party who fails to file and serve
not be less than fifteen (15) calendar days after a request for admission on the adverse party of
service thereof, or within such further time as material and relevant facts at issue which are, or
the court may allow on motion, the party to ought to be, within the personal knowledge of the
whom the request is directed files and serves latter, shall not be permitted to present evidence
upon the party requesting the admission a on such facts. (5)
sworn statement either denying specifically the
matters of which an admission is requested or
setting forth in detail the reasons why he or she If the actionable document is already denied under oath, it need
cannot truthfully either admit or deny those not be subject of request for admission.
matters. =lahat na ng sineny nya sa oath, wag mon a ipaadmit
A party should not be compelled to admit matters of fact already
Objections to any request for admission shall admitted by his pleading and concerning which there is no issue, nor
be submitted to the court by the party should he be required to make a second denial of those already
requested within the period for and prior to the denied in his answer to the complaint. (Po vs. CA, 164 SCRA 668)
filing of his or her sworn statement as
contemplated in the preceding paragraph and Q: If the request is addressed to the lawyer of the adverse party
his or her compliance therewith shall be and the latter did not answer the request, would it have the effect
deferred until such objections are resolved, of admitting the matters subject of the request?
which resolution shall be made as early as A: No. The SC held that request for admission must be served directly
practicable. (2a) upon the party requested. (NOT to the lawyer) Otherwise, that party
cannot be deemed to have admitted the genuineness of any relevant
Objection to admission matters of the fact set forth therein on account of the failure to
Objections to any request for admission shall be submitted to the answer the request for admission(Lanadavs.CA,GR.No.102390,
court by the party requested within the period for and prior to the February 1, 2002).
filing of his sworn statement as contemplated in the preceding
paragraph and his compliance therewith shall be deferred until Purpose of written request for admission:
such objections are resolved, which resolution shall be made as To expedite trial and relieve the parties of the costs of proving facts
early as practicable (Sec. 2, Rule 26). which will not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry.
What happens when you ignore?
-Matters requested for admission shall be deemed admitted When request may be made:
At any time after the issues have been joined (after the responsive
Can you object to admission? pleading has been served).
-yes. Objections to any request for admission shall be submitted
to the court by the party requested within the period for and prior Q: What will you request the other party to admit?
to the filing of his or her sworn statement as contemplated in the A:
preceding paragraph and his or her compliance therewith shall be 1) The genuineness of any material and relevant document
deferred until such objections are resolved, which resolution shall described in and exhibited with the request and/or of
be made as early as practicable. (2a) 2) the truth of any material and relevant matter of fact set forth in
the request orin the request; or
3) a matter of fact not related to any documents may be presented
to the other party for admission or denial.
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Q: When do you apply this mode of discovery?

A: “At anytime after issues have been joined.” Meaning, there is
already an answer.
Q: Is LEAVE OF COURT required under Rule 26?

A: It is totally UNNECESSARY but a request for admission under
Rule 26 can only be started according to Section 1, “At any time
after issues have been joined.” So it presupposes that there is
already an answer. Unlike in interrogatories, you can do it even
before an answer is served provided there is leave of court. This
is the second difference between Rule 25 and Rule 26.
Request for admission and actionable document

The former is proper when the genuineness of an evidentiary
document is sought to be admitted. If not denied under oath, its
genuineness is deemed impliedly admitted. Essentially it is a
mode of discovery; while the latter must be attached to the
complaint or copied therein. Its genuineness and due execution is
deemed impliedly admitted unless specifically denied under oath,
by the adverse party.
BAR QUESTION: A sends a request for admission to B and B made

an admission. However, during the trial, A did not offer in
evidence the answers to the request. Can the court take judicial
notice of the answers?
A: Based on THE OLD RULES, it would seem NO because a request
for admission is purely an extrajudicial matter between the
parties. But if the same question is asked NOW, the answer would
be YES, because under the NEW RULES, you are already required
to file and serve. Therefore the court may now take judicial notice
because it already forms part of the record.
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Rule 27 to compel the defendant to produce the stock-and-transfer book,

Production or inspection of documents or even if the latter interpose the defense that plaintiff is not a
things stockholder. (Insigne vs. Abra Valley Colleges, July 29, 2015)
Section 1. Motion for production or
inspection; order. — Upon motion of any
party showing good cause therefor, the court
in which an action is pending may (a) order
any party to produce and permit the
inspection and copying or photographing, by
or on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which
constitute or contain evidence material to any
matter involved in the action and which are in
his or her possession, custody or control, or (b)
order any party to permit entry upon
designated land or other property in his or her
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any designated
relevant object or operation thereon. The
order shall specify the time, place and manner
of making the inspection and taking copies
and photographs, and may prescribe such
terms and conditions as are just. (1a)
-no substantial amendment was made here
What to file: Motion for production or inspection

Purpose: To produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved
in the action and which are in his possession, custody or control
(Sec. 1, Rule 28);
Ie. Defendant filed an actionable document, you can inspect

such document and you can file motion for production and
inspection
Subpoena Duces Tecum

-you would require presentation of particular document in
court
Q: Distinguish Rule 27 from Subpoena Duces Tecum

A:
1. There is a need to show good cause for production or
inspection of documents while good cause is not required in
subpoena duces tecum.
2. An order for production or inspection of documents can only
be directed to a party while subpoena duces tecum may be
directed to a non-party.
3. An order for production or inspection of documents is a pre-
trial device to obtain fact to prepare for trial while subpoena
duces tecum is a process used during trial proper.
Cases:
If sought to be examined is a record regarding the drug
rehabilitation of a party, then such matter cannot be the
subject of an order for examination of documents because it is
a matter of privilege. (Chan vs. Chan, July 24, 2013)
In a complaint for inspection of corporate books, the plaintiff

can file for a motion for production/inspection of documents
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Rule 28
Physical and mental examinations of persons
Q: What if the party examined refused to deliver the report or the
physician fails to make such report, what is the remedy of the
Section 1. When examination may be ordered. requesting party?
— In an action in which the mental or physical A: If the party examined refuses to deliver such report, the court
condition of a party is in controversy, the court on motion and notice may make an order requiring delivery on
in which the action is pending may in its such terms as are just, and if a physician fails or refuses to make
discretion order him or her to submit to a such a report the court may exclude his testimony if offered at the
physical or mental examination by a trial (Sec. 3e, Rule 28).
physician. (1a)
SECTION 4. Waiver of Privilege. — By requesting
When is an examination may be ordered? and obtaining a report of the examination so
N.B. In an action in which the mental or physical condition of a ordered or by taking the deposition of the
party is in controversy. examiner, the party examined waives any
privilege he may have in that action or any other
Examples: involving the same controversy, regarding the
1. Action insanity for annulment of contract on the ground of testimony of every other person who has
2. Petition for guardianship of a person alleged to be insane examined or may thereafter examine him in
3. Action to recover damages for personal injury where the respect of the same mental or physical
issue is the extent of the injuries of the plaintiff examination (Rule 28).
What is the effect if the party examined requests and obtains a
Q; What is the effect if the party refused to be examined? report of the examination so ordered or take the deposition of the
A: The requesting party may request from the Court an Order examiner?
that the designated facts subject of the request shall be -i.e. patient-doctor privilege
deemed established (Sec. 3(a), Rule 29).
CAN YOU COMPEL the party to subject himself to mental and

physical examination?
NO! The party sought to be examined cannot be arrested, even
if he refused the follow the order of the court (Sec. 3(d), Rule
29).
Section 2. Order for examination. — The order

for examination may be made only on motion
for good cause shown and upon notice to the
party to be examined and to all other parties,
and shall specify the time, place, manner,
conditions and scope of the examination and
the person or persons by whom it is to be
made. (2)
Section 3. Report of findings. — If requested

by the party examined, the party causing the
examination to be made shall deliver to him or
her a copy of a detailed written report of the
examining physician setting out his or her
findings and conclusions. After such request
and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a
like report of any examination, previously or
thereafter made, of the same mental or
physical condition.
If the party examined refuses to deliver such
report, the court on motion and notice may
make an order requiring delivery on such
terms as are just, and if a physician fails or
refuses to make such a report, the court may
exclude his or her testimony if offered at the
trial. (3a)
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Section 3. Other Consequences. — If any party or

an officer or managing agent of a party refuses to
Rule 29
obey an order made under Section 1 of this Rule
Refusal to comply with modes of discovery requiring him or her to answer designated
questions, or an order under Rule 27 to produce
any document or other thing for inspection,
Section 1. Refusal to Answer. — If a party or copying, or photographing or to permit it to be
other deponent refuses to answer any done, or to permit entry upon land or other
question upon oral examination, the property, or an order made under Rule 28
examination may be completed on other requiring him or her to submit to a physical or
matters or adjourned as the proponent of the mental examination, the court may make such
question may prefer. The proponent may orders in regard to the refusal as are just, and
thereafter apply to the proper court of the among others the following:
place where the deposition is being taken, for
an order to compel an answer. The same (a) An order that the matters regarding which the
procedure may be availed of when a party or questions were asked, or the character or
a witness refuses to answer any interrogatory description of the thing or land, or the contents
submitted under Rules 23 or 25. of the paper, or the physical or mental condition
of the party, or any other designated facts shall
If the application is granted, the court shall be taken to be established for the purposes of
require the refusing party or deponent to the action in accordance with the claim of the
answer the question or interrogatory and if it party obtaining the order;
also finds that the refusal to answer was
without substantial justification, it may (b) An order refusing to allow the disobedient
require the refusing party or deponent or the party to support or oppose designated claims or
counsel advising the refusal, or both of them, defenses or prohibiting him or her from
to pay the proponent the amount of the introducing in evidence designated documents
reasonable expenses incurred in obtaining the or things or items of testimony, or from
order, including attorney's fees. introducing evidence of physical or mental
condition;
If the application is denied and the court finds
that it was filed without substantial (c) An order striking out pleadings or parts
justification, the court may require the thereof, or staying further proceedings until the
proponent or the counsel advising the filing of order is obeyed, or dismissing the action or
the application, or both of them, to pay to the proceeding or any part thereof, or rendering a
refusing party or deponent the amount of the judgement by default against the disobedient
reasonable expenses incurred in opposing the party; and
application, including attorney's fees. (1) (d) In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest of
REMEDY? Apply for the issuance of subpoena!!! any party or agent of a party for disobeying any
of such orders except an order to submit to a
NOTE: This is applicable in taking of deposition under Rule 23 physical or mental examination. (3a)
and 25
Other consequences of refusal to answer question during Other consequences of refusal to answer question during
deposition, or order production or inspection of documents or deposition, or order production or inspection of documents or
things under Rule 27 or refused to submit himself for things under Rule 27 or refused to submit himself for examination
under Rule 28
examination under Rule 28.
1. An order that the matters regarding which the questions were
asked, or the character or description of the thing or land, or the
An order refusing to allow the disobedient party to support or contents of the paper, or the physical or mental condition of the
oppose designated claims or defenses or prohibiting him from party, or any other designated facts shall be taken to be
introducing in evidence designated documents or things or established for the purposes of the action in accordance with the
items of testimony, or from introducing evidence of physical or claim of the party obtaining the order (Sec. 3(a), Rule 29).
mental condition (Sec. 3(b), Rule 29). 2. An order refusing to allow the disobedient party to support or
oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items
Section 2. Contempt of Court. — If a party or of testimony, or from introducing evidence of physical or mental
other witness refuses to be sworn or refuses condition (Sec. 3(b), Rule 29).
to answer any question after being directed to 3. An order striking out pleadings or parts thereof, or staying
do so by the court of the place in which the further proceedings until the order is obeyed, or dismissing the
deposition is being taken, the refusal may be action or proceeding or any part thereof, or rendering a judgment
considered a contempt of that court (2). by default against the disobedient party (Sec. 3(c), Rule 29).
Please take NOTE:
-This remedy is available in case of failure of the party to attend in
deposition taking or failed to served answers to written
interrogatories under Rule 25 (Sec. 5, Rule).
1. If defendant refuses to follow modes of discovery, you can ask
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the defendant to be declared in default

2. If plaintiff refuses to follow modes of discovery, you can ask
dismissal of his complaint
In lieu of any of the foregoing orders or in addition thereto, an

order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a
physical or mental examination. (Sec. 3(d), Rule 29).
Other consequences of refusal to answer question during

deposition, or order production or inspection of documents or
things under Rule 27 or refused to submit himself for
examination under Rule 28
Section 4. Expenses on Refusal to Admit. — If

a party after being served with a request
under Rule 26 to admit the genuineness of any
document or the truth of any matter of fact,
serves a sworn denial thereof and if the party
requesting the admissions thereafter proves
the genuineness of such document or the
truth of any such matter of fact, he or she may
apply to the court for an order requiring the
other party to pay him or her the reasonable
expenses incurred in making such proof,
including reasonable attorney's fees.
Unless the court finds that there were good
reasons for the denial or that admissions
sought were of no substantial importance,
such order shall be issued. (4a)
Section 5. Failure of Party to Attend or Serve

Answers. — If a party or an officer or
managing agent of a party wilfully fails to
appear before the officer who is to take his or
her deposition, after being served with a
proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after
proper service of such interrogatories, the
court on motion and notice, may strike out all
or any part of any pleading of that party, or
dismiss the action or proceeding or any part
thereof, or enter a judgment by default
against that party, and in its discretion, order
him or her to pay reasonable expenses
incurred by the other, including attorney's
fees. (5a)
Section 6. Expenses against the Republic of the

Philippines. — Expenses and attorney's fees
are not to be imposed upon the Republic of
the Philippines under this Rule. (6)
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Rule 30 months or ninety (90) calendar days, which shall include the date of
the judicial dispute resolution, if necessary;
Trial
• The defendant shall present evidence within a period of three (3)
Section 1. Schedule of trial. — The parties shall months or ninety (90) calendar days;
strictly observe the scheduled hearings as • The period for the presentation of evidence on the third (fourth,
agreed upon and set forth in the pre-trial etc.) – party claim, counterclaim or cross-claim shall be determined
order. by the court, the total of which shall in no case exceed ninety (90)
(a) The schedule of the trial dates, for both calendar days; and
plaintiff and defendant, shall be continuous • If deemed necessary, the court shall set the presentation of the
and within the following periods: parties’ respective rebuttal evidence, which shall be completed
within a period of thirty (30) calendar days.
i. The initial presentation of plaintiff’s • The trial dates may be shortened depending on the number of
evidence shall be set not later than thirty (30) witnesses to be presented, provided that the presentation of
calendar days after the termination of the pre- evidence of all parties shall be terminated within a period of ten
trial conference. Plaintiff shall be allowed to (10) months or three hundred (300) calendar days. If there are no
present its evidence within a period of three third (fourth, etc.)-party claim, counterclaim or cross-claim, the
(3) months or ninety (90) calendar days, which presentation of evidence shall be terminated within a period of six
shall include the date of the judicial dispute (6) months or one hundred eighty (180) calendar days.- 90 for
resolution, if necessary; plaintiff and 90 for defendant
ii. The initial presentation of defendant’s • The court shall decide and serve copies of its decision to the
evidence shall be set not later than thirty (30) parties within a period not exceeding ninety (90) calendar days
calendar days after the court’s ruling on from the submission of the case for resolution, with or without
plaintiff’s formal offer of evidence. The memoranda.
defendant shall be allowed to present its =ante dating is not allowed
evidence within a period of three (3) months
or ninety (90) calendar days; — A party may ask for postponement of trial.
—However, under the new Rules, the party who caused the
iii. The period for the presentation of evidence
postponement is warned that the presentation of its evidence must
on the third (fourth, etc.) – party claim,
still be terminated on the remaining dates previously agreed upon.
counterclaim or cross-claim shall be
determined by the court, the total of which
shall in no case exceed ninety (90) calendar
days; and
iv. If deemed necessary, the court shall set the
presentation of the parties’ respective
rebuttal evidence, which shall be completed
within a period of thirty (30) calendar days.
(b) The trial dates may be shortened
depending on the number of witnesses to be
presented, provided that the presentation of
evidence of all parties shall be terminated
within a period of ten (10) months or three
hundred (300) calendar days. If there are no
third (fourth, etc.)-party claim, counterclaim
or cross-claim, the presentation of evidence
Section 2. Adjournments and postponements. —
shall be terminated within a period of six (6)
A court may adjourn a trial from day to day, and
months or one hundred eighty (180) calendar
to any stated time, as the expeditious and
days.
convenient transaction of business may require,
(c) The court shall decide and serve copies of but shall have no power to adjourn a trial for a
its decision to the parties within a period not longer period than one month for each
exceeding ninety (90) calendar days from the adjournment, nor more than three months in all,
submission of the case for resolution, with or except when authorized in writing by the Court
without memoranda. (n) Administrator, Supreme Court.
The party who caused the postponement is
The new Rules adopts the continuous trial system in civil cases. warned that the presentation of its evidence
-CONTINOUS- i.e. one day examination rule must still be terminated on the remaining dates
• Under this system, the parties are enjoined to follow strictly previously agreed upon.
the schedule of trials agreed upon in the pre-trial order.
(2a)
• The initial presentation of plaintiff’s evidence shall be set not
A party may ask for postponement of trial.
later than thirty (30) calendar days after the termination of the
However, under the new Rules, the party who caused the
pre-trial conference.
postponement is warned that the presentation of its evidence must
still be terminated on the remaining dates previously agreed upon.
Period to present evidence:
• Plaintiff shall present evidence within a period of three (3)
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Section 3. Requisites of motion to postpone

trial for illness of party or counsel. — A motion
to postpone a trial on the ground of illness of
a party or counsel may be granted if it appears
upon affidavit or sworn certification that the
presence of such party or counsel at the trial is
indispensable and that the character of his or
her illness is such as to render his or her non-
attendance excusable. (4a)
Section 4. Hearing days and calendar call. —

Trial shall be held from Monday to Thursday,
and courts shall call the cases at exactly 8:30
a.m. and 2:00 p.m., pursuant to
Administrative Circular No. 3-99. Hearing on
motions shall be held on Fridays, pursuant to
Section 8, Rule 15.
All courts shall ensure the posting of their Section 6. Oral offer of exhibits. — The offer of
court calendars outside their courtrooms at evidence, the comment or objection thereto, and
least one (1) day before the scheduled the court ruling shall be made orally in
hearings, pursuant to OCA Circular No. 250- accordance with Sections 34 to 40 of Rule 132. (n)
2015. (n) The new Rules requires that offer of evidence should be done
Section 5. Order of trial. — Subject to the ORALLY
provisions of Section 2 of Rule 31, and unless
the court for special reasons otherwise
directs, the trial shall be limited to the issues Section 7. Agreed statement of facts – The
stated in the pre-trial order and shall proceed parties to any action may agree in writing, upon
as follows: the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon,
(a) The plaintiff shall adduce evidence in without the introduction of evidence.
support of his or her complaint;
If the parties agree only on some of the facts in
(b) The defendant shall then adduce evidence issue, the trial shall be held as to the disputed
in support of his or her defense, counterclaim, facts in such order as the court shall prescribe.
cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall
adduce evidence of his or her defense, Section 8. Suspension of actions. — The
counterclaim, cross-claim and fourth-party suspension of actions shall be governed by the
complaint; provisions of the Civil Code and other laws. (8a)
(d) The fourth-party, and so forth, if any, shall

adduce evidence of the material facts pleaded Section 9. Judge to receive evidence; delegation
by them; to clerk of court. — The judge of the court where
(e) The parties against whom any the case is pending shall personally receive the
counterclaim or cross-claim has been pleaded, evidence to be adduced by the parties. However,
shall adduce evidence in support of their in default or ex parte hearings, and in any case
defense, in the order to be prescribed by the where the parties agree in writing, the court may
court; delegate the reception of evidence to its clerk of
court who is a member of the bar. The clerk of
(f) The parties may then respectively adduce court shall have no power to rule on objections
rebutting evidence only, unless the court, for to any question or to the admission of exhibits,
good reasons and in the furtherance of justice, which objections shall be resolved by the court
permits them to adduce evidence upon their upon submission of his or her report and the
original case; and transcripts within ten (10) calendar days from
(g) Upon admission of the evidence, the case termination of the hearing. (9a)
shall be deemed submitted for decision,
unless the court directs the parties to argue or
to submit their respective memoranda or any
further pleadings.
If several defendants or third- party
defendants, and so forth, having separate
defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence. (5a)
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Rule 31 their causes of action.

Consolidation or severance
Q: When may actions be consolidated?
Section 1. Consolidation. — When actions A: One of the requisites is: when the actions involve a common
involving a common question of law or fact question of law or fact.
are pending before the court, it may order a
joint hearing or trial of any or all the matters In other words, there must be a connection somewhere between
in issue in the actions; it may order all the the rule on Consolidation of actions in Rule 31, with the rule on
actions consolidated; and it may make such Permissive Joinder of Parties in Rule 3.
orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay. (1) When we were in Rule 3, an EXAMPLE was given: Suppose 30
people were riding on a bus which met an accident and all the
Consolidation involves several actions having a common plaintiffs were injured. After the incident, the 30 of them decided
question of law or fact which may be jointly tried. to file claims for damages against the bus company. They hired
the same lawyer.
Severance contemplates a single action having a number of Q: Can the lawyer file 30 complaints for each plaintiffs?
claims, counterclaims, cross claims, 3rd party complaints or A: YES.
issues which may be separately tried.
Q: Can the lawyer file only one complaint naming as co-plaintiffs
General rule: Consolidation is discretionary upon the court. the 30 injured passengers?
Exceptions: Consolidation becomes a matter of duty when the A: YES, that is permissive joinder of parties which is encouraged to
cases are: expedite litigation, to avoid multiplicity of suits, to economize the
1) pending before the same judge; or procedure or avoid repetition of evidence. There are the
2) filed with different branches of the same RTC and one of justification for permissive joinder of parties in Rule 3 Section 6
such cases has not been partially tried. but they can only join one complaint if they have the same lawyer.
Purpose: To avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested dockets, Q: But suppose the 30 passengers were injured and after their
simplify the work of the trial court and save unnecessary costs discharge from the hospital the 30 of them hired separate
and expenses. lawyers.?
A: There can be no joinder of parties. You cannot join the parties
Q: When is consolidation of actions proper? in one complaint because each plaintiff is represented by a
A: Consolidation is proper: different lawyer.
1) when two or more actions involve the same or a common
question of law or fact; and In this case, there should be 30 complaints filed let’s say, in the
2) the said actions (at least 2) are pending before the same RTC of Davao City, and they are raffled to different branches or
court. (Section 1, Rule 31; PAL vs. Teodoro, 97 Phil. 461) judges. The defendant might feel that he would rather have the
3) if filed with different courts, an authorization from the 30 cases tried together. Defendant says, “This is difficult. Imagine
Supreme Court is necessary. 30 cases sa 30 salas? Iba-ibang courts. My witnesses would have
to testify 30 times because there are 30 separate complaints.”
First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME
OR A COMMON QUESTION OF LAW OR FACT Q: Can the 30 cases be joined together para isang judge na lang?
Did you notice that phrase – “two or more actions involve the A: YES. The lawyer for the bus company can file a motion under
same or a common question of law or fact”? That phrase Rule 31, Section 1 to consolidate the actions. Meaning, the 30
seemed to be familiar. ”Common question of law or fact,” cases should be raffled and assigned to only one judge, there
where did we meet that requirement before? That is in joinder being a common question of law or fact. This is to economize the
of causes of action – two or more causes of action can be joined procedure if the evidence will be presented only once. Thus, every
in one pleading if they involve a common question of fact or time when the case is called, the 30 cases would be tried together.
law. Rule 3, Section 6: Para ka na ring nag-permissive joinder of parties.
SEC. 6 Permissive joinder of parties – All persons in whom or
against whom any right to relief in The purpose of consolidation is to achieve the same effect of
respect to or arising out of the same transaction or series of permissive joinder of parties under Rule 3, Section 6. You end in
transactions is alleged to exist, whether jointly, severally, or in having only one case, kaya lang 30 complaints are to be tried
the alternative, may, except as otherwise provided in these together. That is why there is a connection between consolidation
rules, join as plaintiffs or be joined as defendants in one and permissive joinder of parties.
complaint, where any question of law or fact common to all Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE
such plaintiffs or to all such defendants may arise in the action; SAME COURT
but the court may make such orders as may be just to prevent Q: In the example above, suppose one passenger filed his case in
any plaintiff or defendant from being embarrassed or put to Davao City, another passenger filed his case in Tagum because he
expense in connection with any proceedings in which he may resides there, and another files his case in Mati, can there be
have no interest. consolidation of their cases?
A: NONE. You cannot consolidate because they are pending in
The phrase answers the questions: different courts in different provinces. The law says it must be in
Q: When may 2 or more parties be joined together in one the same court.
complaint, either as co-plaintiffs or co-defendants?
A: There must be a common question of fact or law involved in Take note that cases are consolidated because it will expedite
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Amilhamja, Adj.
their termination, thereby economizing on the procedure. In criminal cases, the opposite of consolidation is separate trial. In
Cases are consolidated not only when the cases are before the reality, there is actually no consolidation of criminal cases. There
trial court. There are many times when cases are consolidated is only joint trial of criminal cases.
or joined together even when they are already on appeal,
provided, there is a common question of law or fact. Under the rules on Criminal Procedure the accused may reserve
the right to file the civil action separately when the criminal action
If we look at the SCRA, sometimes the decision involves 2 or 3 is filed, the civil action is deemed instituted unless the offended
cases. The caption sometimes has 3 or more cases, but there’s party will make a reservation to file it separately. Or, when the
only 1 decision. And these cases are coming from different civil action was instituted ahead, the subsequent filing of the
parts of the country. Why are these cases joined before the SC? criminal case will mean there is no more civil action there. And
Because there is a common question of fact or law or legal Section 2 of Rule 111, suppose the offended party made a
issue. So, even in the SC, cases are consolidated and decided reservation to institute a civil action and a criminal case is filed, he
together for the first time. Ang tawag dyan is COMPANION cannot file the civil action – that’s the rule. He must wait for the
CASES because the same issues are being raised in the outcome of the criminal case. The criminal case enjoys priority.
petitions.
Q: What happens if na-una na-file yung civil action?
Three (3) ways of consolidating cases: A: According to Section 2, Rule 111 from the moment the criminal
1) by recasting the cases already instituted - reshaping of the case is filed, the trial of the civil case is suspended to wait for the
cases by amending the pleading and dismissing some cases and outcome of the criminal case.
retaining only one case. There must be joinder of causes of
action and of parties; Q: Is this prejudicial to the offended party? What is the remedy of
2) by consolidation proper or by consolidating the existing the offended party?
cases - It is a joint trial with joint decision, the cases retaining A: There is a way out according to Section 2, Rule 111. The first
their original docket numbers; and thing for him to do is to file a petition to consolidate the trial of
3) by test-case method - by hearing only the principal case and the criminal and civil case for them to be tried together and the
suspending the hearing on the other cases until judgment has evidence already presented in the civil case is deemed
been rendered in the principal case. The cases retain their automatically reproduced in the criminal case. This is what you
original docket numbers. call the consolidation of the civil and criminal action under Section
2, Rule 111:
Consolidation of cases on appeal and assigned to different
divisions of the SC and the CA is also authorized. “...Nevertheless, before judgment on the merits rendered in the
The consolidation of civil and criminal cases is allowed. This is civil action, the same may, upon motion of the offended party, be
now sanctioned under Section 2(a), R 111 of the Rules of consolidated with the criminal action in the court trying the
Criminal Procedure (Canos vs. Pealta, GR No. L-38352, Aug. 19, criminal action...” (Section 2, Rule 111)
1982)
Q: Is this consolidation mandatory?
CONSOLIDATION under RULE 31 vs. CONSOLIDATION OF A: NO. It is permissive. Actually, the offended party is the one to
CRIMINAL ACTIONS under RULE 119 initiate this because if not, then he has to wait for the criminal
Now, there is also a provision in the rules on Criminal case to be terminated before he can file the civil case.
Procedure on consolidation of criminal actions under Rule 119,
Section 14: Q: Can you move to consolidate in one court the criminal and the
SEC. 14. Consolidation of trials of related offenses. - Charges for civil case when actually the degree of proof required in one case
offenses founded on the same facts, or forming part of a series is different from the degree of proof required in another case?
of offenses of similar character may be tried jointly at the A: That was answered in the affirmative in the case of
court's discretion. (Rule 119)
Q: Distinguish Consolidation of civil actions from Consolidation CAÑOS vs. PERALTA – 115 SCRA 843
of criminal actions. FACTS: This case originated in Digos, Davao del Sur, involving the
late Dr. Rodolfo Caños, who owned the Caños Hospital there. The
A: The following are the distinctions: respondent here was former CFI Judge Elvino Peralta. There was
1) In civil cases, one or more causes of action may be embodied an incident which led to the filing of a criminal case by A against
in one complaint because when there is permissive joinder, B. A reserved the right to file a separate civil action under the rules
there is automatic consolidation also; whereas on criminal procedure. A filed a separate civil case, but arising out
In criminal cases, only one offense can be the subject of one of the same incident. Both of the cases were assigned to Judge
complaint or information. consolidation of criminal actions is Peralta.
exclusively for joint trial; When Judge Peralta noticed that the 2 actions arose out of the
Q: Can you file one complaint or information embodying two same incident – and the accused in the criminal case is also the
or more crimes? defendant in the civil case, and the offended party in the criminal
A: NO. You cannot. That is what you call duplicitous complaint case is the plaintiff in the civil case, he ordered the consolidation
or information. There is no such thing as joinder of crimes. of the 2 cases under Rule 31, Section 1, to be tried together.
Therefore, the so-called consolidation of criminal actions is not Dr. Caños objected to the consolidation because according to his
actually filing one information but it is only for the purpose of lawyer, consolidation of cases under Rule 31, Section 1 applies
joint trial. only when there are 2 or more civil cases to be considered.
ISSUE #1: Was the consolidation proper?
2) In civil cases, the opposite of consolidation is severance HELD: The order of consolidation is correct. Rule 31, Section 1
under Section 2; whereas allows the consolidation of a criminal and civil case because of the
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Amilhamja, Adj.
fact that there is a common question of fact or law between

them and that they are pending before the same court. As a
matter of fact, before the same judge.
ISSUE #2: How do you reconcile these cases because the degree
of proof in the criminal case is not the same in the civil case?
HELD: The consolidation was proper under Rule 31 because
there is a common question of fact and law. They can be
consolidated but for purposes of decision, the court will now
apply two (2) different criteria: Proof beyond reasonable doubt
in the criminal case and preponderance of evidence in the civil
case. So there is no incompatibility.
Section 2. Separate trials. — The court, in

furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or third-
party complaint, or of any separate issue or of
any number of claims, crossclaims,
counterclaims, third-party complaints or
issues. (2)
Section 2 is the exact opposite of Section 1. In Section 1, there

are 2 or more cases which shall be joined together for joint trial.
In section 2, there is one case with several claims, i.e.
counterclaims, cross-claims and third-party complaints. The
rule states that they should be tried together, one after the
other, and then one decision.
So for example, you ask the judge for a separate schedule for
your 3rd-party claim. Then there will be a separate schedule for
the 3rd–party complaint rather than following the order of trial
under Rule 30. Under the order of trial, I have to wait for my
turn to prove my 3rd-party claim. If we follow Rule 30 (order of
trial) before it reaches the 3rd-party complaint, matagal
masyado.
But under Section 2, the court may grant a separate trial for
your 3rd-party claim or permissive counterclaim especially
when there is no connection between my permissive
counterclaim with the main action.
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Rule 32 will certainly shorten the time and expedite the resolution of the
case.
Trial by commissioner
The judge can then attend to other cases while the parties are
presenting all their invoices and receipts before the
Trial by commissioner applies when there is something to be
accountant/commissioner.
tried which requires some technical expertise, like accounting,
which the court feels it does not possess, and it will be a waste
Example #2:
of time if everything will be tried in court. So, the court will
Prof. X and Magneto are owners of adjoining properties. Magneto
refer it to a commissioner, “You hear that and then you submit
put up a fence. Prof. X sued Magneto for forcible entry on the
a report. Submit you report, you finding and your
ground that Magneto encroached on Prof. X’s ground, and praying
recommendation.” And that person is known as a
for the recovery of, say, 200 meters. Magneto contends that he
commissioner.
built the fence on the boundary line.
The judge will look at the title of the land: “point degree 9, etc..”
Commissioner is a person to whom a case pending in court is
– only surveyor or a geodetic engineer understands that! In this
referred, for him to take testimony, hear the parties and report
case, the court may appoint a geodetic engineer, order the
thereon to the court, and upon whose report, if confirmed,
submission of the titles of the lands to him, he will go to the area,
judgment is rendered (2 Martin, p. 142)
sukat-sukatin niya, and he will draw a sketch and then based on
the sketch, he will determine whether or not there is an
Section 1. Reference by consent. — By written encroachment. The appointed surveyor or geodetic engineer is
consent of both parties, the court may order called a commissioner.
any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the This is what you call trial by commissioner. And take note that
parties or to be appointed by the court. As under Section 1, trial by commissioner is possible by mutual
used in these Rules, the word "commissioner" agreement of the parties. The parties must agree. Either you can
includes a referee, an auditor and an agree on who is the CPA, who is the engineer, or you can ask the
examiner. (1) court to appoint somebody
Reference to a commissioner may be had by the written Q: Suppose the parties cannot agree, or one party files a motion
consent of both parties. asking for the appointment of a commissioner. Is the court still
empowered to apply Rule 32?
General rule: Trial by commissioner depends largely upon the A: YES, under section 2:
discretion of the court; but the following are instances when
such appointment is mandatory: Section 2. Reference ordered on motion. —
1) Expropriation (R 67); When the parties do not consent, the court may,
2) Partition (R 69); upon the application of either or of its own
3) Settlement of Estate of a Deceased Person in case of motion, direct a reference to a commissioner in
contested claims; and the following cases:
4) Submission of accounting by executors or administrators.
(a) When the trial of an issue of fact requires the
examination of a long account on either side, in
Note: An irregularity in the appointment of a commissioner
which case the commissioner may be directed to
must be seasonably raised in the trial court where the defect
hear and report upon the whole issue or any
could still be remedied. It can be waived by consent of the
specific question involved therein;
partes or implied.
(b) When the taking of an account is necessary
This was mentioned when we were talking about pre-trial. This for the information of the court before
is one of the purpose of a pre-trial. That is Rule 18, Section 2 judgment, or for carrying a judgment or order
[f]: “(f) into effect;
The advisability of a preliminary reference of issues to a
(c) When a question of fact, other than upon the
commissioner; ” This provision is actually referring to Rule 32.
pleadings, arises upon motion or otherwise, in
any stage of a case, or for carrying a judgment or
Example #1:
order into effect. (2)
Prof. X and Magneto had continuous transactions. After a long
while, their records do not anymore reconcile. Prof. X filed a
Section 1 is reference by consent and Section 2 is reference
case against Magneto on the ground that Magneto has not yet
ordered on motion. Paragraphs (a), (b) and (c) are the good
paid an obligation which is already due. Based on Magneto’s
grounds for a motion to appoint a commissioner.
records, bayad na lahat. Wala na syang utang. This is a question
of accounting.
In (a), it requires an examination of a long account. The best
The court will have to determine whose records are correct and
example here is example #1 – accounting.
accurate – invoices, receipts, etc... must be presented, which
In (b) and (c), notice that a commissioner may be appointed for
might be hundreds or thousands in volume. This will consume
carrying a judgment or order into effect. Thus, a commissioner,
a lot of time of the court.
can be appointed not only to help the court render a decision, but
The fact that the case involves accounting and the judge is not
also help the court enforce a decision – even if tapos na ang case.
an accountant (it is different if the judge is a CPA/lawyer, hindi
Because sometimes, problems arise on how to implement a
mahirap), the judge then should appoint an accountant to
decision of the court.
assist him. That accountant is known as the commissioner. That
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Amilhamja, Adj.
Example: There was a case of boundary dispute. Prof. X built his Note: Requirement of hearing cannot be dispensed with as this is
house near the boundary of his property. According to his the essence of due process.
neighbor, Magneto, a portion of the house of Prof. X
encroached on his land. About 25 sq. m. lang. Prof. X lost. The So a commissioner is parang judge rin. In effect he is an assistant
court says to Prof. X: “You are directed to return the 25 sq. m. judge. Biro mo, he can issue subpoenas, swear witnesses, and
which you occupied.” The sheriff will go there to return the 25 unless otherwise provided in the order of reference, may rule
sq. m. Which part of the house will the sheriff demolish? The upon the admissibility of evidence, of course, subject to the final
sheriff returns to the court because he cannot understand and approval of the court.
he does not know how to implement the decision. So, the court
Section 4. Oath of commissioner. — Before
solves that by appointing a surveyor as a commissioner to find
entering upon his or her duties the commissioner
out where that 25 sq. m. will be taken from the portion of the
shall be sworn to a faithful and honest
house.
performance thereof. (4a)
Q: Give other examples of trial by commissioner. A: The
following: Section 5. Proceedings before commissioner. —
1.) Special Civil Action of Expropriation under Rule 67 – when Upon receipt of the order of reference unless
the court has to determine just compensation. Under Rule 67, otherwise provided therein, the commissioner
it is mandatory for the court to appoint a commissioner in order shall forthwith set a time and place for the first
to determine as to how much the value of the property; meeting of the parties or their counsel to be held
2.) Special Civil Action of Partition under Rule 69. When the within ten (10) calendar days after the date of
heirs cannot agree on how to partition a property under co- the order of reference and shall notify the parties
ownership, the court may appoint a commissioner to study and or their counsel. (5a)
submit its report.
So take note that trial by commissioner is allowed not only for
the purpose of the court rendering the judgment but also for Section 6. Failure of parties to appear before
the purpose of carrying a judgment or order into effect. commissioner. — If a party fails to appear at the
time and place appointed, the commissioner
Section 3. Order of reference; powers of the may proceed ex parte or, in his or her discretion,
commissioner. — When a reference is made, adjourn the proceedings to a future day, giving
the clerk shall forthwith furnish the notice to the absent party or his or her counsel of
commissioner with a copy of the order of the adjournment. (6a)
reference. The order may specify or limit the
powers of the commissioner, and may direct
him or her to report only upon particular Section 7. Refusal of witness. — The refusal of a
witness to obey a subpoena issued by the
issues, or to do or perform particular acts, or
to receive and report evidence only, and may commissioner or to give evidence before him or
her, shall be deemed a contempt of the court
fix the date for beginning and closing the
hearings and for the filing of his or her report. which appointed the commissioner. (7a)
Subject to the specifications and limitations
stated in the order, the commissioner has and
Section 8. Commissioner shall avoid delays. — It
shall exercise the power to regulate the
is the duty of the commissioner to proceed with
proceedings in every hearing before him or
all reasonable diligence. Either party, on notice
her and to do all acts and take all measures
to the parties and commissioner, may apply to
necessary or proper for the efficient
the court for an order requiring the
performance of his or her duties under the
commissioner to expedite the proceedings and
order. He or she may issue subpoenas and
to make his or her report. (8a)
subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of
reference, he or she may rule upon the Section 9. Report of commissioner. — Upon the
admissibility of evidence. The trial or hearing completion of the trial or hearing or proceeding
before him or her shall proceed in all respects before the commissioner, he or she shall file with
as it would if held before the court. (3a) the court his or her report in writing upon the
Requisites of the order of reference; matters submitted to him or her by the order of
1) it must state the purpose; reference. When his or her powers are not
2) it must be in writing; and specified or limited, he or she shall set forth his
3) it may specify or limit the power of the commissioner. or her findings of fact and conclusions of law in
his or her report. He or she shall attach thereto
Powers of Commissioner: all exhibits, affidavits, depositions, papers and
1) exercise power to regulate the proceedings before him; the transcript, if any, of the testimonial evidence
2) do all acts and take all measures necessary or proper for presented before him or her. (9a)
the efficient performance of his duties; Delegation to Clerk of Court and Trial by Commissioner
3) swear witnesses; 1) The Clerk of Court must be a lawyer while a commissioner need
4) issue subpoenas and subpoenas duces tecum; not be a lawyer;
5) unless otherwise provided in the order of reference, rule 2) The Clerk of Court cannot rule on objections or on the
upon the admissibility of evidence. admissibility of evidence while the commissioner can;
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Amilhamja, Adj.
3) Delegation to the clerk of court is made during trial while a

commissioner can be appointed even after the case has
Section 13. Compensation of commissioner. —
become final and executory.
The court shall allow the commissioner such
reasonable compensation as the circumstances
of the case warrant, to be taxed as costs against
Section 10. Notice to parties of the filing of
the defeated party, or apportioned, as justice
report. — Upon the filing of the report, the
requires. (13)
parties shall be notified by the clerk, and they
shall be allowed ten (10) calendar days within
which to signify grounds of objections to the
findings of the report, if they so desire.
Objections to the report based upon grounds
which were available to the parties during the
proceedings before the commissioner, other
than objections to the findings and
conclusions therein set forth, shall not be
considered by the court unless they were
made before the commissioner. (10a)
Section 11. Hearing upon report. — Upon the

expiration of the period of ten (10) calendar
days referred to in the preceding section, the
report shall be set for hearing, after which the
court shall issue an order adopting, modifying,
or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring
the parties to present further evidence before
the commissioner or the court. (11a)
When the commissioner files his report with the court, the
court will now schedule it for hearing. The parties will be
furnished copies and during the hearing, if you do not agree
with the report, you can present objections thereto or criticize
the report. You can defend or attack it. The court will then
determine whether to accept the report or not.
That’s why under Section 11, the court shall issue an order
adopting, modifying, rejecting the report, in whole or in part,
or recommitting (ibalik) it to the commissioner with
instruction, or requiring the parties to present further
evidence. The court is not bound 100% to swallow everything
in the report. But the court rarely rejects the report of the
commissioner, unless talagang there is no basis for it. Chances
are, when the report has support, talo ka na. Although it is not
conclusive.
Now take note that when the court approves a report, the
findings of the commissioner becomes the findings of the
court.
Q: So, can the findings of the commissioner on question of fact
be questioned by the parties?
A: YES, under Section 11.
Q: Is there an exception that the finding of the commissioner
on
factual issues become final and no longer be questioned? A:
YES, under Section 12:
Section 12. Stipulations as to findings. —

When the parties stipulate that a
commissioner's findings of fact shall be final,
only questions of law shall thereafter be
considered. (12)
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Rule 33 (Republic vs. Tuvera, 516 SCRA 113).

Demurrer to evidence
Effect of Denial of Demurrer
1. Defendant will present evidence.
Q: Define demurrer to evidence.
2. The denial of demurrer is not a final order; it is an
A: Demurrer to evidence is a motion to dismiss filed by the
interlocutory order (Katigbak vs. Sandiganbayan, 404 SCRA 558).
defendant after the plaintiff had rested his case, on the ground of
3. Therefore, the remedy is not to appeal the Order, but to
insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)
file Petition for Certiorari under Rule 65, if there is grave abuse of
discretion.
Nature: There is only a one-sided trial, i.e., it is only the plaintiff
who has presented evidence.
Effect of Grant of Demurrer
1. The case is dismissed.
Purpose: To discourage prolonged litigation.
2. If the order is reversed in the appellate court, the
defendant loses his right to present evidence.
Section 1. Demurrer to evidence. — After the 3. It is not correct for the appellate court to remand the case for
plaintiff has completed the presentation of his further proceedings. The correct procedure is for the appellate court
or her evidence, the defendant may move for to render judgment based on the pieces of evidence presented by
dismissal on the ground that upon the facts the plaintiff (Radiowealth Finance Corp. vs. Del Rosario, 335 SCRA
and the law the plaintiff has shown no right to 288).
relief. If his or her motion is denied he or she
shall have the right to present evidence. If the
motion is granted but on appeal the order of
dismissal is reversed he or she shall be
deemed to have waived the right to present
evidence.
Section 2. Action on demurrer to evidence. —

A demurrer to evidence shall be subject to the
provisions of Rule 15.
The order denying the demurrer to evidence
shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus before
judgment.
- Demurrer to evidence is treated as litigious motion. Thus, the

procedure in Rule 15 on litigious motion shall apply. Judgment and final order
Judgment
When is the proper time to file demurrer to evidence? It is the final ruling by the court of competent jurisdiction regarding
After the plaintiff has completed the presentation of his evidence, the rights or other matters submitted to it in an action or proceeding
the defendant may move for dismissal on the ground that upon (Macahilig vs. Heirs of Gracia M. Magalit, 344 SCRA 838, 848).
the facts and the law the plaintiff has shown no right to relief. A judgment is the court’s official and final consideration and
determination of the respective rights and obligations of the parties.
Do you need to file leave for motion of demurrer to evidence?
-NO. Not a criminal demurrer. Requisites of a Valid Judgment
1. Court must have jurisdiction over the case
What is the effect if the motion is denied? How about if the 2. Court must have jurisdiction over the parties and subject matter
motion is granted but reversed on appeal? 3. Parties must be given an opportunity to adduce evidence in their
If his motion is denied, he shall have the right to present evidence. behalf.
If the motion is granted but on appeal the order of dismissal is 4. Evidence must have been considered.
reversed, he shall be deemed to have waived the right to present 5. In writing personally and directly prepared by the
evidence. judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him.
How are you going to classify the order of the court granting
demurrer to evidence? Q: How to resolve the conflict between the body and the dispositive
-Dismissal with prejudice because that is an adjudication on the portion
merits. It simply says insufficiency of evidence or that the plaintiff GR: The dispositive portion of the decision shall prevail.
has no cause of action BUT: If the inevitable conclusion from the body of the decision is so
-REMEDY? Appeal- in case demurrer to evidence is granted clear that there was a mere mistake in the dispositive portion, the
body of the decision shall prevail (So vs. Food Fest Land, Inc., 642
Grounds for Demurrer SCRA 592; People vs. Cilot, GR No. 208410, October 19, 2016).
◦ On the ground that upon the facts and the law the plaintiff has
shown no right to relief (Sec. 1, Rule 33). Ie. In dispositive portion, plaintiff is said to be indebted to defendant
◦ This is equivalent to insufficiency of evidence P1M but body provides 200k lang, which will prevail? Body!
◦ Thus, res judicata is not a proper ground for demurrer
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Amilhamja, Adj.
Q: What is judgment upon compromise? Final Order vs. Interlocutory Order

A: This is a judgment render by the court on the basis of a The first disposes of the subject matter in its entirety or terminates
compromise agreement entered between the parties to the a particular proceeding or action, leaving nothing more to be done
action (Diamond Builder’s Conglomeration vs. Country Bankers except to enforce by execution what the court has determined, but
Corp., 540 SCRA 194) Once approved by the court, a judicial the latter does not completely dispose of the case but leaves
compromise is not appealable and it thereby becomes something else to be decided upon.
immediately executory (Domingo vs. CA, 255 SCRA 189).
An interlocutory order deals with preliminary matters and the trial
Q: What is the doctrine of the law of the case? on the merits is yet to be held and the judgment rendered. The test
A: Whatever is once irrevocably established as controlling legal to ascertain whether or not an order or a judgment is interlocutory
rule or decision between the same parties in the case continues or final is: does the order or judgment leave something to be done
to be the law of the case, whether correct on general principles in the trial court with respect to the merits of the case? If it does, the
or not, so long as the fact on which such decision was predicated order or judgment is interlocutory; otherwise, it is final.‘ (Spouses
continue to be the facts before the court (RCPI vs. CA, 488 SCRA Teves vs. Integrated Credit & Corporate Services, GR No. 216714,
306; Mercury Group of Companies vs. HDMF, 541 SCRA 211; Yap April 4, 2018)
vs. Siao, GR No. 212493, June 1, 2016)
i.e. defendant filed a motion to dismiss on the ground that there Remedy in Interlocutory Order
is prescription. Now motion is denied, motion for reconsideration The proper remedy to question an improvident interlocutory order
is also denied. Defendant filed in CA a motion for certiorari. CA is a petition for certiorari under Rule 65 on ground of GAOJ, not rule
decision became final and executory. Assuming binaba ulit ang 45.
isang point ng case is prescription, now can the appellate court A petition for review under Rule 45 is the proper mode of redress to
rule on prescription? NO because it is already the law of the case. question only final judgments (Silverio, Jr., vs. Filipino Business
Consultants, 466 SCRA 584, 594).
Q: What is the doctrine of immutability of judgment?
A: Under the doctrine of immutability of judgments, a judgment
that has attained finality can no longer be disturbed. Thus, issues
actually and directly resolved in the former suit cannot again be
raised in any future case between the same parties (Pinero vs.
NLRC, 427 SCRA 112, 117; Borlongan vs. Buenaventura, 483 SCRA
405). The doctrine prohibits any alteration, modification, or
correction of final and executory judgments as what remains to
be done is the purely ministerial enforcement or execution of the
judgment (Tabalno vs. Dingal, Sr., GR No. 191526, October 5,
2015).
As a general rule, therefore, final and executory judgments are

immutable and unalterable except under the three exceptions:
1. Clerical errors
2. Nunc pro tunc entries which cause no prejudice to any party
3. Void judgments (because will never attain finality even
appealed)
Q: What is judgment nunc pro tunc?

The office of a judgment nunc pro tunc is to record some act of
the court done at a former time which was not then carried into
the record, and the power of a court to make such entries is
restricted to placing upon the record evidence of judicial action
which has been actually taken. It may be used to make the record
speak the truth, but not to make it speak what it did not speak but
ought to have spoken (Briones-Vasquez vs. CA, 450 SCRA 482,
491-492).
Ie. Plaintiff presented matters A-Z but it seems na A to M lang
nasa judgement
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Rule 34 1, 2017. On March 1, 2017, A failed to pay his obligation. B sent a

Demand Letter to A. Despite receipt of the same, A did not pay. B
Judgment on the pleadings
filed a complaint for sum of money against A. B attached to his
Section 1. Judgment on the pleadings. — complaint, the Promissory Note executed by A, the demand letter,
Where an answer fails to tender an issue, or and a letter from A purportedly acknowledging his indebtedness to
otherwise admits the material allegations of B. A filed an answer denying the material allegation in B’s Complaint
the adverse party's pleading, the court may; in a general manner. If you are B’s counsel, what will you do to
on motion of that party, direct judgment on protect the interest of your client, B?
such pleading. However, in actions for
declaration of nullity or annulment of A: I will file a motion for judgment on the pleadings. By not
marriage or for legal separation, the material specifically denying the material allegation in the complaint, A
facts alleged in the complaint shall always be impliedly admitted the allegation in the Complaint.
proved. (1a, R19) Material averment in the complaint, other than those as to
the amount of unliquidated damages, shall be deemed admitted
When is judgment on pleadings available? when not specifically denied (Sec. 11, Rule 8).
1. Where an answer fails to tender an issue,
2. otherwise admits the material allegations of the adverse party's CASE: Comglasco Corp. vs. Santos Car Check Center, GR No. 202989,
pleading March 25, 2015
Petitioner entered into 5 year lease contract with respondent.
Q: When do we say that an answer fails to tender an issue? Petitioner, after one year, pre-terminated the contract. Respondent
A: If it does not comply with the requirements of specific denial filed answer interposes the defense of 1.) rebus sic stantibus under
under Sections 8 and 10 of Rule 8. Article 1267 of the civil code invoking the Asian Financial crisis; 2)
legal impossibility of performance under Article 1266. Because of
SECTION 8. How to Contest Such Documents. — When an action these defenses, the respondent filed a motion for judgment on the
or defense is founded upon a written instrument, copied in or pleadings. Should the motion be granted?
attached to the corresponding pleading as provided in the A: YES. As there was no issue of fact, the Court should grant the
preceding section, the genuineness and due execution of the motion. By interposing such defenses, the defendant admitted the
instrument shall be deemed admitted unless the adverse party, material allegation in the complaint. Hence, judgment on the
under oath, specifically denies them, and sets forth what he pleading may be availed.
claims to be the facts; but the requirement of an oath does not
apply when the adverse party does not appear to be a party to
Section 2. Action on motion for judgment on the
the instrument or when compliance with an order for an
pleadings. — The court may motu propio or on
inspection of the original instrument is refused.
motion render judgment on the pleadings if it
apparent that the answer fails to tender an issue,
SECTION 10. Specific Denial. — A defendant must specify each
or otherwise admits the material allegations of
material allegation of fact the truth of which he does not admit
the adverse party’s pleadings. Otherwise, the
and, whenever practicable, shall set forth the substance of the
motion shall be subject to the provisions of Rule
matters upon which he relies to support his denial. Where a
15 of these Rules.
defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny only Any action of the court on a motion for judgment
the remainder. Where a defendant is without knowledge or on the pleadings shall not be subject of an appeal
information sufficient to form a belief as to the truth of a material or petition for certiorari, prohibition or
averment made in the complaint, he shall so state, and this shall mandamus (n)
have the effect of a denial.
-The new Rules allows the court to motu propio render judgment on
Manner of denying allegation
the pleadings if it apparent that the answer fails to tender an issue,
1. By specifically denying the allegation and setting forth the
or otherwise admits the material allegations of the adverse party’s
substance upon which one relies his denial.
pleadings.
2. By specifically denying some part of the allegation and denying
- If it is by motion from the party, then the procedure in Rule 15 shall
the rest.
apply.
3. By specifically denying the allegation for lack of knowledge
sufficient to form a belief as to the truth or falsity of the
Can you file a MR on the courts action on motion for judgment on
allegation.
the pleading?
NO! because resolution is not subject to shall not be subject of an
Effect of Defective Denial appeal or petition for certiorari, prohibition or mandamus
SECTION 11. Allegations No Specifically Denied Deemed
Admitted. What about the summary judgment itself?
-Material averment in the complaint, other than those as to the YES! Can be subject to appeal because it is a final order about the
amount of unliquidated damages, shall be deemed admitted merits of the case
when not specifically denied. Allegations of usury in a complaint
to recover usurious interest are deemed admitted if not denied
under oath.
Q: A is indebted to B in the amount of Php 500,000.00 covered by

a Promissory Note (PN). The PN is due and demandable on March
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Rule 35 Section 2. Summary judgment for defending

party. — A party against whom a claim,
Summary judgments
counterclaim, or cross-claim is asserted or a
Section 1. Summary judgment for claimant. — declaratory relief is sought may, at any time,
A party seeking to recover upon a claim, move with supporting affidavits, depositions or
counterclaim, or cross-claim or to obtain a admissions for a summary judgment in his or her
declaratory relief may, at any time after the favor as to all or any part thereof.
pleading in answer thereto has been served,
move with supporting affidavits, depositions Who can file:
or admissions for a summary judgment in his 1) Plaintiff - may file the motion after the answer has been served,
or her favor upon all or any part thereof. and therefore, must wait until the issues have been joined.
2) Defendant - he can move for summary judgment at any time.
When may a motion for summary judgment be availed of? Test: Whether or not the pleadings, affidavits and exhibits in support
-It may be availed when a responsive pleading has been filed, of the motion are sufficient to oversome the opposing papers and to
however, the same did not establish a genuine issue. justify the finding that, as a matter of law, there is no defense to the
-What triggers a summary judgment is the absence of genuine action or claim is clearly meritorious (Estrada vs. Consolacion, et al.,
issue of fact GR No. L-40948 June 29, 1976).
Normally, the party who avails of summary judgment is the plaintiff.
Issues are joined But this remedy is not limited to the plaintiff. The defendant can also
Issues are joined because the responsive pleading is filed. file a motion for Summary Judgment against the plaintiff because the
However, the allegations in the responsive pleading do not cause of action is sham. SO, if the remedy of Summary Judgment is
establish a real and genuine factual issue, because, for one, the available to the plaintiff, it can also be availed by the defendant.
issue tendered is sham, fictitious, and patently unsubstantial. How?
EXAMPLE: You file a complaint against me. Of course, your complaint
Q: A is indebted to B in the amount of Php 500,000.00 covered by puts up a cause of action, but I know very well that your cause of
a Promissory Note (PN). The PN is due and demandable on March action is false, although it’s very rare, usually it is the defendant who
1, 2017. On March 1, 2017, A failed to pay his obligation. B sent a is delaying the case. Well, I could always file an answer and there
Demand Letter to A. Despite receipt of the same, A did not pay. B would be pre-trial but sabi ko, “Matagal pa iyon!” So under Section
filed a complaint for sum of money against A. In B attached to his 2, instead of filing an answer, I can file a motion for Summary
complaint, the Promissory Note executed by A, and the demand Judgment and I will attach to my motion affidavits to show that the
letter. A denied the allegations in B’s Complaint. A further alleged cause of action is not genuine. And if the plaintiff believes that his
in his answer that B already condoned his debt. However, said cause of action is genuine, he might as well oppose my motion with
allegation is totally false What procedural action will you advice B counter-affidavits. Now, if you will not, then the court will rule in my
to take to expedite the resolution of the case? favor, dismissing your complaint.
A: I will file a motion for summary judgment because there is no Section 3. Motion and proceedings thereon. —
genuine issue. The motion shall cite the supporting affidavits,
“A "genuine issue" is an issue of fact which requires the depositions or admissions, and the specific law
presentation of evidence as distinguished from a sham, fictitious, relied upon. The adverse party may file a
contrived or false claim. When the facts as pleaded appear comment and serve opposing affidavits,
uncontested or undisputed, then there is no real or genuine issue depositions, or admissions within a non-
or question as to the facts, and summary judgment is called for extendible period of five (5) calendar days from
(Yap vs. Siao, GR No. 212493, June 1, 2016). receipt of the motion. Unless the court orders
the conduct of a hearing, judgment sought shall
NOTE: The party who moves for summary judgment has the be rendered forthwith if the pleadings,
burden of demonstrating clearly the absence of any genuine issue supporting affidavits, depositions, and
of fact, or that the issue posed in the complaint is patently admissions on file, show that, except as to the
unsubstantial so as not to constitute a genuine issue for trial. Trial amount of damages, there is no genuine issue as
courts have limited authority to render summary judgments and to any material fact and that the moving party is
may do so only when there is clearly no genuine issue as to any entitled to a judgment as a matter of law.
material fact. When the facts as pleaded by the parties are
Any action of the court on a motion for summary
disputed or contested, proceedings for summary judgment
judgment shall not be subject of appeal or
cannot take the place of trial.
petition for certiorari, prohibition or mandamus.
The new Rules specifies that the motion for summary judgment must
Q: Who may file a motion for summary judgment?
be accompanied by supporting affidavits, depositions or admissions,
SECTION 1. Summary Judgment for Claimant. — A party seeking
and the specific law relied upon.
to recover upon a claim, counterclaim, or cross-claim or to obtain
• The adverse party may file a comment and serve opposing
a declaratory relief may, at any time after the pleading in answer
affidavits, depositions, or admissions within a non-extendible period
thereto has been served, move with supporting affidavits,
of five (5) calendar days from receipt of the motion.
depositions or admissions for a summary judgment in his favor
• Hearing is optional to the court
upon all or any part thereof.
-Any action of the court on a motion for summary judgment shall not
SECTION 2. Summary Judgment for Defending Party. — A party
be subject of appeal or petition for certiorari, prohibition or
against whom a claim, counterclaim, or cross-claim is asserted or
mandamus.
a declaratory relief is sought may, at any time, move with
supporting affidavits depositions or admissions for a summary
judgment in his favor as to all or any part thereof.
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to be tried; whereas
Judgment on the Pleadings is proper where there is no issue of fact
Section 4. Case not fully adjudicated on
at all to be tried;
motion. — If on motion under this Rule,
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)
judgment is not rendered upon the whole case
2) as to how the judgment rendered
or for all the reliefs sought and a trial is
Summary Judgment is rendered on the basis of facts appearing in the
necessary, the court may, by examining the
pleadings, affidavits, depositions and admissions on file, whereas
pleadings and the evidence before it and by
Judgment on the Pleadings is rendered on the basis only of the
interrogating counsel shall ascertain what
pleadings; (Nagrampa vs. Mulwaney, Etc., 97 Phil. 724)
material facts exist without substantial
3) as to who can ask for the judgment
controversy, including the extent to which the
Summary Judgment is a remedy available for both claimant and
amount of damages or other relief is not in
defendant; whereas
controversy, and directing such further
Judgment of Pleadings is available only on the claimant because the
proceedings in the action as are just. The facts
answer fails to tender an issue.
so ascertained shall be deemed established,
4) In Summary Judgment a 10-day notice is required while in
and the trial shall be conducted on the
Judgment of Pleadings the 3-day notice rule applies;
controverted facts accordingly.
5) A Summary Judgment may be interlocutory or on the merits while
Judgment of Pleadings is one the merits;
Section 4 authorizes rendition of partial summary judgment but
6) A Summary Judgment is available only in actions to recover a debt
such is interlocutory in nature and isfinal a final and appealable
or for a liquidated sum of money or for declaratory relief while the
judgment. (Guevarra vs. CA GR No. L-49017, August 30, 1983).
latter is available in any action except annulment of marriage or legal
Q: Is there such a thing as a motion for partial Summary
separation cases;
Judgment?
7) If filed by the plaintiff, it must be filed at any time after an answer
A: YES. Well, if you say Motion for Partial Summary Judgment,
is served; if filed by the defendant, it may be filed even before there
some issues are genuine, some are not. So the court can decide
is an answer while the judgment is filed after there is already an
immediately on the issues which are not genuine but with respect
answer filed.
to issues which are genuine, the law says, trial shall be conducted
on the controverted facts summarily under Rule 35 on the issues
which are not genuine.
Section 5. Form of affidavits and supporting

papers. — Supporting and opposing affidavits
shall be made on personal knowledge, shall
set forth such facts as would be admissible in
evidence, and shall show affirmatively that
the affiant is competent to testify to the
matters stated therein. Certified true copies of
all papers or parts thereof referred to in the
affidavit shall be attached thereto or served
therewith. (5a, R34)
Section 6. Affidavits in bad faith. — Should it

appear to its satisfaction at any time that any
of the affidavits presented pursuant to this
Rule are presented in bad faith, or solely for
the purpose of delay, the court shall forthwith
order the offending party or counsel to pay to
the other party the amount of the reasonable
expenses which the filing of the affidavits
caused him or her to incur including attorney's
fees, it may, after hearing further adjudge the
offending party or counsel guilty of contempt.
(6a, R34)
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE

PLEADINGS (Rule 34)
Their similarity is that, both of them are methods for promptly
disposing civil actions, wherein a civil case can be adjudicated
without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on
the Pleadings (Rule 34).
1) as to the ground
Summary Judgment is proper if there is no genuine issue of fact
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Amilhamja, Adj.
Section 5. Separate judgments. — When more

Post Judgement remedies than one claim for relief is presented in an action,
Classification: the court, at any stage, upon a determination of
1. Before the judgment becomes final and executory the issues material to a particular claim and all
a) Motion for new trial counterclaims arising out of the transaction or
b) Motion for reconsideration occurrence which is the subject matter of the
c) appeal claim, may render a separate judgment disposing
of such claim. The judgment shall terminate the
2. After the judgment became final action with respect to the claim so disposed of
a) petition for relief from judgment and the action shall proceed as to the remaining
b) annulment of judgment claims. In case a separate judgment is rendered
c) certiorari the court by order may stay its enforcement until
d) collateral attack the rendition of a subsequent judgment or
judgments and may prescribe such conditions as
may be necessary to secure the benefit thereof
Rule 36
to the party in whose favor the judgment is
Judgments, Final Orders and Entry Thereof rendered. (5a)
Section 1. Rendition of judgments and final Section 6. Judgment against entity without
orders. — A judgment or final order juridical personality. — When judgment is
determining the merits of the case shall be in rendered against two or more persons sued as an
writing personally and directly prepared by entity without juridical personality, the
the judge, stating clearly and distinctly the judgment shall set out their individual or proper
facts and the law on which it is based, signed names, if known. (6a)
by him, and filed with the clerk of the court.
(1a) There are three (3) important stages in a civil action. Q: What are
these three (3) stages?
A: The following:
Section 2. Entry of judgments and final orders. 1) First stage: Issue Formulation Stage
— If no appeal or motion for new trial or It is the stage in which we are trying to find out what are the issues
reconsideration is filed within the time we are quarreling about. This is done by filing a complaint, answer
provided in these Rules, the judgment or final to know the defenses, counterclaim, answer to counterclaim, third
order shall forthwith be entered by the clerk party complaint. This is the stage of formulation of issues.
in the book of entries of judgments. The date After the last pleading is filed, we go to pre-trial where we will
of finality of the judgment or final order shall discuss the simplification of issues, advisability of amending the
be deemed to be the date of its entry. The pleadings, etc. Therefore, during pre-trial we are still formulating
record shall contain the dispositive part of the issues to be tackled. When the pre-trial is terminated and there is no
judgment or final order and shall be signed by settlement, we proceed to stage 2:
the clerk, within a certificate that such 2) Second stage: Stage of Proof (Rule 30 on Trial)
judgment or final order has become final and We are now on trial where the parties will now offer their evidence.
executory. (2a, 10, R51) It is called the stage of proof. Plaintiff presents evidence to prove his
claim. Defendant presents evidence to prove his defense. Parties
present rebutting evidence. So this is the stage where the parties will
Section 3. Judgment for or against one or more prove their respective contentions.
of several parties. — Judgment may be given After the case has been tried and everything has been argued under
for or against one or more of several plaintiffs Rule 30, the last stage is....
and for or against one or more of several 3) Third stage: Judgment Stage (Rule 36)
defendants. When justice so demands, the This is the stage where the court will now decide and
court may require the parties on each side to render judgment.
file adversary pleadings as between
themselves and determine their ultimate Q: Define Judgment.
rights and obligations. (3) A: Judgment is the final consideration and determination by a court
of the rights of the parties as those rights presently exists, upon
matters submitted to it in an action or proceeding. (Gotamco vs.
Section 4. Several judgments. — In an action
Chan Seng, 46 Phil. 542)
against several defendants, the court may,
A judgment is the final ruling by the court of competent jurisdiction
when a several judgment is proper, render
regarding the rights or other matters submitted to it in an action or
judgment against one or more of them,
proceeding (Macahilig vs. Heirs of Gracia M. Magalit 344 SCRA 838).
leaving the action to proceed against the
others. (4)
Q: What are the requisites of a valid judgment? A: There are the
requisites for a valid judgment:
1) the court rendering judgment must have jurisdiction over the
subject matter;
2) the court rendering judgment must have jurisdiction over the
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Amilhamja, Adj.
person of the defendant, and in case the defendant is a non- must argue why the party won or lost.
resident, the court rendering judgment must have jurisdiction
over the res; Normally in the facts, either the facts presented by plaintiff are right
3) the court rendering judgment must have jurisdiction over the and the facts presented by the defendant are wrong or vice- versa.
issues, that is, the judgment shall decide only the issues raised by If you think the facts as presented by the plaintiff are correct or not,
the parties in their pleadings; you have to state why do you believe that it is correct or not, and
4) the court rendering judgment must be a validly constituted also with the evidence of the defendant. The same thing with legal
court and the judge thereof, a judge de jure or de facto; Thus, the questions because the plaintiff or the defendant relies on the
court has not been abolished; the judge has been appointed and provisions of the laws or decided cases.
has not retired nor separated from service. That is why there is a You have to state why the position of the defendant is wrong, why
rule even in criminal cases that if the judgment is promulgated is the law that he cited not applicable. You have to state your facts
after the judge has already retired, the judgment is void. There and conclusions of law.
must be another promulgation.
In the SCRA, the Supreme Court will discuss both sides, “According
EXAMPLE: Judge tries a case, prepares the decision and signs it. to the plaintiff like this...According to the defendant like this.....and
Before the decision is promulgated, the judge died or retired. In so forth.” Then the decision will start by saying, “While the petitioner
this case, any promulgation to be made cannot be valid. The next is correct...” or, “While the defendant is correct...”
judge must be the one to promulgate it – write the decision again It is called the discussion of the facts and the law on which the
and sign it. What is important is the judge who rendered. decision is based. It is a requirement in the Constitution, Article VIII,
Section 14:
Q: What are the FORMAL requisites of a valid judgment? A: There Sec. 14. No decision shall be rendered by any court without
are four (4) formal requisites: expressing therein clearly and distinctly the facts and the law on
1) The judgment shall be in writing; which it is based. xxx (Article. VIII, 1987 Constitution)
2) It shall be personally and directly prepared by the judge;
3) It shall state clearly and distinctly the facts and the law If a judge will render a decision like this: “This is a civil action to
on which it is based; and collect an unpaid loan. According to the plaintiff: He borrowed
4) It shall be signed by the judge and filed with the clerk of money for the sum of P80,000.00 payable on this date and despite
court. demands, he did not pay. According to the defendant in his answer:
the obligation is fully paid. ISSUE: Whether the loan has been paid or
First formal requisite: THE JUDGMENT SHALL BE IN WRITING not yet paid. Plaintiff, to prove his cause of action presented the
There is no such thing as an oral judgment following witnesses and evidence. On the other hand, the
BAR QUESTION: After the parties presented their evidence, the defendant, to prove his defense presented the following evidence.
judge asked the lawyers, “Are you going to argue?” The parties WHEREFORE, the court renders judgment dismissing the complaint.”
said, “No more, Your honor. We are waiving our right to argue.” Such decision has no discussion on the findings of facts and the law.
So the judge dictated the decision to the clerk of court. The There is no basis of the dismissal of the complaint. MY GOLLY! What
judgment was against the defendant. The defendant appealed kind of decision is that? There is no discussion on why is the evidence
next day. Do you count the period of appeal from that date when of the plaintiff believable and why is the position of the defendant
he heard the decision? like that. So there is no discussion of the facts and the law on which
ANSWER: NO. You still have to wait for the written decision. it is based. That is a decision which violates the Constitution and Rule
Presumably, what is dictated by the judge will be transcribed. 36.
From the time you receive it is the reckoning period for appeal,
notwithstanding the hearing of such decision in open court. That Q: How do you distinguish a judgment from a decision?
is not yet the formal decision because under the law, there is no A: Actually, the decision is the entire written effort from the first
such thing as oral decision. The judgment must be in writing. sentence, “This is an action for a sum of money” until the end. It
Officially the decision is known to you on the date you received contains everything from the findings of facts, discussion of
the written judgment. Not the date when he dictated it in your evidence.
presence. There are judges before who could do that. Even now
those judges in Manila who became justices today do practice The judgment is usually the last paragraph – ‘yung “WHEREFORE” –
such type of judgment. At present, judges no longer possess such the dispositive portion or the decretal portion. Sometimes it is called
skill. They are given 90 days to decide the issue and yet at times, the fallo of the case.
they could not do so within the period mandated by law. How The fallo is the “WHEREFORE...”part while the discussions, findings
much more on the spot decision? of facts, conclusion of law to justify the fallo is called the ratio
decidendi – the reasoning. (Contreras vs. Felix, 78 Phil. 570)
Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY
PREPARED BY THE JUDGE Q: In case of conflict between judgment and decision, which shall
It is presumed that the judgment will be made by the judge prevail?
himself. Although sometimes it happens otherwise. The judge A: The judgment shall prevail in case of such conflict, for it is an
should not delegate the writing to other people. There must be elementary rule of procedure that the resolution of the court in a
no ghost writer. given issue, as embodied in the dispositive part of the decision, is the
controlling factor that determines and settles the rights of the
Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY parties and the issues presented therein. (Manalang vs. Rickards, 55
THE FACTS AND THE LAW ON WHICH IT IS BASED O.G. 5780, July 27, 1959)
The most important – the decision should state clearly and ASIAN CENTER vs. NLRC - 297 SCRA 727 [Oct 12, 1998]
distinctly, the facts and the law on which it is based. Meaning,
there must be a justification for the dispositive portion. The judge FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating sa
175
Amilhamja, Adj.
WHEREFOR (judgment), A’s action is dismissed! And there was no A: It is NOT valid. In truth, such judgment contains no disposition at
statement in favor of B. A appeals. B contended that the judgment all and is a mere anticipated statement of what the court shall do in
prevails. Is B correct? the future when a particular event should happen. For this reason,
HELD: “The general rule is that where there is a conflict between as a general rule, judgments of such kind, conditioned upon a
the dispositive portion or the fallo and the body of the decision, contingency, are held to be NULL and VOID. (Cu Unjieng y Hijos vs.
the fallo controls. This rule rests on the theory that the fallo is the Mabalacat Sugar Co., 70 Phil. 380)
final order while the opinion in the body is merely a statement
ordering nothing. However, where the inevitable conclusion from Q: What is an INCOMPLETE judgment? What is its effect?
the body of the decision is so clear as to show that there was a A: An incomplete judgment is one which leaves certain matters to
mistake in the dispositive portion, the body of the decision will be settled in a subsequent proceeding. (Ignacio vs. Hilario, 76 Phil.
prevail.” 605) There is a decision but there are still other matters to be
incorporated later in such decision. Parang interlocutory judgment.
TYPES OF JUDGMENTS:
a) Sin Perjuicio judgment Q: (Bar Question) What is a judgment NUNC PRO TUNC and what
b) Conditional judgment is
c) Incomplete judgement its function?
d) Nunc pro tunc judgment A: A judgment nunc pro tunc literally means a ’judgment now for
e) Judgment upon a compromise or Judgment upon an amicable then.’ Its function is to record some act of the court done at a former
settlement time which was then carried into the record. And the power to make
f) Judgment upon a confession such entries is restricted to placing upon the record evidence of
g) Judgment upon the merits judicial action which has actually been taken. It may be used to make
h) Clarificatory judgment the record speak the truth, but not to make it speak what it did not
i) Judgment by default (Sec. 3 R 9) speak but ought to have spoken. (Lichauco vs. Tan Pho, 51 Phil. 862)
j) Judgment on the Pleadings (R 34)
k) Summary Judgment (R 35) Example: When a judge renders a decision, he must base his findings
l) Several judgment (Sec. 4 R 36) on what happened on the trial or on the evidence presented.
m) Separate judgment (Sec. 5 R 36) Normally, the judge cites facts as bases for his findings. Suppose, the
n) Special Judgment (Sec. 11 R. 39) judge, in his hurry, made some findings but forgot to incorporate all
o) Judgment for specificactor (Sec. 10 R 39) those other important matters which can support his findings. Na-
p) Judgment on Demurrer to Evidence (R 33) overlook ba! He rendered his decision which was lacking in
q) Final Judgment something – inadvertently omitted. The judge may now amend his
r) Amended Judgment and Supplemental Judgment judgment by including the matters missed – such matters that have
been admitted on record. Then, the judge now has an improved
Q: What is an SIN PERJUICIO judgment? decision – the judgment now is NUNC PRO TUNC. What are to be
A: A sin perjuicio is one which contains only the dispositive added are things which really happened. The judge has no power to
portion of the decision and reserves the making of findings of fact include something which did not actually happen. That would be
and conclusions of law in a subsequent judgment. (Dir. of Lands irregular. How could you quote something which never transpired
vs. Sanz, 45 Phil. 117) So, there is a “WHEREFORE” without a ratio during the trial.
decidendi. It does not state how the court arrived at a certain
decision. So it is an amended judgment where certain matters which are
contained in the records and transpired in court were not
Q: Is a SIN PERJUICIO judgment valid? incorporated. So when you made the decision, parang kulang. So in
A: A sin perjuicio judgment is a VOID judgment for it violates the order to make it clearer, we will incorporate those matters which
constitutional provision that “no decision shall be rendered by should have been incorporated in the amended decision. That is
any court of record without expressing therein clearly and known as judgment nunc pro tunc. But you can only place there
distinctly the facts and the law on which it is based” (Sec. 14, Art. matters which transpired, not matters which did not transpire.
VIIII), and the provision of the Rules of Court that the judgment
shall state “clearly and distinctly the facts and the law on which it Q: In what cases is a judgment nunc pro tunc NOT proper?
is based. (Rule 36, Section 1) A: A judgment nunc pro tunc is not proper in the following
instances:
Q: What is a CONDITIONAL judgment? 1) It cannot remedy errors or omission in an imperfect or improper
A: A conditional judgment is one which is subject to the judgment. (Lichauco vs. Tan Pho, 51 Phil. 862)
performance of a condition precedent and is not final until the 2) It cannot change the judgment in any material respect.
condition is performed. (Jaucian vs. Querol, 38 Phil. 707) (Henderson vs. Tan, 87 Phil. 466) and
Is one wherein the effectivity of which depends upon the 3) It cannot correct judicial errors, however flagrant and glaring they
occurrence or non-occurrence of an event. may be. (Henderson vs. Tan, 87 Phil. 466)
EXAMPLE: A sued B. Then the court said: “The A is correct because
so and so.... However, there is another case now pending before Q: What is a JUDGMENT UPON A COMPROMISE?
the SC where the same issue is being raised. In the meantime, A A: A judgment upon a compromise is a judgment rendered with the
is correct. But in the event that SC decision comes out and is not consent of the parties for the purpose of effecting a compromise or
favorable to A, then this decision should also be automatically settlement of an action. (31 Am. Jur. 105-108)
changed in favor of B.” So, this is a conditional judgment. Is it a
valid judgment? It is one rendered by the court on the basis of a compromise
agreement entered into between the parties.
Q: Is a conditional judgment valid?
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Amilhamja, Adj.
This is the type of judgment which the law encourages because it whatever the answers before are not anymore true now. So what is
is a judgment with the consent of the parties for the purpose of the REMEDY now?
effecting a compromise or settlement. Usually mga collection
cases ito – tawaran – like i-condone ang interests, or half of the It would seem that the correct remedy based on the new rules in
amount na lang, etc. The court will render judgment copying word relation to some new cases, among which was the case of:
for word what the parties say. So the compromise agreement DOMINGO vs. CA– 255 SCRA 189 [1996]
becomes the judgment and for a as long as the agreement is not HELD: The correct remedy is for the party to file an action for
contrary to law, the court will approve it. annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule 47)
Q: In a compromise judgment, is the court required to make “A compromise may however be disturbed and set aside for vices of
findings of fact and conclusions of law? Why? consent or forgery. Hence, where an aggrieved party alleges
A: In a compromise judgment, the court is not required to make mistake, fraud, violence, intimidation, undue influence, or falsity in
findings of fact and conclusions of law. In contemplation of law, the execution of the compromise embodied in a judgment, an action
the court is deemed to have adopted the statement of facts and to annul it should be brought before the Court of Appeals, in
conclusions of law made and resolved by the parties themselves accordance with Section 9(2) of Batas Pambansa Bilang 129, which
in their compromise agreement; and their consent has made it gives that court (CA) exclusive original jurisdiction over actions for
both unnecessary and improper for the court to make a annulment of judgments of regional trial courts.”
preliminary adjudication of the matters thereunder covered. The parties may submit compromise agreement at any stage of the
(Palarca vs. Anzon, L-14780, Nov. 29, 1960) case, even if judgment has already become final and executory, and
even without approval of the court.
It is covered by Articles 2028 to 2046 of the New Civil Code Advantage of Approval of the court
Q: How do you define a compromise? The court could render a judgment based upon a compromise and
A: Under Article 2028 of the New Civil Code: in case of breach of any of the conditions, the party may ask the
Art. 2028. A compromise is a contract whereby the parties, by court for execution of judgment under R 39.
making reciprocal concessions, avoid a litigation or put an end to
one already commenced. (Civil Code) Q: What is a judgment upon a confession?
So the essence of compromise is reciprocal concessions – give and A: A judgment upon a confession is a one entered against a person
take. It is a mutual concession to avoid litigation or, if there is upon his admission or confession of liability without the formality,
already, that which will put an end. There are other definitions time and expense involved in an ordinary proceeding. (Natividad vs.
given by the SC although the essence or substance is the same. In Natividad, 51 Phil. 613)
the case of It is one rendered by the court when a party expressly agrees to the
other party's claim or acknowledges the validity of the claim against
Q: What are the legal effects of a judgment based upon a him.
compromise agreement?
A: A judgment upon a compromise agreement produces the Two kinds of judgment by Confession:
following legal effects: 1) Judgment by Cognovit Actionem
1) The compromise judgment is not appealable and it is A judgment upon a confession is also known as “cognovit”
immediately executory. (Reyes vs. Ugarte, 75 Phil. 505; Serrano judgment. The defendant after service instead of entering a plea
vs. Miave, L-14687, March 31, 1965) acknowledges and confesses that the plaintiff's cause of action is just
2) It cannot be annulled unless it is vitiated with error, deceit, and rightful.
violence or forgery of documents. (Morales vs. Fontanos, 64 Phil. EXAMPLE: You file a case against me. Without filing an
19; Article 2038, Civil Code) answer, I simply appeared in court and tell the court that I am not
3) It constitutes res adjudicata. (Art. 2037, Civil Code; Sabino vs. contesting the claim. I am admitting the complaint to be true and I
Cuba, L-18328, Dec. 17, 1966) Meaning, the same subject matter am willing to have judgment rendered against me. Or, I can also file
or cause of action can no longer be reopened in the future in my answer kunwari lang ba, and then in court I will admit my liability.
another litigation. That would be the basis of the judgment upon a confession.
Q: Suppose you enter into a compromise agreement and there is As distinguished from judgment on the pleadings (Rule 34), in
a judgment. You want to escape from the compromise judgment judgment on the pleadings you have to go through the process of
on the ground that your consent was vitiated by mistake, error, filing an answer but actually your answer puts up no defense. In
deceit, violence. How do you question it? What is your remedy? judgment upon a confession, I may not even file an answer. Hindi
A: There are so many conflicting answers here. Some say you file talaga ako maglaban. Upon receiving the complaint, I just say that I
a motion to set aside the compromise judgment because your am admitting liability. So there is no need of a default order. In
consent was vitiated. And if the motion is denied, you appeal from American Law, they call it nullo contendere, meaning no contest. Sa
the order denying your motion to set aside. But definitely, you criminal case pa, I am pleading “guilty.”
cannot appeal from the compromise judgment because it is not
appealable. You appeal from the order denying your motion to Judgment upon a confession, Judgment upon the pleadings, Default
set aside the compromise judgment. judgment – Magkahawig sila. Only they vary a little bit. In default
However, under the new rules, you cannot anymore appeal an judgment, the defendant failed to file an answer. So, he is declared
order denying a motion to set aside a judgment by consent, in default. In judgment upon the pleadings, defendant filed an
confession or compromise on the ground of fraud, mistake, or answer but the answer contains no defense. In judgment upon a
duress or any other ground vitiating consent (Section 1, Rule 41) confession, he will not file an answer but will tell the court that he is
So an order denying a motion to set aside a judgment by admitting liability. So, lahat will end up on the same thing: There will
compromise on the ground of fraud, mistake, or duress or any be a judgment rendered against the defendant.
other ground vitiating consent is not appealable. Therefore,
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2) Judgment by confession relicta verification the clerk of court for filing, coupled with notice to the parties or their
After pleading and before trial, the defendant both counsel.
confessed the plaintiff's cause of action and withdrew or
abandoned his plea or other allegations, whereupon judgment is Memorandum decision is a decision of the appellate court which
entered against him without proceeding to trial. adopts the findings and conclusions of the trial court.
Now, during the commonwealth era, there were many American
lawyers who practiced law in the Philippines. Many judges were General rule: After judgment has become final and executory the
Americans, even Justices of the Supreme Court – many of them court cannot amend the same.
were Americans. American lawyers brought to the Philippines Exceptions:
types of agreements in American contracts. There was one 1) to make correctios of clerical error, not substantial amendments,
particular agreement known as as by an amendment nunc pro tunc;
“Warrant of Attorney to Confess Judgment.” That is a standard 2) to clarify an ambiguity which is borne out by and justifiable in the
clause in American contracts. context of the decision; or
EXAMPLE: I am a bank. You borrow money from me and you sign 3) in judgments for support, which can always be amended from
a promissory note which contains stipulations normally to the time to time.
advantage and in favor of the bank. They usually insert the
American clause “Warrant of Attorney to Confess Judgment” that Rule: The validity of a judgment or order of a court cannot be
in the event that the bank will sue you on this promissory note, collaterally attacked.
you are entering into a confession judgment immediately. Except:
Meaning, I am not going to defend myself and I am immediately 1) for lack of jurisdiction; or
confessing judgment to the court. And who will confess judgment 2) irregularity of its entry apparent from the face of the
to the court? The debtor will say “I hereby appoint the bank as my record.
representative to confess judgment to the court in my behalf.”
Parang Special Power of Attorney ba. The bank will go to the court
and say, “Under this paragraph, I represent the defendant-debtor
because he appointed me as his attorney-in-fact. And in behalf of
the defendant, I am confessing.”
Q: Distinguish a judgment upon a COMPROMISE from a

judgment upon a CONFESSION.
1) In a judgment upon a COMPROMISE, the liability of the
defendant is to be determined in accordance with the terms of
the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant confesses the
action and consents to the judgment that the court may render in
accordance with the compromise and the prayer therein (31 Am.
Jur. 108); and
2) In a judgment upon a COMPROMISE, there is give and take; the
parties haggle, bargain and agree on the terms of the judgment;
there is mutual or reciprocal concessions; whereas
A judgment upon a CONFESSION is unilateral. It comes from the
defendant who admits his liability and accepts that judgment be
rendered against him.
3) In a judgment upon a compromise, the provisions and terms
are settled and agreed upon by the parties to the action, and
which are entered in the record by the consent of the court while
a judgment by confession is an affirmative and voluntary act of
the defendant himself. The court exercises a certain amount of
supervision over the entry of judgment.
Judgment upon the merits

It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
Clarificatory judgment
It is rendered to clarify an ambiguous judgment or one difficult to
comply with.
Where the judgment is difficult to execute because of ambiguity
in its terms, the remedy is to file a motion for clarificatory
judgment and not to assail the judgment as void. (Riano p. 405)
Promulgation of judgment
This refers to the process by which a decision is published,
officially announced, made known to the public or delivered to
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Rule 37 ignorant of the suit. (Villanueva vs. Nite).

New Trial or Reconsiderations
—Stated in another way, extrinsic fraud exists when there is a
Section 1. Grounds of and period for filing fraudulent act committed by the prevailing party outside of the trial
motion for new trial or reconsideration. — of the case, whereby the defeated party was prevented from
Within the period for taking an appeal, the presenting fully his side of the case by deception practiced on him
aggrieved party may move the trial court to set by the prevailing party (Alba vs. CA 465 SCRA 495)
aside the judgment or final order and grant a The use of forged instruments, or perjured testimonies during trial
new trial for one or more of the following is not an extrinsic fraud. Such evidence does not preclude a party’s
causes materially affecting the substantial participation in the trial (Bobis vs. CA 348 SCRA 23; Strait Times vs.
rights of said party: CA GR 126673 August 28, 1998). Offering perjured testimony or
(a) Fraud, accident, mistake or excusable offering manufactured evidence is intrinsic and not extrinsic fraud.
negligence which ordinary prudence could not Intrinsic fraud is not sufficient to annul a judgment (Conde vs. IAC GR
have guarded against and by reason of which L-70443, Sept, 15, 1986).
such aggrieved party has probably been
impaired in his rights; or —INTRINSIC FRAUD is that fraud which was an issue in the litigation
(b) Newly discovered evidence, which he could such as perjury, false testimony, concealment of evidentiary facts,
not, with reasonable diligence, have discovered but did not prevent you from presenting your case. That is not a
and produced at the trial, and which if ground for annulment of judgment. So take note of that principle.
presented would probably alter the result.
Within the same period, the aggrieved party Example of Extrinsic Fraud
may also move for reconsideration upon the —When a party connived with the court personnel so that notices of
grounds that the damages awarded are trial dates were sent to the old address of the aggrieved party’s
excessive, that the evidence is insufficient to counsel although a notice of change of addressed was filed already.
justify the decision or final order, or that the —The aggrieved party’s lawyer betrays him and sells out his case to
decision or final order is contrary to law. (1a) the other side.
—The judge is bribed by the adverse party to render a decision in his
1. A) Motion for new trial favor.
Grounds (FAMEN):
-Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which 2. Accident
such aggrieved party has probably been impaired in his rights; or —Accident is similar to the concept of fortuitous event in civil law. It
-Newly discovered evidence, which he could not, with reasonable is something which ordinary prudence on the part of party or
diligence, have discovered, and produced at the trial, and which counsel could not have guarded.
if presented would probably alter the result. —It is something unforeseen, something unexpected or
unanticipated. When is accident a sufficient ground for new trial?
When to file? —EXAMPLE: A party failed to appear in court because he got sick at
—It is filed within a period for taking an appeal (Sec. 1, Rule 37). the last minute. Or, in the middle of the trial, the lawyer of the party
—Where appeal is by notice of appeal, within 15 days from notice becomes sick. With that, the complaint was dismissed or there was
of judgment or final order (Sec. 2, Rule 40; Sec. 3, Rule 41). a judgment against you. You can move for new trial on the ground
—Where record on appeal is required, within 30 days from notice of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil. 983)
of judgment or order (Sec. 2, Rule 40; Sec. 3, Rule 41). = those —EXAMPLE: The defendant was declared in default because he did
cases which are susceptible to multiple appeals! i.e. rules on not file an answer but actually he filed an answer through mail, but
special proceedings and cases on special civil action ie. Partition, somehow the post office did not deliver it to the court. That is an
expropriation, foreclosure of real estate mortgage accident. With that, I can move for new trial or lift the order of
default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)
1. Fraud —EXAMPLE: The trial was this morning. But I received only the
—The fraud referred to in Section 1, Rule 37 is extrinsic fraud, notice of trial on March 9, 1998 stating that the trial is on March 5.
that is, deception or trickery by which the aggrieved party was So the notice of hearing was received days after the scheduled date.
prevented from having his day in court or presenting his case That is an accident which is a ground for new trial. (Soloria vs. Dela
before the court. It should be distinguished from intrinsic fraud Cruz, L-20738, Jan. 31, 1966)
which involves the presentation of false or perjured testimony
but did not otherwise prevent the aggrieved party from 3. Mistake
presenting his case. —If a party, because of a pending compromise agreement believed
—Fraud is regarded as extrinsic or collateral in character where it in good faith that it was not necessary for him to answer, appear at
prevents a party from having a trial or from presenting his entire the trial and put up a defense, there is a mistake which would
case to the court, or where it operates upon matters pertaining constitute a sufficient ground for new trial (Salazar vs. Salazar, 8 Phil.
not to the judgment itself but to the manner in which it is 853).
procured. The overriding consideration when extrinsic fraud is -Mistake of fact but not mistake of law
alleged is that the fraudulent scheme of the prevailing litigant -why not mistake of law? Because of the rule that ignorance
prevented a party from having his day in court (Alaban vs. CA). of the law excuses no one from compliance therewith
This kind of fraud prevents the aggrieved party from having a trial
or presenting his case to the court, or is used to procure the Please take NOTE:
judgment without fair submission of the controversy, as when —An error or mistake committed by a counsel in the course of
there is a false promise of a compromise or when one is kept judicial proceedings is not a ground for new trial.
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Amilhamja, Adj.
—It has been repeatedly enunciated that "a client is bound by the —Newly discovered evidence requisites:
action of his counsel in the conduct of a case and cannot be heard 1. Evidence must be discovered after trial.
to complain that the result might have been different if he 2. Such evidence could not have been produced during trial even
proceeded differently. A client is bound by the mistakes of his with exercise of reasonable diligence
lawyer (Briones vs. People, GR No. 156000, June 5, 2009). 3. Evidence is material not merely collateral, cumulative,
The exception: corroborative or impeaching
—An exception to the principle that a client is bound by the 4. The evidence would have change the result of the case [Ybiernas
mistakes of his counsel is one wherein the negligence of the latter vs. Tanco-Gobaldon, June 1, 2011].
is so gross that the former was deprived of his day in court, as a —These standards, also known as the "Berry" rule, trace their origin
result of which he is deprived of property without due process of 1851 case of Berry vs. State of Georgia.
law (Amil vs. CA, GR No. 125271, October 7, 1999) —Newly discovered evidence need not be newly created evidence.
It may and does commonly refer to evidence already in existence
4. Excusable negligence prior or during trial but which could not have been secured and
—Gross negligence of counsel not a ground for new trial presented during the trial despite reasonable diligence on the part
Petitioner’s argument that his counsel’s negligence was so gross of the litigant. (Tumang vs. CA GR No. 82346-47, April 17, 1989).
that he was deprived of due process fails to impress. Gross
negligence is not one of the grounds for a motion for a new trial. Formalities of Motion for New Trial
We cannot declare his counsel’s negligence as gross as to liberate — A motion for the cause mentioned in paragraph (a) [FAME] of the
him from the effects of his failure to present countervailing preceding section shall be supported by affidavits of merits which
evidence. The Court does not consider as gross negligence the may be rebutted by affidavits.
counsel’s resort to dilatory schemes, such as (1) the filing of at —A motion for the cause mentioned in paragraph (b) [NEWLY
least three motions to extend the filing of petitioner’s answer; (2) DISCOVERED EVIDENCE] shall be supported by affidavits of the
his nonappearance during the scheduled pre-trials; and (3) the witnesses by whom such evidence is expected to be given, or by
failure to file petitioner’s pre-trial brief, even after the filing of duly authenticated documents which are proposed to be
several motions to extend the date of filing (Uy vs. First Metro). introduced in evidence.
—EXCUSABLE NEGLIGENCE – Obviously, inexcusable negligence is
not a ground for new trial. But sometimes, it is difficult to Effect of filing on period to appeal
determine whether the negligence is excusable or inexcusable. The filing of the Motion for New Trial interrupts the period to appeal.
That is also very difficult because there is negligence whether you
like it or not. Can you file a motion for reconsideration on the denial for your
—When is negligence excusable and when is it inexcusable? Our motion on new trial? NO! The order denying your motion for new
only guide here is decided cases because there are many cases trial is non-appealable.
where the SC said that, it is excusable so we will grant a new trial.
Or sometimes naman, wala, that is not excusable so no new trial. What is the remedy if the motion is denied?
So, we can go on the pattern and find out what type of negligence —SECTION 9. Remedy Against Order Denying a Motion for New Trial
warranted a new trial and what type does not warrant a new trial. or Reconsideration. — An order denying a motion for new trial or
— EXAMPLE #1: The answer has to be filed the following day. reconsideration is not appealable, the remedy being an appeal from
The lawyer told the secretary, “I’m leaving tonight. I’ll come back the judgment or final order.
one week later. You better file tomorrow the answer because
tomorrow is the deadline.” Then he left but the secretary failed Fresh Period or Neypes rule
to file it because she also got sick. Ayan. Nagkapatong-patong na — If the motion is denied, the movant has a “fresh period” of fifteen
ang malas. Excusable iyan. (15) days from receipt of the notice of the order denying or
dismissing the motion for reconsideration within which to file the
5. Newly discovered evidence notice of appeal.
—NDE is evidence which was discovered after trial, or cannot be — The “fresh period” rule applies not only in Rule 41 (RTC-CA), but
discovered during trial given the exercise of reasonable diligence, also in Rule 40 (MTC-RTC), Rule 42 (Petrev, RTC-CA), Rule 43 (Petrev,
and if admitted, such evidence would probably alter the result of QJA-CA), and Rule 45 (RTC, CA-SC).
the case. There is a fighting chance ba! So, you could not have — This was adopted to standardize the appeal period.
discovered the evidence even with exercise of due diligence. — Neypes vs. Court of Appeals, 469 SCRA 633
—This is also one of the grounds for new trial in criminal cases.
You lost a case maybe because you do not have enough evidence May motion for new trial be filed in the CA?
to prove your cause of action. Kulang ba! Kulang ka ng ebidensiya -YES.
kaya natalo ka. Then after you lost the case, you came across an - SECTION 1. Period for Filing; Ground. — At any time after the
important evidence, maybe a witness or a document and you appeal from the lower court has been perfected and before the
learned about it for the first time. Ang sayang ‘no? If I was able to Court of Appeals loses jurisdiction over the case, a party may file a
present this evidence baka panalo ako. motion for a new trial on the ground of newly discovered evidence
—EXAMPLE: You are a defendant being sued because of non- which could not have been discovered prior to the trial in the court
payment of an account. Ang depensa mo, bayad na. Pero saan ang below by the exercise of due diligence and which is of such a
resibo? “Basta binayaran ko siya, ok naman. Sabi nga niya wala na character as would probably change the result. The motion shall be
raw akong utang.” Now, so it’s your word against his word and accompanied by affidavits showing the facts constituting the
the court did not believe you. Then eto naman ang sabi ni X, grounds therefor and the newly discovered evidence (Rule 53).
“Natalo ka? Bayad naman yan ba.” Kung ganun, bakit alam mo?
X: “Nandoon man ako ba. I was there watching when you paid 1. B) Motion for Reconsideration
him.” Meaning, kung nagtestify ka (X) noon, baka daug ako -another remedy before judgment becomes final and executory
because my defense would have been corroborated by you. -Within the same period, the aggrieved party may also move for
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Amilhamja, Adj.
reconsideration upon the grounds that the damages awarded are period of appeal. (Section 2, Rule 37) therefore judgment will
excessive, that the evidence is insufficient to justify the decision become final and executory.
or final order, or that the decision or final order is contrary to law -only applies to motion for new trial but not motion for
(Sec. 1, Rule 37). reconsideration
Effect of filing on period to appeal What is the remedy if the motion is denied?
The filing of the Motion for New Trial interrupts the period to —SECTION 9. Remedy Against Order Denying a Motion for New Trial
appeal. or Reconsideration. — An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal from
When to file? the judgment or final order.
1. It is filed within a period for taking an appeal (Sec. 1, Rule -NOT FILE A MOTION FOR RECONSIDERATION ON THE
37). ORDER DENYING THE MOTION FOR RECONSIDERATION
2. Where appeal is by notice of appeal, within 15 days from -Also subject to a fresh period or neypes rule
notice of judgment or final order (Sec. 2, Rule 40; Sec. 3,
Rule 41). Where new trial/ Motion for reconsideration is not allowed
3. Where record on appeal is required, within 30 days from 1. Cases covered by Rules on Summary Procedure
notice of judgment or order (Sec. 2, Rule 40; Sec. 3, Rule 2. Case covered by the Rules on Small Claims
41). 3. In environmental cases, except in highly meritorious cases or
to prevent miscarriage of justice
Grounds for Motion for Reconsideration
1. Damages awarded are excessive Section 3. Action upon motion for new trial or
2. Evidence is insufficient to justify the decision reconsideration. — The trial court may set aside
3. Decision or final order is contrary to law the judgment or final order and grant a new trial,
upon such terms as may be just, or may deny the
motion. If the court finds that excessive damages
Section 2. Contents of motion for new trial or have been awarded or that the judgment or final
reconsideration and notice thereof. — The order is contrary to the evidence or law, it may
motion shall be made in writing stating the amend such judgment or final order accordingly.
ground or grounds therefor, a written notice of (3a)
which shall be served by the movant on the In Section 3, how will the court resolve your motion for new trial?
adverse party. A: The court may either deny or may set aside the judgment or final
A motion for new trial shall be proved in the order and grant a new trial. Literally, if the judgment is set aside,
manner provided for proof of motion. A motion there will be a trial de novo, a Latin word for new trial.
for the cause mentioned in paragraph (a) of the
preceding section shall be supported by BAR QUESTION: If Cholo files a Motion For New Trial and it is
affidavits of merits which may be rebutted by granted, will there always be a trial de novo?
affidavits. A motion for the cause mentioned in A: It DEPENDS on the ground for the motion:
paragraph (b) shall be supported by affidavits a) If the ground is FAME, there will be a trial de novo
of the witnesses by whom such evidence is because the proceeding will be set aside;
expected to be given, or by duly authenticated b) If the ground is NDE, there is no trial de novo. The evidence
documents which are proposed to be admitted which is based on the same decision
introduced in evidence. will remain. The case will be opened only for the purpose of
A motion for reconsideration shall point out a admitting the new evidence.
specifically the findings or conclusions of the
judgment or final order which are not Q: If Cholo files a Motion For Reconsideration and it is granted, will
supported by the evidence or which are there be a trial de novo?
contrary to law making express reference to A: There is NO trial de novo. The court will simply amend its
the testimonial or documentary evidence or to judgment. It is only a re-study of provision. The court will study its
the provisions of law alleged to be contrary to decision and go over the evidence and find out whether it made a
such findings or conclusions. mistake or not
A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal. (2a) Section 4. Resolution of motion. — A motion for
new trial or reconsideration shall be resolved
within thirty (30) days from the time it is
Contents of MR submitted for resolution. (n)
-A motion for reconsideration shall point out specifically the
findings or conclusions of the judgment or final order which are
not supported by the evidence or which are contrary to law,
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
such findings or conclusions (Sec. 2, Rule 37)
Effect of failure to conform to formalities

-A pro forma motion for new trial shall not toll the reglementary
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Section 5. Second motion for new trial. — A Section 8. Effect of order for partial new trial. —
motion for new trial shall include all grounds When less than all of the issues are ordered
then available and those not so included shall retried, the court may either enter a judgment or
be deemed waived. A second motion for new final order as to the rest, or stay the enforcement
trial, based on a ground not existing nor of such judgment or final order until after the new
available when the first motion was made, may trial. (7a)
be filed within the time herein provided
excluding the time during which the first Section 9. Remedy against order denying a motion
motion had been pending. for new trial or reconsideration. — An order
No party shall be allowed a second motion for denying a motion for new trial or reconsideration
reconsideration of a judgment or final order is not appealed, the remedy being an appeal from
(4a, 4, IRG) the judgment or final order. (n)
"Single motion rule" simply means that a party shall not be

allowed to file a second motion for reconsideration of judgment
or of a final order (Riano, 2009).
As a rule, the motion for new trial shall include all grounds then
available and those not included are deemed waived. So, if the
motion for new trial is based on two (2) grounds – FAME and
NDE – either or both grounds should be included in the motion.
Q: Suppose a motion for new trial, which is based only on FAME,

was denied, can there be a second motion for new trial on the
ground of NDE?
A: It DEPENDS:
a) If the NDE is already existing when the first motion was filed,
then the second motion for new trial will be denied because of
failure to raise it earlier – the second ground is deemed waived
for failure to raise the same;
b) However, if the ground for the second motion for new trial is
something not known or not existing or not available when the
party filed the first motion, then the second motion is allowed.
The second motion is not a pro forma motion.
So, what the law prohibits is you file a motion for new trial and
you do not include all the grounds then available. If the ground
surfaced only later, then it is allowed. Therefore, the motion for
new trial is an example of omnibus motion as defined in Rule 15,
Section 8:
Section 6. Effect of granting of motion for new

trial. — If a new trial is granted in accordance
with the provisions of this Rules the original
judgment or final order shall be vacated, and
the action shall stand for trial de novo; but the
recorded evidence taken upon the former trial,
insofar as the same is material and competent
to establish the issues, shall be used at the new
trial without retaking the same. (5a)
Section 7. Partial new trial or reconsideration.

— If the grounds for a motion under this Rule
appear to the court to affect the issues as to
only a part, or less than an of the matter in
controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or
grant reconsideration as to such issues if
severable without interfering with the
judgment or final order upon the rest. (6a)
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RULE 39 certified true copies of the judgment or judgments

or final order or orders sought to be enforced and
Execution, Satisfaction and Effect of of the entry thereof, with notice to the adverse
Judgments party.
The appellate court may, on motion in the same
Rule 39 is on the subject of Execution, Satisfaction and Effect of case, when the interest of justice so requires,
Judgments. This is the longest rule in the study of Civil direct the court of origin to issue the writ of
Procedure. Take note that there are 48 Sections. Let us first execution. (n)
review the fundamentals.
Execution
Q: When the judgment becomes final and executory, what are -Execution is a remedy afforded for the satisfaction of a judgment.
the effects? Its object being to obtain satisfaction of the judgment on which the
A: The finality of a judgment produces three (3) effects, to wit: writ is issued (Cagayan de Oro Coliseum vs. CA, 320 SCRA 731, 754).
1) The prevailing party is entitled to have the judgment executed -It is the fruit and the end of the suit, and is the life of the law (Ayo
as a matter of right and the issuance of the corresponding writ Violago-Isnani, 308 SCRA 543, 551).
of execution becomes a ministerial duty of the court (Rule 39);
2) The court rendering the judgment loses jurisdiction over the Which part of the decision is executed?
case so that it can no longer correct the judgment in substance, -The dispositive portion of the decision is that part of the decision
except to make corrections of clerical errors and omissions which is executed.
plainly due to inadvertence or negligence. (Locsin vs. Paredes, - The dispositive portion is that which vests rights upon the parties,
63 Phil. 87; Manaois vs. Natividad, L- 13927, Feb. 28, 1960; sets condition for the exercise of those rights, and imposes the
Maramba vs. Lozano, L-21533, June 29, 1967) corresponding duties and obligations. Hence if there is a conflict
between the dispositive portion of the decision and the body
If after the judgment is rendered, you file a motion for thereof, the dispositive portion controls irrespective of what
reconsideration or new trial, there is a possibility for the court appears in the body (Globe Telecom, Inc., vs. Florendo-Flores, 390
to change its mind and its judgment. But once the judgment has SCRA 201, 210).
become final, the court has no more power to change its
judgment substantially. The error will also become final, you can Writ of execution should conform to the dispositive portion
no longer change anything substantial. - The writ may not vary the terms of judgment to be executed (Buan
vs. CA, 235 SCRA 424, 432). Thus, if the judgment does not provide
EXCEPTION: There is one type of judgment which can be for the payment of interest, the writ of execution cannot modify
changed substantially even long after it became final as an the judgment by requiring the judgment obligor to pay interest.
exception to this rule. In the study of Persons, Judgment for That part of the writ imposing interest is void (Solidbank
Support. The judgment for support, which can be modified at Corporation vs. CA, 379 SCRA 159, 166). An order of execution
any time because the obligation to give support depends not which does not conform to the dispositive portion of the decision
only on the resources of the obligor, but also on the ever- sought to be enforced is null and void (Lao vs. King, 500 SCRA 280).
changing needs of the obligee. (Malabana vs. Abeto, 74 Phil. 13)
When is execution a matter of right?
EXAMPLE: The father refuses to support his minor child. After - SECTION 1. Execution Upon Judgments or Final Orders. —
trial, the court orders the father to support the child at P1,000 Execution shall issue as a matter of right, on motion, upon a
per month. Four years later, the father is already well-off and judgment or order that disposes of the action or proceeding upon
the child is already in nursery or kindergarten. So the child tells the expiration of the period to appeal therefrom if no appeal has
his lawyer that the amount for support must be increased from been duly perfected (Rule 39).
P1,000 to P5,000. The father says, “the court said P1,000 and if - It is ministerial duty of the court to issue writ of execution when
you change that to P5,000, that would be substantial.” The the judgment is already final. Thus, the act may be compelled by
father is wrong. The amount for support can be changed mandamus. This is base on the principle of immutability of
anytime. In the same manner. The amount can also be lowered, judgment (Philippine Trust Co. vs. Roxas, GR 171897, Otober 14,
as when the father loses his job. 2015).
3) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May 15, Q: Who will enforce the judgment?
1962) A: The very same court which rendered the judgment.
The same cause of action between the same parties can never Execution shall be applied for in the court of origin. If an appeal has
be the subject matter of another litigation in the future. Any been duly perfected and finally resolved, the execution may be
subsequent case is barred by prior judgment. applied for also in the court of origin on motion of the judgment
obligee. (Sec. 1) In filing a motion for execution of an appealed
Section 1. Execution upon judgments or final judgment, there is no need to wait for the records of the case to be
orders. — Execution shall issue as a matter of remanded to the court of origin. All that is required is for the appeal
right, or motion, upon a judgment or order that to have been duly perfected and finally resolved before execution
disposes of the action or proceeding upon the may be applied for (Borgonia vs. Decano 317 SCRA 660). This is
expiration of the period to appeal therefrom if because when the judgment obligee files a motion for execution in
no appeal has been duly perfected. (1a) the court of origin, all he has to do is to attach the certified true
If the appeal has been duly perfected and copies of (a) the judgment of the appellate court, and (b) the entry
finally resolved, the execution may forthwith of said judgment (Sec. 1) even if the records have not as yet been
be applied for in the court of origin, on motion remanded to the court of origin. This procedure prevents needless
of the judgment obligee, submitting therewith delays in the execution of the judgment.
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Amilhamja, Adj.
gives it life; and

If for whatever reason, the execution cannot be had with 2) it cannot vary the intent of the judgment it seeks to enforce.
dispatch in the court of origin, the new rules likewise afford the
judgment obligee a remedy. He may file a motion with the CLASSES OF EXECUTION
appellate court to direct the court of origin, in the interest of Q: What are the classes of execution under the law?
justice, to issue the writ of execution (Sec.1). A: The following:
I. As to their nature:
Q: How can the court issue the order when it has already lost 1) COMPULSORY execution – known as Execution as a Matter of
jurisdiction over the case because from what we have learned Right (Section 1)
here is that, one of the effects of the finality of judgment is that 2) DISCRETIONARY execution – known as Execution Pending Appeal
the court loses jurisdiction over the case. And when the court (Section 2)
loses jurisdiction, it can no longer act on the case. So, how can it
still issue orders in that case when actually, once the judgment II. As to how it is enforced (Section 6):
becomes final and executory, the trial court loses jurisdiction 1)EXECUTION BY MOTION
over the case and it can no longer act in that case? 2)EXECUTION BY INDEPENDENT ACTION
A: What is meant by that statement is that, the court can no
longer change the judgment. That is why new trial and Section 2. Discretionary execution. —
reconsideration is not anymore available in this stage. The (a) Execution of a judgment or final order pending
judgment is beyond the power of the court to change or alter. appeal. — On motion of the prevailing party with
BUT definitely the court can act on that case for the purpose of notice to the adverse party filed in the trial court
enforcing its judgment because it is absurd to claim that a trial while it has jurisdiction over the case and is in
court has the power to try and hear a case but once the possession of either the original record or the
judgment has already become final, it has no more power to record on appeal, as the case may be, at the time
enforce it. If you will really describe jurisdiction in its complete of the filing of such motion, said court may, in its
aspect, we can say jurisdiction is “the power of the court to act discretion, order execution of a judgment or final
on the case, to try, to decide and to enforce its judgment.” That order even before the expiration of the period to
would be more complete. Because enforcement is part of the appeal.
court's jurisdiction. After the trial court has lost jurisdiction the
motion for execution pending appeal may be filed
Q: Against whom shall the execution issue? in the appellate court.
A: Generally, execution can issue only against a (losing) party to Discretionary execution may only issue upon good
the case and not against one who is a complete stranger because reasons to be stated in a special order after due
majority of judgments are in personam. They are only hearing.
enforceable against the parties themselves or their successors- (b) Execution of several, separate or partial
in-interest – people who derive their rights from him. And a judgments. — A several, separate or partial
judgement can never be enforced against a complete stranger judgment may be executed under the same terms
who never had his day in court. (Cruzcosa vs. Concepcion, 101 and conditions as execution of a judgment or final
Phil. 146; Castañeda vs. De Leon, 55 O.G. 625, Jan. 26, 1959; order pending appeal. (2a)
Bacolod vs. Enriquez, 55 O.G. 10545, Dec. 21, 1959) When is execution a matter of discretion?
- SECTION 2(a) – Execution of a judgment or final order pending
Q: What portion in the decision is normally the subject of appeal. — On motion of the prevailing party with notice to the
execution? adverse party filed in the trial court while it has jurisdiction over
A: It is the dispositive portion – the “WHEREFORE...” – that is the case and is in possession of either the original record or the
going to be enforced. (Robles vs. Timario, 58 O.G. 1507, Feb. 19, record on appeal, as the case may be, at the time of the filing of
1962). such motion, said court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period
Writ of execution must conform with judgment to appeal.
The writ of execution must conform to the dispositive portion of - After the trial court has lost jurisdiction, the motion for
the decision to be executed and the execution is void if it is in execution pending appeal may be filed in the appellate court.
excess of and beyond the original judgment or award for it is a - Discretionary execution may only issue upon good reasons to be
settled general principle that a writ of execution must conform stated in a special order after due hearing (Rule 39).
strictly to every essential particulars of the judgment
promulgated (Ex-Bataan Veterans Security Agency, Inc. vs. What are the requisites for discretionary execution?
N:LRC 250 SCRA 418; Equatorial Realty Development Inc. vs. -There must be motion filed by the prevailing party with notice to
Mayfair Theatre Inc. 332 SCRA 139; Banquerigo vs. CA GR the adverse party;
164633 August 7, 2006). -There must be a hearing of the motion for discretionary
execution;
Thus, if the judgment does not provide for the payment of -The motion must be filed in the trial court while it has jurisdiction
interest, the writ of execution cannot modify the judgment by over the case and is in possession of either the original record or
requiring the judgment obligor to pay interest. That part of the record on appeal;
writ imposing interest is void (Solidbank Corp. vs. CA 379 SCRA - There must be good reason to justify the discretionary; - Good
159). reason must be stated in a special order.
Essential requisites of a writ of execution Is frivolous appeal a good reason to grant a discretionary
1) It must conform strictly to the decision or judgment which execution of judgment?
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Amilhamja, Adj.
- No. 3) When the judgment was novated by subsequent agreement of

- Where the sole reason given by the trial court in allowing the parties;
execution is that the appeal is frivolous and dilatory, execution 4) When it appears that the writ of execution has been
pending appeal cannot be justified because the authority to improvidently issued;
disapprove an appeal pertains to the appellate court 5) When the writ of execution is defective in substance;
(International School, Inc., [Manila] vs. Court of Appeals, 309 6) When the writ of execution is issued against the wrong
SCRA 474, 483). party; and
-Mere allegation that the appeal is dilatory is not a good reason 7) When the judgment debt has been paid or otherwise
to merit discretionary execution (Intramuros Tennis Club vs. CA, satisfied.
341 SCRA 90, 107).
Section 3. Stay of discretionary execution. —
Is posting of bond enough reason to grant execution pending Discretionary execution issued under the
appeal? preceding section may be stayed upon approval
- No. by the proper court of a sufficient supersedeas
The mere filing of a bond by the successful party is not in itself a bond filed by the party against whom it is
good reason for ordering execution pending appeal, because it directed, conditioned upon the performance of
is the combination of circumstances which is the dominating the judgment or order allowed to be executed in
reason that would justify immediate execution, the bond only an case it shall be finally sustained in whole or in part.
additional factor (International School, Inc., [Manila] vs. Court of The bond thus given may be proceeded against on
Appeals, 309 SCRA 474, 483). motion with notice to the surety. (3a
- Otherwise, what the prevailing party would do is just to post a Example of good reasons
bond, and execution pending appeal will be issued as a matter -Where there is danger of the judgment becoming ineffectual, as
of course (Roxas vs. CA, 157 SCRA 370). where the losing party is disposing of its assets (Scottish Union &
National Insurance Co. vs. Macadaeg, 91 Phil. 891) or where the
Q: May the court refuse to execute a judgment on the ground articles subject of the case would deteriorate (Federation of United
that the judgement was wrong or erroneous? NAMARCO vs. CA, 4 SCRA 867).
A: NO, because it is a matter of and the issuance of the -Where the judgment debtor is insolvent or in imminent danger of
corresponding writ of execution upon a final and executory being insolvent (Santos vs. Mojica, Jan. 4, 1969).
judgment is a ministerial duty of the court to execute which is Suppose the Court granted the motion for execution in cases where
compellable by mandamus. (Ebero vs. Cañizares, 79 Phil. 152) it is discretionary, how can execution be stayed?
The principle is: No matter how erroneous a judgment may be, -It can be stayed by filing a sufficient supersedeas bond which will
so long as the lower court had jurisdiction over the parties and guaranty the performance of the judgment or order allowed to be
the subject matter in litigation, (in short the judgment is valid), executed in case it shall be finally sustained in whole or in part
the said judgment is enforceable by execution once it becomes (Section 3, Rule 39).
final and executory. The error also becomes final. If it is
erroneous, the remedy is to appeal, otherwise the error Is motion necessary for the issuance of writ of execution?
becomes final as well. -Yes. Motion is necessary. It is extant from the Section 1, Rule 39.
Motion is required even if the judgment is already final and
In execution, if you are not careful, there are lawyers who are executory (Ilaw Buklod ng Manggagawa [IMB] vs. Nestle
very good in thwarting an execution where a series of Philippines, Inc., September 23, 2015).
maneuvers are utilized - we can still be delayed by questioning -Judge, therefore, may not order the execution motu prio (Lou vs.
this and that and sometimes courts are unwitting accomplices. Siapno, 335 SCRA 181).
That is why in the 1994 of
PELAYO vs. CA – 230 SCRA 606 Is it required that the losing party be notified of the motion for
HELD: “We have time and again ruled that courts should never execution?
allow themselves to be a party to maneuvers intended to delay We have repeatedly held that once a judgment becomes final, the
the execution of final decisions. They must nip in the bud any prevailing party is entitled as a matter of right to a writ of execution
dilatory maneuver calculated to defeat or frustrate the ends of and its issuance is the trial court's ministerial duty. When a
justice, fair play and prompt implementation of final and prevailing party files a motion for execution of a final and executory
executory judgment. Litigation must end and terminate judgment, it is not mandatory for such party to serve a copy of the
sometime and somewhere, and it is essential to an effective motion to the adverse party and to set it for hearing. The absence
administration of justice that once a judgment has become final, of such advance notice to the judgment debtor does not constitute
the winning party be not, through a mere subterfuge, deprived an infringement of due process (Mejia-Espinoza vs. Carino,
of the fruits of the verdict. Courts must therefore guard against GR193397, January 25, 2017).
any scheme calculated to bring about that result. Constituted as
they are to put an end to controversies, courts should frown Where should one file his motion for execution?
upon any attempt to prolong them.” - Execution shall be applied for in the COURT OF ORIGIN.
- If the appeal has been duly perfected and finally resolved, the
GENERAL RULE: Judgment is enforceable by execution once it execution may forthwith be applied for in the court of origin, on
becomes final and executory. motion of the judgment obligee, submitting therewith certified
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41) true copies of the judgment or judgments or final order or orders
1) When there has been a change in the situation of the parties, sought to be enforced and of the entry thereof, with notice to the
which makes the execution inequitable; adverse party (Section 1, Rule 39).
2) When it appears that the controversy has never been - NOTE: In an appealed decision, there is no need to wait for the
submitted to the judgment of the court; records of the case.
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Amilhamja, Adj.
Example: An order directing you to render an accounting. Take the

May one file the motion for execution with the appellate case of recovery of possession of land with accounting of the
court? income that you received. After trial, “Okey, Defendant, you turn
The appellate court may, on motion in the same case, when the over the possession of the property to the plaintiff and you render
interest of justice so requires, direct the court of origin to issue an accounting.” Appeal ka. Pag appeal mo, there must be an
the writ of execution (Sec. 1, Rule 39). accounting in the meantime.
Section 4. Judgments not stayed by appeal. — So, if there is a judgment for an action for support, you must
Judgments in actions for injunction, comply with the judgment even before it becomes final. So, the
receivership, accounting and support, and such amendment now includes support and this phrase, “such other
other judgments as are now or may hereafter judgments as are now or may hereafter be declared to be
be declared to be immediately executory, shall immediately executory.” Any judgment which is declared by law to
be enforceable after their rendition and shall be immediately executory has to be enforced even before it
not, be stayed by an appeal taken therefrom, becomes final and executory even if there is an appeal.
unless otherwise ordered by the trial court. On Q: Give an example of a law which declares a judgement to be
appeal therefrom, the appellate court in its immediately executory?
discretion may make an order suspending,
modifying, restoring or granting the injunction, A: The best example would be the Summary Procedure – where a
receivership, accounting, or award of support. decision of the MTC in a civil case is appealed to the RTC, the
The stay of execution shall be upon such terms decision of the RTC is immediately executory even if we go to the
as to bond or otherwise as may be considered CA. It has to be executed unless the appellate court will stop the
proper for the security or protection of the execution in the meantime.
rights of the adverse party. (4a)
VENUE: What are the judgments that are not stayed by appeal?
Infante vs. Aran Builders, 531 SCRA 123 – the proper venue SECTION 4. Judgments Not Stayed by Appeal. — Judgments in
depends on the determination of whether the present action for actions for 1) injunction, 2) receivership, 3) accounting and 4)
revival judgment is real or personal action. support, and such other judgments as are now or may hereafter be
declared to be immediately executory, shall be enforceable after
Please take note: their rendition and shall not be stayed by an appeal taken
-If the writ of execution was issued and levy made within five therefrom, unless otherwise ordered by the trial court. On appeal
years from entry of the judgment, the auction sale may be made therefrom, the appellate court in its discretion may make an order
even after the five year period. The sale of the property and the suspending, modifying, restoring or granting the injunction,
proceeds are merely means to carry the writ of execution and a receivership, accounting, or award of support.
levy already validly made. Accordingly and the application of the
proceeds are merely, the levy is the essential act by which the
property is set apart for the satisfaction of judgment Section 5. Effect of reversal of executed judgment.
(Government vs. Echaus, 71 Phil. 318; Vda de Quiambao vs. — Where the executed judgment is reversed
Manila Motor, 3 SCRA 444). totally or partially, or annulled, on appeal or
otherwise, the trial court may, on motion, issue
May the running of the five interrupted? such orders of restitution or reparation of
The Court in certain instances, allowed execution of the damages as equity and justice may warrant under
judgment by mere motion despite the lapse of he five-year time. the circumstances. (5a)
In many instances, the delays in the execution of judgment were
through causes clearly attributable to the judgment debtor as Section 6. Execution by motion or by independent
when he employs legal maneuvers to block the enforcement of action. — A final and executory judgment or order
the judgment. Delays attributable to the defendant have the may be executed on motion within five (5) years
effect of suspending the running of the prescriptive period for from the date of its entry. After the lapse of such
the enforcement of the judgment (Camacho vs. CA, 287 SCRA time, and before it is barred by the statute of
611; Republic vs. CA, 260 SCRA 344, 349-350). limitations, a judgment may be enforced by
action. The revived judgment may also be
GENERAL RULE: If there is an appeal, the judgment will be enforced by motion within five (5) years from the
stayed. date of its entry and thereafter by action before it
EXCEPTIONS (Under Section 4): Judgments in actions for is barred by the statute of limitations. (6a)
injunction, receivership, accounting, support, judgment
declared to be immediately executory. What is the lifetime of the writ of execution?
So, actions for injunction, receivership, accounting, support. So The writ shall continue in effect during the period within which the
for example: there’s an injunction from the court: “The judgment may be enforced. Hence the writ may be enforced within
defendant is enjoined from trespassing on plaintiff’s land.” Then the five-year period from entry of judgment because within that
you appealed. So, the decision is not final. Now, if the judgment period, the writ may be enforced by motion (Sec. 6, Rule 39).
is not yet final, what will you do in the meantime. So, you’ll say;
“I’ll just continue to trespass because anyway the judgment is How may final and executory judgment or order be executed?
not yet final.” Ah hindi yan pwede. Even if the judgment is not BY MOTION- Within five (5) years from the date of its entry.
yet final, even if it is on appeal, you have to honor the injunction. Section 6, Rule 39
So, in effect, it is a matter of right. BY ACTION- After the lapse of such time, and before it is barred by
the statute of limit
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Amilhamja, Adj.
What is revival of judgment? The writ shall continue in effect during the period within which the
- It is an action intended to secure the execution of a previous judgment may be enforced by motion (Sec. 14). Hence, the writ is
judgment which has become dormant after the passage of five enforceable within the five-year period from entry of judgment as
years without it being executed upon motion of the prevailing provided for in Sec. 6 because within that period, the writ may be
party. enforced by motion. This is an amendment to the old rule (Sec. 11
- It is not intended to re-open any issue affecting the merits of R 39) which provided that the lifetime of the writ was 60 days from
the case judgment debtor’s case nor the propriety or the receipt of the writ by the officer required to enforce it.
correctness of the first judgment.
- It is a new and an independent action separate and distinct Q: Suppose the defendant becomes rich after 5 years, can I still file
from the previous action sought to be revived. The cause of a motion to execute?
action is the judgment itself (Saligumba vs. Palanog, 573 SCRA 8, A: No more, because execution by motion must be filed within 5
15-16). years only from the date of its entry. If the judgment was not
executed within the 5-year period, the judgment has become
What are the defenses that may be invoked in an action to revive dormant.
- Jurisdictional defenses
- Prescription A writ of execution issued by motion of the prevailing party after
- Payment five (5) years from the date of entry of the judgment is null and
- Other defenses arising after the finality of judgment void. There is then a need for the prevailing party to file an
independent action for the revival of the judgment before the
- NOTE: action is barred by the statute of limitations (Tag Fibers, Inc. vs.
-It may even be subject to counterclaims arising out of the NLRC 344 SCRA 29; Terry vs. People 314 SCRA 669).
transactions not connected with the former controversy
(Basilonia vs. Villaruz, August 10, 2015) It was held that if the writ of execution was issued and the levy
made within five years from the entry of the judgment, the auction
Please take note: sale may be made even after the five-year period. The sale of the
-The revived judgment may also be enforced by motion within property and the application of the proceeds are merely the means
five (5) years from the date of its entry and thereafter by action to carry out the writ of execution and a levy already validly made.
before it is barred by the statute of limitations (Section 6, Rule Accordingly, the levy is the essential act by which the property is
39; PNB vs. Bondoc, 14 SCRA 770, 770-772). set apart for the satisfaction of the judgment (Gov’t. vs Echaus 71
-The rule abandoned the previous ruling of the Supreme Court Phil. 318; Quiambao vs. Manila Motor Co., 3 SCRA 444). The sale
in PNB vs Deloso and Luzon Surety vs. IAC. must however, be made within ten years during which the
judgment can be enforced (Ansaldo vs. Fidelity & Surety Company,
Which court has jurisdiction over an action for revival of 84 Phil. 547; Jalandoni vs. PNB 108 SCRA 102).
judgment?
Heirs of Miranda, Sr., vs. Miranda, GR 179638, July 8, 2013 – An Q: What is a dormant judgment?
action for revival of judgment may be filed either in the same A: A DORMANT judgment is one that was not executed within 5
court where the judgment was rendered or in the place where years.
the plaintiff or defendant resides or in any other place
designated by the statutes. Revival of Judgment
Q: So, how can that (dormant) judgment be awaken?
Q: How do you execute a judgment? A: The procedure is to file another civil action. A civil action for
A: You file a motion for execution before the same court which revival of judgment. That is what you call EXECUTION BY
rendered the judgment. INDEPENDENT ACTION which must be filed before it is barred by
the statute of limitations. The second sentence states, “after the
Q: How is the execution enforced? lapse of such time (which is 5 years) and before it is barred by the
A: There are two 2 modes under Section 6: statute of limitations, a judgment may be enforced by action.”
1) Execution by motion – within five (5) years from the date of
its entry; and Q: When will it be barred by the statute of limitations ?
2) Execution by independent action if the five year period to A: According to Article 1144 of the New Civil Code, the judgment
execute by motion has elapsed with no motion having been filed may be enforced only within ten (10) years.
and before it is barred by the statute of limitations.. The ten-year period commences to run from the finality of the
judgment which is the period within which the judgment can be
Execution BY MOTION means that the prevailing party shall ask enforced (Art. 1152 in relation to Art. 1144[3], Civil Code). Because
the court to issue a writ of execution by simply filing a motion in under the Rules, the date of the finality of the judgment or final
the same case. order shall be deemed to be the date of entry (Sec. 2 R 36) the
EXAMPLE: I am the plaintiff and I have a judgment here against period shall run also from the date of entry of the judgment.
the defendant. I do not know of any assets of the defendant
because the defendant for the meantime is as poor as a rat. But An action for revival of judgment presupposes that the same can
after a certain period of time he becomes a wealthy man. All I no longer be enforced by mere motion. This means that from the
have to do is to file a motion and the court will order the date of the finality of the judgment no motion was filed for the
execution, provided the motion is filed within 5 years from the execution of said judgment, thus, the need for its enforcement by
date of the entry of judgment. The date of the entry of judgment action.
and the date of finality are the same (Rule 36, Section 2).
Lifetime of a writ of execution The action for revival of judgment is no more than a procedural
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Amilhamja, Adj.
means of securing the execution of a previous judgment which primitive suit or a mere auxiliary or supplemental remedy”
has become dormant after the passage of five years without it (Aldeguer vs. Gemelo 68 Phil. 421).
being executed upon motion of the prevailing party (Saligumba
vs. Palanog GR 143365 December 4, 2008). The purpose of the new action is not to reexamine and retry issues
already decided and the cause of action of this new action is the
The action to revive a judgment must be filed within ten years judgment to be revived and no identity of causes of action can be
from the date the judgment becomes final because an action to said to exist between the first and the second actions (Caina vs. CA
enforce a judgment prescribes in ten years from the finality of GR 114393 Dec. 14 1994). GThe consideration of any issue affecting
the judgment (Art. 1144[3] in relation to Art. 1152, Civil Code of matters that could have been raised in the previous case must be
the Philippines). Since the date of the finality of the judgment or deemed as definitely foreclosed (Phil. Reconstruction Corp. Inc. Vs.
final order shall be deemed to be the date of the entry (Sec. 2 R Aparente 45 SCRA 217). It is not meant to retry the case all over
36), the prescriptive period shall run from the date of entry of again (Enriquez vs. CA 372 SCRA 372).
the judgment.
Venue of revival of judgment action
When a judgment is revived under Section 6, such revived In Infante vs. Aran Builders Inc. GR 156596, August 24, 2007, the
judgment may also be enforced by motion within 5 years from Court xplained thus:
the date of its entry and thereafter by action also before it is “... the proper venue depends on the determination of whether the
barred by the statute of limitations (Sec. 6). present action for revival of judgment is a real action or a personal
action ... if the action for revival of judgment affects title to or
Revived judgment a new judgment possession of real property, or interest therein, then it is a real
A revived judgment is deemed a new judgment separate and action that must be filed with the court of the place where the real
distinct from the original judgment. It is not a continuation of property is located. If such action does not fall under the category
the original judgment. The action to revive the judgment is a of real actions, it is then a personal action that may be filed with
new action and results in a new judgment constituting a new the court of the place where the plaintiff or defendant resides...”
cause of action with a new period of limitation. Hence, the ten
(10) year period to revive the revived judgment shall commence When the five-year period to execute by motion may be
to run from the date of the finality of the revived judgment and interrupted
not from the date of finality of the old, original judgment (PNB In many instances, the delays in the execution of the judgment
vs. Bondoc 14 SCRA 770). were through causes clearly attributable to the judgment debtor as
when he employs legal maneuvers to block the enforcement of the
While this ruling was abandoned in PNB vs. Deloso 23 SCRA 266 judgment. Delays attributable to the defendant have the effect of
and Luzon Surety Co. Inc. vs. IAC GR 72645 June 30, 1987, which suspending the running of the prescriptive period for the
held that the ten-year period should run from the finality of the enforcement of the judgment (Potenciano vs. Mariano 93 SCRA
original judgment and not from the finality of the revived 463; Camacho vs. CA 287 SCRA 611; Republic vs. CA 260 SCRA 344).
judgment, the ruling in Bondoc was resurrected in the present
provision of Section 6 which declares in its last sentence that There are instances where the Court allowed execution by motion
“The revived judgment may also be enforced by motion within even after the lapse of five years upon meritorious grounds. These
five (5) years from the date of its entry and thereafter by action exceptions have one common denominator, and that is, the delay
before it is barred by the statute of limitations.” is caused or occasioned by actions of the judgment debtor and/or
is incurred for his benefit or advantage. It has been held that in
The SC had long ago ruled that after the lapse of five (5) years, computing the time limit for enforcing a final judgment, the general
the judgment “is reduced to a mere right of action in favor of the rule is that the time when the execution is stayed, either by
person whom it favors which must be enforced, as are all agreement of the parties for a definite time, by injunction, or by
ordinary actions, by the institution of a complaint in the regular the taking of an appeal or writ of error, shall not be included. Thus,
form” (Compana General de Tobacos vs. Martinez and Nolan 29 the time during which execution is stayed should be excluded, and
Phil. 515; Aldeguer vs. Gemelo 68 Phil. 421). the said time will be extended by any delay occasioned by the
debtor as when the writ of execution cannot be enforced within
If the prevailing party fails to have the decision enforced by a the five-year period because the debtor filed petitions in the CA
motion after the lapse of five years from the date of entry of the and in the SC challenging the trial court’s judgment as well as the
judgment, the said judgment is reduced to a right of action writ of execution. Such petitions suspended or interrupted the
which must be enforced by the institution of the complaint in a further enforcement of the writ (Yau vs. Silverio GR 158848;
regular court within ten years from the time the judgment Macapagal vs. Gako GR 171994, February 4, 2008).
became final (Bausa vs. Heirs of Juan Dino GR 167281 August 28,
2008). The period may also be interrupted by the agreement of the parties
Action for Revival not to reopen any issue affecting the merits of to suspend the enforcement of the judgment (Torralba vs. de los
the judgment Angeles 96 SCRA 69; Macias vs. Lim 431 SCRA 20).
An action for revival of judgment is not intended to reopen any When 5- and 10-year periods do not apply
issue affecting the merits of the judgment debtor’s case nor the The periods do not apply to
propriety or the correctness of the first judgment. It is a new and a) special proceedings, such as land registration and
independent action wherein the cause of action is the decision cadastral cases, wherein the right to ask for a writ of possession
itself and not the merits of the action upon which the judgment does not prescribe (Rodil vs. Benedicto 95 SCRA 137;
sought to be enforced is rendered (Juco vs. Heirs of Tomas Siy b) judgments for support which do not become dormant and which
Chung Fu GR 150233 February 16, 2005; Saligumba vs. Palanog, can always be executed by motion despite lapse of the five-year
supra). It is an “original action, not a mere incident of the period because the obligation is a continuing one and the court
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never loses jurisdiction to enforce the same (Canonizado vs. judgment may also be enforced by motion within five (5) years
Benitez 127 SCRA 610). from the date of its entry and thereafter by action before it is
barred by the statute of limitations.”
Therefore, since the judgment will be enforced by motion for
five (5) years, then after the fifth year, it will be enforced by For example, I have here a judgment nine (9) years ago. I want to
independent action. So, I will start the civil action for revival of enforce it by action to revive judgment. You mean to tell me that
judgment between or after the 5th year but before the 10th the revived judgment is good for another ten (10) years? Another
year. So, that is what we have to remember. 5 years for motion to a right of action and then I can still revive it
within 10 years?
Q: Do you mean to tell me that I have to file the case all over
again, practically repeating what happened 5 years ago? Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the
A: NO, because the judgment in the independent action is a SC said that the period applies all over again from the finality of the
judgment reviving the first judgment. revived judgment. So, you have another ten (10) years. However,
this principle is abandoned in the later case of PNB vs. VELOSO (32
For example, more than 5 years ago I sued you to collect on a SCRA 266), the SC said that the original period is only computed
promissory note and you alleged payment, and you lost and the from the date of the original judgment.
court said that you are liable to me. On the seventh year when I
revived that judgment, my rights are no longer based or derived And of course, because of those 2 conflicting cases, the court
on the promissory note but on such judgment. But you can still resolved those issues in the case of LUZON SURETY CO. vs. IAC (151
invoke other defenses such as lack of jurisdiction, fraud. But you SCRA 652) where the SC said, the later doctrine of VELOSO prevails.
cannot question the correctness of the original judgment So, with that ruling, the 10-year period applies only from the date
because that is already res adjudicata. You are entitled to put up of the original judgment, but you cannot say that once it is revived,
any defense that you have against me provided that you cannot you have another 10 years.
question the correctness of the original judgment. That is the
rule. But now, you look at the new law: “The revived judgment may also
be enforced by motion within five (5) years from the date of its
Q: Discuss briefly the nature of the action for enforcement of a entry and thereafter by action before it is barred by the statute of
dormant judgment. limitations.” Ano yan? That is a revival of the BONDOC ruling!
A: The action for enforcement of a dormant judgment is an Binalik yung original ruling which is, the revived judgment is good
ordinary civil action the object of which is two-fold, namely, for another 10 years.
a) to revive the dormant judgment, and
b) to execute the judgment reviving it, if it grants the So, I repeat, the last sentence has resurrected the ruling in the case
plaintiff any relief. of PNB vs. BONDOC and superseded again LUZON vs. IAC. You are
entitled to another 10 years from the date of the revived judgment.
Hence, the rights of the judgment-creditor depend upon the
second judgment. Being an ordinary civil action, it is subject to Section 7. Execution in case of death of party. —
all defenses, objections and counterclaims which the judgment- In case of the death of a party, execution may
debtor may have except that no inquiry can be made as to the issue or be enforced in the following manner:
merits of the first judgment. Therefore, defenses that do not go (a) In case of the death of the judgment obligee,
to the merits of the first judgment, such as lack of jurisdiction, upon the application of his executor or
collusion, fraud, or prescription, may be set up by the judgment- administrator, or successor in interest;
debtor. (Cia. Gral. De Tabacos vs. Martinez, 17 Phil. 160; (b) In case of the death of the judgment obligor,
Salvante vs. Ubi Cruz, 88 Phil. 236) [Taken from Remedial Law against his executor or administrator or successor
Reviewer by Nuevas] in interest, if the judgment be for the recovery of
real or personal property, or the enforcement of a
Q: Give the exception to the rule on dormant judgment. lien thereon;
A: The only exception is the judgment for support which does (c) In case of the death of the judgment obligor,
not become dormant, nor does it prescribe. You can execute it after execution is actually levied upon any of his
anytime even beyond the 5-year period and any unpaid property, the same may be sold for the
installment may be executed by motion. (Florendo vs. Organo, satisfaction of the judgment obligation, and the
90 Phil. 483) So, even if the judgment is more than 5 years old, officer making the sale shall account to the
the defendant defaulted on the seventh year, you just file a corresponding executor or administrator for any
motion to collect that judgment. surplus in his hands. (7a)
How is execution effected if the oblige or judgment obligor dies?
Q: Suppose the judgment was executed and the property of the - In case of the death of the judgment obligee, upon the application
defendant was levied on the 4th year, and the next stage is the of his executor or administrator, or successor in interest (Section
auction sale. 7[a], Rule 39).
A: The SC said the auction sale must also be WITHIN 10 years. - In case of the death of the judgment obligor, against his executor
So, even if the property was levied, the auction sale must be or administrator or successor in interest, if the judgment be for
within 10 years. Not only the levy of the property must be done the recovery of real or personal property, or the enforcement of a
within 10 years but also the including the auction sale, lien thereon (Section 7[b], Rule 39).
otherwise, any auction sale done beyond 10 years in null and - In case of the death of the judgment obligor, after execution is
void. actually levied upon any of his property, the same may be sold for
the satisfaction of the judgment obligation, and the officer making
Now, look at the last sentence in Section 6: “The revived the sale shall account to the corresponding executor or
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administrator for any surplus in his hands (Section 7[c], Rule Section 9. Execution of judgments for money, how
39). enforced. —
(a) Immediate payment on demand. — The officer
Section 8. Issuance, form and contents of a writ shall enforce an execution of a judgment for
of execution. — The writ of execution shall: (1) money by demanding from the judgment obligor
issue in the name of the Republic of the the immediate payment of the full amount stated
Philippines from the court which granted the in the writ of execution and all lawful fees. The
motion; (2) state the name of the court, the judgment obligor shall pay in cash, certified bank
case number and title, the dispositive part of check payable to the judgment obligee, or any
the subject judgment or order; and (3) require other form of payment acceptable to the latter,
the sheriff or other proper officer to whom it is the amount of the judgment debt under proper
directed to enforce the writ according to its receipt directly to the judgment obligee or his
terms, in the manner hereinafter provided: authorized representative if present at the time of
(a) If the execution be against the property of payment. The lawful fees shall be handed under
the judgment obligor, to satisfy the judgment, proper receipt to the executing sheriff who shall
with interest, out of the real or personal turn over the said amount within the same day to
property of such judgment obligor; the clerk of court of the court that issued the writ.
(b) If it be against real or personal property in If the judgment obligee or his authorized
the hands of personal representatives, heirs, representative is not present to receive payment,
devisees, legatees, tenants, or trustees of the the judgment obligor shall deliver the aforesaid
judgment obligor, to satisfy the judgment, with payment to the executing sheriff. The latter shall
interest, out of such property; turn over all the amounts coming into his
(c) If it be for the sale of real or personal possession within the same day to the clerk of
property to sell such property describing it, and court of the court that issued the writ, or if the
apply the proceeds in conformity with the same is not practicable, deposit said amounts to a
judgment, the material parts of which shall be fiduciary account in the nearest government
recited in the writ of execution; depository bank of the Regional Trial Court of the
(d) If it be for the delivery of the possession of locality.
real or personal property, to deliver the The clerk of said court shall thereafter arrange for
possession of the same, describing it, to the the remittance of the deposit to the account of the
party entitled thereto, and to satisfy any costs, court that issued the writ whose clerk of court
damages, rents, or profits covered by the shall then deliver said payment to the judgment
judgment out of the personal property of the obligee in satisfaction of the judgment. The
person against whom it was rendered, and if excess, if any, shall be delivered to the judgment
sufficient personal property cannot be found, obligor while the lawful fees shall be retained by
then out of the real property; and the clerk of court for disposition as provided by
(e) In all cases, the writ of execution shall law. In no case shall the executing sheriff demand
specifically state the amount of the interest, that any payment by check be made payable to
costs, damages, rents, or profits due as of the him.
date of the issuance of the writ, aside from the (b) Satisfaction by levy. — If the judgment obligor
principal obligation under the judgment. For cannot pay all or part of the obligation in cash,
this purpose, the motion for execution shall certified bank check or other mode of payment
specify the amounts of the foregoing reliefs acceptable to the judgment obligee, the officer
sought by the movant.(8a) shall levy upon the properties of the judgment
obligor of every kind and nature whatsoever
WRIT OF EXECUTION is actually the document which is issued which may be disposed, of for value and not
by the court addressed to the sheriff. The writ is actually the otherwise exempt from execution giving the latter
instruction to the sheriff on what he should do. It would the option to immediately choose which property
depend on what kind of decision – is it an action for sum of or part thereof may be levied upon, sufficient to
money or is it for recovery of real property? Mimeographed satisfy the judgment. If the judgment obligor does
iyan, addressed to the sheriff. These are standard forms in not exercise the option, the officer shall first levy
court. on the personal properties, if any, and then on the
Now, with respect to Section 8, the changes can be found in real properties if the personal properties are
paragraph [e] which mandates now that the writ of execution insufficient to answer for the judgment.
must state the exact amount to be collected. That is why The sheriff shall sell only a sufficient portion of the
according to the last sentence of paragraph [e], “for this personal or real property of the judgment obligor
purpose, the motion for execution shall specify the amounts of which has been levied upon.
the foregoing reliefs sought by the movant.” When there is more property of the judgment
Normally, when lawyers file a motion to execute they will just obligor than is sufficient to satisfy the judgment
quote the principal, but they do not state the costs or interests. and lawful fees, he must sell only so much of the
Now, under the new rule, when you file the motion for personal or real property as is sufficient to satisfy
execution, you must also state how much is the costs or the judgment and lawful fees.
interests. Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either
real or personal property, may be levied upon in
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like manner and with like effect as under a writ in his possession or control such credits to which the judgment
of attachment. obligor is entitled.
(c) Garnishment of debts and credits. — The -2) The garnishee shall make a written report to the court within
officer may levy on debts due the judgment five (5) days from service of the notice of garnishment stating
obligor and other credits, including bank whether or not the judgment obligor has sufficient funds or credits
deposits, financial interests, royalties, to satisfy the amount of the judgment.(Section 9[c], Rule 39).
commissions and other personal property not
capable of manual delivery in the possession or How is garnishment effected?
control of third parties. Levy shall be made by - If not, the report shall state how much funds or credits the
serving notice upon the person owing such garnishee holds for the judgment obligor. The garnished amount in
debts or having in his possession or control cash, or certified bank check issued in the name of the judgment
such credits to which the judgment obligor is obligee, shall be delivered directly to the judgment obligee within
entitled. The garnishment shall cover only such ten (10) working days from service of notice on said garnishee
amount as will satisfy the judgment and all requiring such delivery, except the lawful fees which shall be paid
lawful fees. directly to the court (Section 9[c], Rule 39).
The garnishee shall make a written report to
the court within five (5) days from service of the Execution of money judgment, simplified:
notice of garnishment stating whether or not Sec. 9, Rule 39
the judgment obligor has sufficient funds or 1. Sheriff will demand for payment
credits to satisfy the amount of the judgment. 2. If judgment obligor cannot pay in cash, he shall choose property
If not, the report shall state how much funds or to be levied and sold.
credits the garnishee holds for the judgment 3. If judgment obligor does not choose, sheriff shall levy personal
obligor. The garnished amount in cash, or property first, then real property
certified bank check issued in the name of the 4. Sheriff may also garnish credit and debts.
judgment obligee, shall be delivered directly to
the judgment obligee within ten (10) working Please take NOTE:
days from service of notice on said garnishee -It is not proper for the sheriff to immediately levy the property of
requiring such delivery, except the lawful fees the judgment debtor. He must first make a demand to pay. Only
which shall be paid directly to the court. when the judgment debtor does not pay, after demand that the
In the event there are two or more garnishees sheriff is authorized to levy the properties of the judgment debtor
holding deposits or credits sufficient to satisfy (Leachon vs. Pascua, A.M. No. P-11-2972, September 28, 2011).
the judgment, the judgment obligor, if
available, shall have the right to indicate the Section 10. Execution of judgments for specific
garnishee or garnishees who shall be required act. —
to deliver the amount due, otherwise, the (a) Conveyance, delivery of deeds, or other
choice shall be made by the judgment obligee. specific acts; vesting title. — If a judgment directs
The executing sheriff shall observe the same a party to execute a conveyance of land or
procedure under paragraph (a) with respect to personal property, or to deliver deeds or other
delivery of payment to the judgment obligee. documents, or to perform, any other specific act
(8a, 15a) in connection therewith, and the party fails to
How to execute a money judgment? comply within the time specified, the court may
- The officer shall enforce an execution of a judgment for money direct the act to be done at the cost of the
be demanding from the judgment obligor the immediate disobedient party by some other person
payment of the full amount stated in the writ of execution and appointed by the court and the act when so done
all lawful fees. Judgment obligor shall pay in cash or certified shall have like effect as if done by the party. If real
check. It shall be paid directly to the judgment oblige or his or personal property is situated within the
representative. If not available, to the executing sheriff. (Section Philippines, the court in lieu of directing a
9[a], Rule 39). conveyance thereof may by an order divest the
- If the cash payment is not sufficient, then the sheriff shall levy title of any party and vest it in others, which shall
any properties which may be disposed of for value, except have the force and effect of a conveyance
properties exempt from execution. The judgment obligor has executed in due form of law. (10a)
the right to choose what properties to be levied sufficient to (b) Sale of real or personal property. — If the
satisfy the judgment. If the obligor did not choose, the officer judgment be for the sale of real or personal
shall levy personal property first that are sufficient to satisfy the property, to sell such property, describing it, and
judgment, then the real properties (Section 9[a], Rule 39). apply the proceeds in conformity with the
judgment. (8[c]a)
How to execute a money judgment? (c) Delivery or restitution of real property. — The
-The officer may levy on debts due the judgment obligor and officer shall demand of the person against whom
other credits, including bank deposits, financial interests, the judgment for the delivery or restitution of real
royalties, commissions and other personal property not capable property is rendered and all persons claiming
of manual delivery in the possession or control of third parties. rights under him to peaceably vacate the property
- This is garnishment (Section 9[c], Rule 39). within three (3) working days, and restore
possession thereof to the judgment obligee,
How is garnishment effected? otherwise, the officer shall oust all such persons
-1) By serving notice upon the person owing such debts or having therefrom with the assistance, if necessary, of
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appropriate peace officers, and employing such How is delivery of personal property executed?
means as may be reasonably necessary to In judgments for the delivery of personal property, the officer shall
retake possession, and place the judgment take possession of the same and forthwith deliver it to the party
obligee in possession of such property. Any entitled thereto and satisfy any judgment for money as therein
costs, damages, rents or profits awarded by the provided (Section 10 [e], Rule 39).
judgment shall be satisfied in the same manner
as a judgment for money. (13a) Is contempt a proper remedy in case the judgment obligor refuse
(d) Removal of improvements on property to vacate the property?
subject of execution. — When the property - No. what the sheriff should do is to dispossess him of the property
subject of the execution contains and if after dispossession, the judgment debtor should execute acts
improvements constructed or planted by the of ownership or possession or in any manner disturb the possession
judgment obligor or his agent, the officer shall of the judgment creditor, then and only then may he be punished
not destroy, demolish or remove said for contempt (Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1, 5).
improvements except upon special order of the
court, issued upon motion of the judgment Section 11. Execution of special judgments. —
obligee after the hearing and after the former When a judgment requires the performance of
has failed to remove the same within a any act other than those mentioned in the two
reasonable time fixed by the court. (14a) preceding sections, a certified copy of the
(e) Delivery of personal property. — In judgment shall be attached to the writ of
judgment for the delivery of personal property, execution and shall be served by the officer upon
the officer shall take possession of the same the party against whom the same is rendered, or
and forthwith deliver it to the party entitled upon any other person required thereby, or by
thereto and satisfy any judgment for money as law, to obey the same, and such party or person
therein provided. (8a) may be punished for contempt if he disobeys such
judgment. (9a)
How is specific act executed?
- If a judgment directs a party to execute a conveyance of land There are two (2) types of judgment under the law: (1) SPECIAL and
or personal property, or to deliver deeds or other documents, or (2) ORDINARY.
to perform any other specific act in connection therewith, and
the party fails to comply within the time specified, the court may ORDINARY JUDGMENT - if the judgment orders the defendant to
direct the act to be done at the cost of the disobedient party by pay money, like a collection case (Section 9) or to deliver real or
some other person appointed by the court and the act when so personal property (Section 10).
done shall have like effects as if done by the party. If real or
personal property is situated within the Philippines, the court in SPECIAL JUDGMENT – is a judgment which requires the defendant
lieu of directing a conveyance thereof may by an order divesting to perform an act other than payment of money or delivery of
the title of any party and vest it in others, which shall have the property. It refers to a specific act which a party or person must
force and effect of a conveyance executed in due form of law personally do because his personal qualifications and
(Section 10 [a], Rule 39). circumstances have been taken into consideration.
How is sale of personal or real property executed? EXAMPLE of a special judgment: Usurpation of government office.
-If the judgment be for the sale of real or personal property, to You are the city treasurer and somebody else is appointed city
sell such property, describing it, and apply the proceeds in treasurer and you refuse to vacate. So there will be a quo warranto
conformity with the judgment. (Section 10 [b], Rule 39). proceeding. Then the judgment will order you to vacate your
position, such judgment is a special judgment because you are not
How is delivery of delivery or restitution of real property ordered to pay anything nor deliver property.
executed?
- The officer shall demand of the person against whom the Q: What is the difference between the Ordinary and Special
judgment for the delivery or restitution of real property is judgments?
rendered and all persons claiming rights under him to peaceably A: A special judgment may be enforced by contempt if the
vacate the property within three (3) working days, and restore defendant refuses to comply with the judgment. But if it is an
possession thereof to the judgment obligee; otherwise, the ordinary judgment and the defendant refuses to comply, it is not a
officer shall oust all such persons therefrom with the assistance, ground for contempt.
if necessary, of appropriate peace officers, and employing such
means as may be reasonably necessary to retake possession, Under Section 9, if the judgment-debtor refuses to pay his debt,
and place the judgment obligee in possession of such property. you cannot cite him in contempt because under the Constitution,
(Section 10 [c], Rule 39). no person shall be imprisoned for debt. The correct procedure
under Section 9 is you look for properties of the defendant and
How is removal of improvements on property subject of then ipa-levy mo. You do not send the debtor to jail.
execution enforced?
-The officer shall not destroy, demolish or remove said Under Section 10 if the squatter refuses to vacate, you cannot cite
improvements except upon special order of the court, issued him in contempt and send him to jail. Kung ayaw, you get police for
upon motion of the judgment obligee after due hearing and back up. That is the procedure.
after the former has failed to remove the same within a
reasonable time fixed by the court (Section 10 [d], Rule 39). But under Section 11, if defendant is ordered to vacate his office
because he is no longer the city treasurer, the plaintiff can have him
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arrested and brought to jail because that is a special judgment livelihood;

which can be enforced by contempt. (c) Three horses, or three cows, or three carabaos,
or other beasts of burden, such as the judgment
Q: Give an specific rule on special judgment. obligor may select necessarily used by him in his
A: Section 9 of Rule 65 – Special Civil Action for Certiorari, ordinary occupation;
Prohibition and Mandamus, to wit: (d) His necessary clothing and articles for ordinary
Rule 65, Sec 9. Service and enforcement of order or judgment.- personal use, excluding jewelry;
A certified copy of the judgment rendered in accordance with (e) Household furniture and utensils necessary for
the last preceding section shall be served upon the court, quasi- housekeeping, and used for that purpose by the
judicial agency, tribunal, corporation, board, officer or person judgment obligor and his family, such as the
concerned in such manner as the court may direct, and judgment obligor may select, of a value not
disobedience thereto shall be punished as contempt. An exceeding one hundred thousand pesos;
execution may issue for any damages or costs awarded in (f) Provisions for individual or family use sufficient
accordance with section 1 of Rule 39. (9a) for four months;
(g) The professional libraries and equipment of
Therefore, a judgement in a certiorari, prohibition or mandamus judges, lawyers, physicians, pharmacists, dentists,
case, if not complied with, is punishable by contempt. engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three hundred
Section 12. Effect of levy on execution as to thousand pesos in value;
third person. — The levy on execution shall (h) One fishing boat and accessories not exceeding
create a lien in favor of the judgment obligee the total value of one hundred thousand pesos
over the right, title and interest of the owned by a fisherman and by the lawful use of
judgment obligor in such property at the time which he earns his livelihood;
of the levy, subject to liens and encumbrances (i) So much of the salaries, wages, or earnings of
then existing. (16a) the judgment obligor for his personal services
within the four months preceding the levy as are
This is related to Property Registration Decree. necessary for the support of his family;
EXAMPLE: I own a piece of land which I mortgaged with the (j) Lettered gravestones;
bank. The bank annotated the mortgage on my title. My land is (k) Monies, benefits, privileges, or annuities
now subject to a lien or an encumbrance. I also owe money to accruing or in any manner growing out of any life
A. He sued me. He won and my land is levied. insurance;
(l) The right to receive legal support, or money or
Q: What happens to the mortgage lien of the bank? Will it be property obtained as such support, or any pension
affected by the levy of A? or gratuity from the Government;
A: NO. Even if the property is sold at public auction and we will (m) Properties specially exempted by law.
assume that it will go to A, that property is still under mortgage. But no article or species of property mentioned in
A has to respect the lien – nauna yung sa bank eh! Wherever the this section shall be exempt from execution issued
property goes, it is subject to the mortgage lien of the bank upon a judgment recovered for its price or upon a
because the bank’s lien is superior. judgment of foreclosure of a mortgage thereon.
Therefore, an execution is always subject to the liens and (12a)
encumbrances of the property then existing. What are properties not subject to execution?
- (a) The judgment obligor's family home as provided by law, or the
PROPERTIES EXEMPT FROM EXECUTION homestead in which he resides, and land necessarily used in
We already discussed the rule that to satisfy a money judgment, connection therewith;
the sheriff can levy on the properties of the judgment obligor. - (b) Ordinary tools and implements personally used by him in his
All properties are subject, except those exempt from execution. trade, employment, or livelihood;
What are the properties of a defendant-debtor which cannot be - (c) Three horses, or three cows, or three carabaos, or other beasts
subject to a levy or execution? of burden, such as the judgment obligor may select necessarily
used by him in his ordinary occupation;
What is the effect of levy on execution to third person? - (d) His necessary clothing and articles for ordinary personal use,
-The levy on execution shall create a lien in favor of the excluding jewelry;
judgment obligee over the right, title and interest of the - (e) Household furniture and utensils necessary for housekeeping,
judgment obligor in such property at the time of the levy, subject and used for that purpose by the judgment obligor and his family,
to liens and encumbrances then existing. (Section 12, Rule 12). such as the judgment obligor may select, of a value not exceeding
one hundred thousand pesos;
Section 13. Property exempt from execution. — -(f) Provisions for individual or family use sufficient for four months;
Except as otherwise expressly provided by law, - (g) The professional libraries and equipment of judges, lawyers,
the following property, and no other, shall be physicians, pharmacists, dentists, engineers, surveyors, clergymen,
exempt from execution: teachers, and other professionals, not exceeding three thousand
(a) The judgment obligor's family home as pesos in value;
provided by law, or the homestead in which he - (h) One fishing boat and accessories not exceeding the total value
resides, and land necessarily used in of one hundred thousand pesos owned by a fisherman and by the
connection therewith; lawful use of which he earns his livelihood;
(b) Ordinary tools and implements personally -(i) So much of the salaries, wages, or earnings of the judgment
used by him in his trade, employment, or obligor for his personal services within the four months preceding
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Amilhamja, Adj.
the levy as are necessary for the support of his family; Section 14. Return of writ of execution. — The writ
-(j) Lettered gravestones; of execution shall be returnable to the court
- (k) Monies, benefits, privileges, or annuities accruing or in any issuing it immediately after the judgment has
manner been satisfied in part or in full. If the judgment
growing out of any life insurance; cannot be satisfied in full within thirty (30) days
- (l) The right to receive legal support, or money or property after his receipt of the writ, the officer shall report
obtained as such support, or any pension or gratuity from the to the court and state the reason therefor. Such
Government; writ shall continue in effect during the period
- (m)Properties specially exempted by law. within which the judgment may be enforced by
motion. The officer shall make a report to the
What is the procedure if the property of third party is levied? court every thirty (30) days on the proceedings
-Basic principle: the execution may issue only upon a person taken thereon until the judgment is satisfied in
who is a party to the action or proceeding, and not against one full, or its effectivity expires. The returns or
who did not have his day in court (Philippine Coconut periodic reports shall set forth the whole of the
Federation, Inc., vs. Republic, October 16, 2016). proceedings taken, and shall be filed with the
-Thus, the property not owned by the judgment debtor or by one court and copies thereof promptly furnished the
not a party to the case should not be levied. parties. (11a)
BAR PROBLEM: A lawyer went to Alemars professional books Under the PRESENT RULE, the 60-day period is already obsolete.
supply. He bought books worth half a million. That was utang – The effectivity now of a writ of execution is, for as long as the
P500,000. The store decided to sue the lawyer for such amount judgment may be enforced by motion. And under Section 6, a
not paid. The bookstore got a judgment. There was a levy on the judgment may be enforced by motion within five (5) years. So in
lawyer’s property. The sheriff levied on the same books which effect, the writ of execution is valid for FIVE (5) years. The lifetime
became the source of the case. The lawyer claimed exemption now has been extended from 60 days to 5 years.
under Section 13 up to P300,000 because it forms part of his Of course, as much as possible, the writ must be enforced within
professional library. Is the lawyer correct?? 30 days and after that, the sheriff will tell the court about what
A: the lawyer is WRONG because of the last paragraph of Section happened after 30 days.
13 that no article or species of properties mentioned in this So, the sheriff says based on the RETURN, “Wala pang property ang
section shall be exempt from execution issued upon a judgment defendant.” Now, he just keeps on holding the writ. And maybe
recovered for the price or upon a judgment of foreclosure of a after one or two years, meron na’ng property ang defendant, he
mortgage thereon. can now enforce the writ. But definitely, there is no need for the
defendant to go back to the court to ask for another alias writ of
What the law says, is the properties mentioned here (in Section execution because the writ can still be enforced – for as long as the
13) are exempt, EXCEPT when that debt arose out of that judgment may be enforced by motion.
property. For example, here, why are you indebted to Alemars? Although every 30 days, the sheriff has to make a periodic report
Because of unpaid books. So the very books which gave rise to with the court. I do not know if the sheriffs here follow this
an obligation are not exempt from execution. procedure. But definitely, a writ is good for 5 years and in every 30
But if another creditor will file a case against the lawyer, and that days, the sheriff has to make a report.
other creditor will win, that creditor cannot levy on the books
because they are exempt. But the creditor from whom the books
were bought can levy on the same books which gave rise to an Section 15. Notice of sale of property on
obligation. execution. — Before the sale of property on
execution, notice thereof must be given as
The same thing with FAMILY HOME. For example, you will build follows:
a family home and then, hindi mo binayaran ang materials, labor (a) In case of perishable property, by posting
and there was judgment against you. The creditor and the owner written notice of the time and place of the sale in
can levy on the house. He cannot claim exemption because the three (3) public places, preferably in conspicuous
debt arose out of that same family home. areas of the municipal or city hall, post office and
public market in the municipality or city where the
Another example: You borrowed money from the bank. You sale is to take place, for such time as may be
mortgaged your house. Later on, you cannot pay the loan. The reasonable, considering the character and
bank foreclosed the mortgage. You cannot argue that your condition of the property;
house cannot be levied. Kaya nga may utang ka because of your (b) In case of other personal property, by posting
house. Since you mortgaged it, that is not covered by the a similar notice in the three (3) public places
exemption. above-mentioned for not less than five (5) days;
(c) In case of real property, by posting for twenty
Q: What is the REASON behind this exemption? (20) days in the three (3) public places
A: The reason for this exemption is PUBLIC POLICY. And common abovementioned a similar notice particularly
sense no? – the debtor should pay but this should not deprive describing the property and stating where the
him of a means to earn his living. You can levy on his property property is to be sold, and if the assessed value of
but not to the extent of depriving him of his provisions for the property exceeds fifty thousand (P50,000.00)
support, means of livelihood by throwing him on to the street, pesos, by publishing a copy of the notice once a
homeless, penniless, despondent, dejected, mournful, week for two (2) consecutive weeks in one
melancholy, forlorn... newspaper selected by raffle, whether in English,
Filipino, or any major regional language
194
Amilhamja, Adj.
published, edited and circulated or, in the the value of the property levied on. In case of
absence thereof, having general circulation in disagreement as to such value, the same shall be
the province or city; determined by the court issuing the writ of
(d) In all cases, written notice of the sale shall execution. No claim for damages for the taking or
be given to the judgment obligor, at least three keeping of the property may be enforced against
(3) days before the sale, except as provided in the bond unless the action therefor is filed within
paragraph (a) hereof where notice shall be one hundred twenty (120) days from the date of
given the same manner as personal service of the filing of the bond.
pleadings and other papers as provided by The officer shall not be liable for damages for the
section 6 of Rule 13. taking or keeping of the property, to any third-
The notice shall specify the place, date and party claimant if such bond is filed. Nothing herein
exact time of the sale which should not be contained shall prevent such claimant or any third
earlier than nine o'clock in the morning and not person from vindicating his claim to the property
later than two o'clock in the afternoon. The in a separate action, or prevent the judgment
place of the sale may be agreed upon by the obligee from claiming damages in the same or a
parties. In the absence of such agreement, the separate action against a third-party claimant
sale of the property or personal property not who filed a frivolous or plainly spurious claim.
capable of manual delivery shall be held in the When the writ of execution is issued in favor of
office of the clerk of court of the Regional Trial the Republic of the Philippines, or any officer duly
Court or the Municipal Trial Court which issued representing it, the filing of such bond shall not be
the writ of or which was designated by the required, and in case the sheriff or levying officer
appellate court. In the case of personal is sued for damages as a result of the levy, he shall
property capable of manual delivery, the sale be represented by the Solicitor General and if held
shall be held in the place where the property is liable therefor, the actual damages adjudged by
located. (18a) the court shall be paid by the National Treasurer
out of such funds as may be appropriated for the
Auction sale follows levy. There must be notices because auction purpose. (17a)
sale is open to the public. Notices must be posted in 3 public What is the procedure if the property of third party is levied?
places preferably in the municipal hall, post office and public -Under the Rules, a person not a party to the action, claiming a
market. In paragraph [c], if the property to be sold is REAL property levied upon may execute an affidavit of his title or right
property, the notices must describe the property, its location, of possession over the property. The affidavit shall be served
assessed value if exceeding P50,000. Aside from notices, the law upon the officer making a levy and a copy thereof must also be
requires PUBLICATION in a newspaper so that many people can served upon the judgment oblige (Section 16, Rule 39). This
read it. remedy of the claiming party is called TERCERIA.
You try to go there in the Hall of Justice, may bulletin board diyan
sa labas. Notices are posted there. If you are interested in buying What is the procedure if the property of third party is levied?
something, para mura, tingnan mo diyan. - After receipt of the affidavit of claim, what should the sheriff do?
The law is very detailed now. The notice must specify the date - The officer shall not be bound to keep the property, unless such
of the sale, time, place etc. And the SC ruled that these judgment obligee, on demand of the officer, files a bond
requirements are to be strictly complied with. approved by the court to indemnify the third-party claimant in a
For example: You do not comply with the posting in 3 sum not less than the value of the property levied on. The officer
conspicuous places. Dalawa lang sa iyo, that is VOID. The SC said shall not be liable for damages for the taking or keeping of the
the requirements of the law for the holding of the public auction property, to any third-party claimant if such bond is filed. (Section
should be strictly followed. Why? Because in a public auction, 16, Rule 39).
you are depriving somebody of his property – the judgment
debtor. So, all the requirements of the law intended to deprive Suppose damage was incurred by the third party on account of
the owner of his ownership over his property should be officer’s taking and keeping of his property, when should the
followed. action against the bond be filed?
-The action should be filed within one hundred twenty (120) days
Section 16. Proceedings where property from the date of the filing of the bond. Under Section 16, Rule 39,
claimed by third person. — If the property it is provided that No claim for damages for the taking or keeping
levied on is claimed by any person other than of the property may be enforced against the bond unless the
the judgment obligor or his agent, and such action therefor is filed within one hundred twenty (120) days from
person makes an affidavit of his title thereto or the date of the filing of the bond.
right to the possession thereof, stating the
grounds of such right or title, and serves the What are the remedies of a third party in case his property is
same upon the officer making the levy and copy levied?
thereof, stating the grounds of such right or 1. The third party can ask the court to quash writ of
tittle, and a serves the same upon the officer execution.
making the levy and a copy thereof upon the 2. The third party can avail the remedy of terceria.
judgment obligee, the officer shall not be 3. The third party can file a separate action to nullify the
bound to keep the property, unless such levy
judgment obligee, on demand of the officer, Ching vs. CA, 423 SCRA 356
files a bond approved by the court to indemnity
the third-party claimant in a sum not less than
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Amilhamja, Adj.
What is the remedy of the judgment oblige in case the claim of to remove or deface them.
the third party is frivolous?
The judgment oblige may claim damages in the same or a Section 18. No sale if judgment and costs paid. —
separate action against a third party claimant who filed a At any time before the sale of property on
frivolous or plainly spurious claim (Section 16, Rule 39) execution, the judgment obligor may prevent the
sale by paying the amount required by the
Section 16 is a third-party claim procedure in execution. In execution and the costs that have been incurred
Spanish, it is called the remedy of TERCERIA. therein. (20a)
ILLUSTRATION: Lolo decided to go on a prolong vacation and he Q: Can the debtor stop the auction sale? Is there a way for the
entrusted to Karen (ang paborito ni Lolo) all his personal debtor to prevent the sale of his property?
property like appliances – TV, refrigerator, car, etc. Karen used A: YES, if the obligor pay the amount required by the execution
the property owned by Lolo while he was not around. and the costs – bayaran mo lahat ang utang mo, ‘di wala na.
Unknown to Lolo, Karen has a pending civil case filed by Gina. That’s what the law says. For example, the bank is foreclosing
Gina obtained a judgment against Karen. There was levy on your mortgage and sell the property at public auction. To stop the
execution. The sheriff went to the premises of Karen, he found bank from proceeding with the sale, you go to the bank and pay
all these properties and he enforced the levy. all your obligations. So, wala ng auction sale. But you have to pay
Lolo came home and went to get the property from Karen. all. “Kalahati lang ang bayaran ko.” NOT ALLOWED!
Karen said, they were all levied by the sheriff. Lolo is a person
who is not the defendant but his properties were erroneously Section 19. How property sold on execution; who
levied because the sheriff thought they belong to Karen who may direct manner and order of sale. — All sales
was in possession of them. of property under execution must be made at
public auction, to the highest bidder, to start at
Q: What is the remedy of Lolo who is not a defendant? the exact time fixed in the notice. After sufficient
A: The remedy is to apply Section 16, Rule 39 – You file with the property has been sold to satisfy the execution, no
sheriff, copy furnish Gina, what is known as the third-party more shall be sold and any excess property or
claim or TERCERIA. Terceria is an affidavit asserting that he is proceeds of the sale shall be promptly delivered
the owner of the property levied. So with that the sheriff is to the judgment obligor or his authorized
now placed on guard because the sheriff may be held liable if representative, unless otherwise directed by the
he continues to sell the property of the defendant. So, he is not judgment or order of the court. When the sale is
bound to the proceedings regarding the sale unless the of real property, consisting of several known lots,
judgment obligee, on demand of the sheriff, files a bond they must be sold separately; or, when a portion
approved by the court to indemnify a third party claimant in of such real property is claimed by a third person,
the sum not less than the value of the property levied on. he may require it to be sold separately. When the
Suppose sabi ni Gina: “Huwag kang maniwala diyan. Kalokohan sale is of personal property capable of manual
iyan. Drama lang yan ni Karen at Lolo. Proceed with the auction delivery, it must be sold within view of those
sale!” Gina has to file a bond if he insists that the auction sale attending the same and in such parcels as are
must proceed. Gina must put up a bond approved by the court likely to bring the highest price. The judgment
to indemnify the third-party claimant, a sum not less than the obligor, if present at the sale, may direct the order
value of the property. If the property is worth half a million, the in which property, real or personal shall be sold,
bond must also be half a million. Then auction sale may when such property consists of several known lots
proceed because there’s already a bond to answer for the or parcels which can be sold to advantage
damages. The sale may go on despite the third party claim. separately. Neither the officer conducting the
execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly
Section 17. Penalty for selling without notice, in any purchase at such sale. (21a)
or removing or defacing notice. — An officer
selling without the notice prescribed by section Section 20. Refusal of purchaser to pay. — If a
15 of this Rule shall be liable to pay punitive purchaser refuses to pay the amount bid by him
damages in the amount of five thousand for property struck off to him at a sale under
(P5,000.00) pesos to any person injured execution, the officer may again sell the property
thereby, in addition to his actual damages, both to the highest bidder and shall not be responsible
to be recovered by motion in the same action; for any loss occasioned thereby; but the court may
and a person willfully removing or defacing the order the refusing purchaser to pay into the court
notice posted, if done before the sale, or before the amount of such loss, with costs, and may
the satisfaction of the judgment if it be satisfied punish him for contempt if he disobeys the order.
before the sale, shall be liable to pay five The amount of such payment shall be for the
thousand (P5,000.00) pesos to any person benefit of the person entitled to the proceeds of
injured by reason thereof, in addition to his the execution, unless the execution has been fully
actual damages, to be recovered by motion in satisfied, in which event such proceeds shall be for
the same action. (19a) the benefit of the judgment obligor. The officer
Notices in the auction sale should be posted in three public may thereafter reject any subsequent bid of such
places. For example, you go to the hall of justice. You can see purchaser who refuses to pay. (22a)
there a bulletin board, maraming nakalagay, half man niyan
mga notice of public aution ba. Now, do not go there and kunin
ang mga papel doon. Baka multahan ka. You are not supposed
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Amilhamja, Adj.
Section 21. Judgment obligee as purchaser. — Section 24. Conveyance to purchaser of personal
When the purchaser is the judgment obligee, property not capable of manual delivery. — When
and no third-party claim has been filed, he need the purchaser of any personal property, not
not pay the amount of the bid if it does not capable of manual delivery, pays the purchase
exceed the amount of his judgment. If it does, price, the officer making the sale must execute
he shall pay only the excess. (23a) and deliver to the purchaser a certificate of sale.
Such certificate conveys to the purchaser all the
Section 22. Adjournment of sale. — By written rights which the judgment obligor had in such
consent of the judgment obligor and obligee, or property as of the date of the levy on execution or
their duly authorized representatives, the preliminary attachment. (26a)
officer may adjourn the sale to any date and
time agreed upon by them. Without such Section 25. Conveyance of real property;
agreement, he may adjourn the sale from day certificate thereof given to purchaser and filed
to day if it becomes necessary to do so for lack with registry of deeds. — Upon a sale of real
of time to complete the sale on the day fixed in property, the officer must give to the purchaser a
the notice or the day to which it was adjourned. certificate of sale containing:
(24a) (a) A particular description of the real property
sold;
Suppose the auction sale was scheduled today. Hindi natapos (b) The price paid for each distinct lot or parcel;
because there are many properties to be sold like 200 lots. Then (c) The whole price paid by him;
we can continue tomorrow. (d) A statement that the right of redemption
Suppose we will continue next week. Then both parties must expires one (1) year from the date of the
agree by written consent of the judgment obligor and obligee if registration of the certificate of sale.
we will postpone it to another date na mas malayo. Such certificate must be registered in the registry
of deeds of the place where the property is
Q: Do you know why these things are very important? situated. (27 a)
A: Because you already advertised that it will be held on this day.
So any change on the date has to be strictly complied with. Section 26. Certificate of sale where property
That’s the reason behind these. claimed by third person. — When a property sold
Q: Now, what properties can be sold at public auction? by virtue of a writ of execution has been claimed
A: It’s either personal property or real property. We are sure by a third person, the certificate of sale to be
about that. issued by the sheriff pursuant to sections 23, 24
and 25 of this Rule shall make express mention of
TWO TYPES OF PERSONAL PROPERTY: the existence of such third-party claim. (28a)
1) one capable of manual delivery; and
2) one not capable of manual delivery – iyong mga Section 27. Who may redeem real property so
intangibles ba! sold. — Real property sold as provided in the last
preceding section, or any part thereof sold
Q: What is the procedure for the sale of personal property separately, may be redeemed in the manner
capable of manual delivery and one not capable of manual hereinafter provided, by the following persons:
delivery? (a) The judgment obligor; or his successor in
A: You have Section 23 and Section 24. interest in the whole or any part of the property;
(b) A creditor having a lien by virtue of an
Q: When it comes to real property, what is the procedure? A: attachment, judgment or mortgage on the
The procedure is Section 25. property sold, or on some part thereof,
So let’s go over there, conveyance to purchaser of personal subsequent to the lien under which the property
property capable of manual delivery. Like a car and appliance or was sold. Such redeeming creditor is termed a
any other tangible object. redemptioner. (29a)
Section 23. Conveyance to purchaser of Section 28. Time and manner of, and amounts
personal property capable of manual delivery. payable on, successive redemptions; notice to be
— When the purchaser of any personal given and filed. — The judgment obligor, or
property, capable of manual delivery, pays the redemptioner, may redeem the property from the
purchase price, the officer making the sale purchaser, at any time within one (1) year from
must deliver the property to the purchaser and, the date of the registration of the certificate of
if desired, execute and deliver to him a sale, by paying the purchaser the amount of his
certificate of sale. The sale conveys to the purchase, with the per centum per month interest
purchaser all the rights which the judgment thereon in addition, up to the time of redemption,
obligor had in such property as of the date of together with the amount of any assessments or
the levy on execution or preliminary taxes which the purchaser may have paid thereon
attachment. (25a) after purchase, and interest on such last named
amount at the same rate; and if the purchaser be
also a creditor having a prior lien to that of the
redemptioner, other than the judgment under
which such purchase was made, the amount of
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Amilhamja, Adj.
such other lien, with interest. Section 30. Proof required of redemptioner. — A
Property so redeemed may again be redeemed redemptioner must produce to the officer, or
within sixty (60) days after the last redemption person from whom he seeks to redeem, and serve
upon payment of the sum paid on the last with his notice to the officer a copy of the
redemption, with two per centum thereon in judgment or final order under which he claims the
addition and the amount of any assessments or right to redeem, certified by the clerk of the court
taxes which the last redemptioner may have wherein the judgment or final order is entered, or,
paid thereon after redemption by him, with if he redeems upon a mortgage or other lien, a
interest on such last named amount, and in memorandum of the record thereof, certified by
addition, the amount of any liens held by said the registrar of deeds, or an original or certified
last redemptioner prior to his own, with copy of any assignment necessary to establish his
interest. The property may be again, and as claim; and an affidavit executed by him or his
often as a redemptioner is so disposed, agent, showing the amount then actually due on
redeemed from any previous redemptioner the lien. (32a)
within sixty (60) days after the last redemption,
on paying the sum paid on the last previous When the ORIGINAL OWNER wants to redeem the property from
redemption, with two per centum thereon in B, there is NO NEED for him to prove his right as a judgment
addition, and the amounts of any assessments debtor. The judgment debtor has the automatic right to redeem.
or taxes which the last previous redemptioner
paid after the redemption thereon, with But when it is B, C or D (REDEMPTIONERS) who wants to redeem,
interest thereon, and the amount of any liens they MUST PROVE to the sheriff that they are qualified to redeem.
held by the last redemptioner prior to his own, They must prove their status because not every person in the
with interest. world has the right to redeem. The right to redeem is only given
Written notice of any redemption must be to the debtor, the successor-in-interest or the redemptioner.
given to the officer who made the sale and a Thus, you must prove your personality to effect redemption.
duplicate filed with the registry of deeds of the
place, and if any assessments or taxes are paid
by the redemptioner or if he has or acquires any Section 31. Manner of using premises pending
lien other than that upon which the redemption; waste restrained. — Until the
redemption was made, notice thereof must in expiration of the time allowed for redemption,
like manner be given to the officer and filed the court may, as in other proper cases, restrain
with the registry of deeds; if such notice be not the commission of waste on the property by
filed, the property may be redeemed without injunction, on the application of the purchaser or
paying such assessments, taxes, or liens. (30a) the judgment obligee, with or without notice; but
it is not waste for a person in possession of the
Section 29. Effect of redemption by judgment property at the time of the sale, or entitled to
obligor, and a certificate to be delivered and possession afterwards, during the period allowed
recorded thereupon; to whom payments on for redemption, to continue to use it in the same
redemption made. — If the judgment obligor manner in which it was previously used, or to use
redeems he must make the same payments as it in the ordinary course of husbandry; or to make
are required to effect a redemption by a the necessary repairs to buildings thereon while
redemptioner, whereupon, no further he occupies the property. (33a)
redemption shall be allowed and he is restored
to his estate. The person to whom the Section 32. Rents, earnings and income of
redemption payment is made must execute property pending redemption. — The purchaser
and deliver to him a certificate of redemption or a redemptioner shall not be entitled to receive
acknowledged before a notary public or other the rents, earnings and income of the property
officer authorized to take acknowledgments of sold on execution, or the value of the use and
conveyances of real property. Such certificate occupation thereof when such property is in the
must be filed and recorded in the registry of possession of a tenant. All rents, earnings and
deeds of the place in which the property is income derived from the property pending
situated and the registrar of deeds must note redemption shall belong to the judgment obligor
the record thereof on the margin of the record until the expiration of his period of redemption.
of the certificate of sale. The payments (34a)
mentioned in this and the last preceding
sections may be made to the purchaser or Section 33. Deed and possession to be given at
redemptioner, or for him to the officer who expiration of redemption period; by whom
made the sale. (31a) executed or given. — If no redemption be made
within one (1) year from the date of the
Q: Suppose Tikla redeems the property from Joshua. If the registration of the certificate of sale, the
sheriff will execute in favor of Tikla a certificate of redemption, purchaser is entitled to a conveyance and
to whom should Tikla pay? possession of the property; or, if so redeemed
A: The law says she can pay directly to the purchaser, the whenever sixty (60) days have elapsed and no
redemptioner or the person who made the sale. other redemption has been made, and notice
thereof given, and the time for redemption has
198
Amilhamja, Adj.
expired, the last redemptioner is entitled to the time after such return is made, shall be entitled to
conveyance and possession; but in all cases the an order from the court which rendered the said
judgment obligor shall have the entire period of judgment, requiring such judgment obligor to
one (1) year from the date of the registration of appear and be examined concerning his property
the sale to redeem the property. The deed shall and income before such court or before a
be executed by the officer making the sale or by commissioner appointed by it at a specified time
his successor in office, and in the latter case and place; and proceedings may thereupon be had
shall have the same validity as though the for the application of the property and income of
officer making the sale had continued in office the judgment obligor towards the satisfaction of
and executed it. the judgment. But no judgment obligor shall be so
Upon the expiration of the right of redemption, required to appear before a court or
the purchaser or redemptioner shall be commissioner outside the province or city in
substituted to and acquire all the rights, title, which such obligor resides or is found. (38a)
interest and claim of the judgment obligor to
the property as of the time of the levy. The Examination of Judgment Obligor When Judgment Unsatisfied
possession of the property shall be given to the -When the return of a writ of execution issued against property of
purchaser or last redemptioner by the same a judgment obligor, or any one of several obligors in the same
officer unless a third party adversely to the judgment, shows that the judgment remains unsatisfied, in whole
judgment obligor. (35a) or in part, the judgment obligee, at any time after such return is
made, shall be entitled to an order from the court which rendered
Section 34. Recovery of price if sale not the said judgment, requiring such judgment obligor to appear and
effective; revival of judgment. — If the be examined concerning his property and income before such court
purchaser of real property sold on execution, or or before a commissioner appointed by it, at a specified time and
his successor in interest, fails to recover the place; and proceedings may thereupon be had for the application
possession thereof, or is evicted therefrom, in of the property and income of the judgment obligor towards the
consequence of irregularities in the satisfaction of the judgment (Sec. 36, Rule 39).
proceedings concerning the sale, or because
the judgment has been reversed or set aside, or Section 37. Examination of obligor of judgment
because the property sold was exempt from obligor. — When the return of a writ of execution
execution, or because a third person has against the property of a judgment obligor shows
vindicated his claim to the property, he may on that the judgment remain unsatisfied, in whole or
motion in the same action or in a separate in part, and upon proof to the satisfaction of the
action recover from the judgment obligee the court which issued the writ, that a person,
price paid, with interest, or so much thereof as corporation, or other juridical entity has property
has not been delivered to the judgment obligor, of such judgment obligor or is indebted to him, the
or he may, on motion, have the original court may, by an order, require such person,
judgment revived in his name for the whole corporation, or other juridical entity, or any
price with interest, or so much thereof as has officer, or member thereof, to appear before the
been delivered to the judgment obligor. The court or a commissioner appointed by it, at a time
judgment so revived shall have the same force and place within the province or city where such
and effect as an original judgment would have debtor resides or is found, and be examined
as of the date of the revival and no more. (36a) concerning the same. The service of the order
shall bind all credits due the judgment obligor and
Section 35. Right to contribution or all money and property of the judgment obligor in
reimbursement. — When property liable to an the possession or in the control of such person
execution against several persons is sold corporation, or juridical entity from the time of
thereon, and more than a due proportion of the service; and the court may also require notice of
judgment is satisfied out of the proceeds of the such proceedings to be given to any party to the
sale of the property of one of them, or one of action in such manner as it may deem proper.
them pays, without a sale, more than his (39a)
proportion, he may compel a contribution from Examination of Obligor of Judgment Obligor
the others; and when a judgment is upon an - When the return of a writ of execution against the property of a
obligation of one of them, as security for judgment obligor shows that the judgment remains unsatisfied, in
another, and the surety pays the amount, or whole or in part, and upon proof to the satisfaction of the court
any part thereof, either by sale of his property which issued the writ, that a person, corporation, or other juridical
or before sale, he may compel repayment from entity has property of such judgment obligor or is indebted to him,
the principal. (37a) the court may, by an order, require such person, corporation, or
other juridical entity, or any officer or member thereof, to appear
Section 36. Examination of judgment obligor before the court or a commissioner appointed by it, at a time and
when judgment unsatisfied. — When the place within the province or city where such debtor resides or is
return of a writ of execution issued against found, and be examined concerning the same. (Sec. 37, Rule 39).
property of a judgment obligor, or any one of
several obligors in the same judgment, shows So under Section 36, you can ask the court to render judgment to
that the judgment remains unsatisfied, in allow you to subpoena the obligor and take the witness stand
whole or in part, the judgment obligee, at any subject to questioning so that you can discover where his
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Amilhamja, Adj.
properties are. So in effect, Section 36 is related to modes of another person, or of a corporation or other
discovery. This is actually a mode of discovery. This is a type of juridical entity, to be applied to the satisfaction of
deposition taking. It is related to the subject of deposition taking the judgment, subject to any prior rights over such
where the discovery of the witness stand to effect execution. property.
If, upon investigation of his current income and
EXAMPLE: The sheriff did not find any property of the obligor. So expenses, it appears that the earnings of the
the obligee can file a motion under Section 36 for examination judgment obligor for his personal services are
of the obligor under oath hoping that in the course of asking more than necessary for the support of his family,
questions, he might make some admissions. And the procedure the court may order that he pay the judgment in
is the same as in deposition but this is only done right inside the fixed monthly installments, and upon his failure to
courtroom. pay any such installment when due without good
excuse, may punish him for indirect contempt.
On the other hand under Section 37, you can also examine (42a)
people whom you believe owe the obligor such as his debtors,
or those holding his property, so that you can discover all his Section 41. Appointment of receiver. — The court
collectibles and ask that the same be garnished. So this time, it may appoint a receiver of the property of the
is the “obligor” of the judgment obligor who will be examined. judgment obligor; and it may also forbid a transfer
or other disposition of, or any interference with,
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment the property of the judgment obligor not exempt
obligor a sum of money. The obligee can file a motion under from execution. (43a)
Section 37 to subpoena Kenneth, Thadd and Francis to find out
if it is true that they are indebted to the judgment obligor. In this Section 42. Sale of ascertainable interest of
case, the obligee can as the court to garnish the money. judgment obligor in real estate. — If it appears
So, those are the objects of Sections 36 and 37. Of course there that the judgment obligor has an interest in real
are others, just go over them. estate in the place in which proceedings are had,
as mortgagor or mortgagee or otherwise, and his
NOTE: Actually a mode of discovery. interest therein can be ascertained without
controversy the receiver may be ordered to sell
Section 38. Enforcement of attendance and and convey such real estate or the interest of the
conduct of examination. — A party or other obligor therein; and such sale shall be conducted
person may be compelled, by an order or in all respects in the same manner as is provided
subpoena, to attend before the court or for the sale of real state upon execution, and the
commissioner to testify as provided in the two proceedings thereon shall be approved by the
preceding sections, and upon failure to obey court before the execution of the deed. (34a)
such order or subpoena or to be sworn, or to
answer as a witness or to subscribe his Section 43. Proceedings when indebtedness
deposition, may be punished for contempt as in denied or another person claims the property. —
other cases. Examinations shall not be unduly If it appears that a person or corporation, alleged
prolonged, but the proceedings may be to have property of the judgment obligor or to be
adjourned from time to time, until they are indebted to him, claims an interest in the property
completed. If the examination is before a adverse to him or denied the debt, the court may
commissioner, he must take it in writing and authorize, by an order made to that effect, the
certify it to the court. All examinations and judgment obligee to institute an action against
answers before a court commissioner must be such person or corporation for the recovery of
under oath, and when a corporation or other such interest or debt, forbid a transfer or other
juridical entity answers, it must be on the oath disposition of such interest or debt within one
of an authorized officer or agent thereof. (40a) hundred twenty (120) days from notice of the
order, and may punish disobedience of such order
Section 39. Obligor may pay execution against as for contempt. Such order may be modified or
obligee. — After a writ of execution against vacated at any time by the court which issued it,
property has been issued, a person indebted to or by the court in which the action is brought,
the judgment obligor may pay to the sheriff upon such terms as may be just. (45a)
holding the writ of execution the amount of his
debt or so much thereof as may be necessary to Section 44. Entry of satisfaction of judgment by
satisfy the judgment, in the manner prescribed clerk of court. — Satisfaction of a judgment shall
in section 9 of this Rule, and the sheriff's receipt be entered by the clerk of court in the court
shall be a sufficient discharge for the amount so docket, and in the execution book, upon the
paid or directed to be credited by the judgment return of a writ of execution showing the full
obligee on the execution. (41a) satisfaction of the judgment, or upon the filing of
an admission to the satisfaction of the judgment
Section 40. Order for application of property executed and acknowledged in the same manner
and income to satisfaction of judgment. — The as a conveyance of real property by the judgment
court may order any property of the judgment obligee or by his counsel unless a revocation of his
obligor, or money due him, not exempt from authority is filed, or upon the endorsement of
execution, in the hands of either himself or such admission by the judgment obligee or his
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Amilhamja, Adj.
counsel, on the face of the record of the of Verches .and the precedents therein invoked. The principle is
judgment. (46a) fully consistent not only with the opinion that acceptance of
payment of only the uncontroverted part of the claim should not
Section 45. Entry of satisfaction with or without preclude the plaintiff from prosecuting his appeal, to determine
admission. — Whenever a judgment is satisfied whether he should not have been allowed more, but also with logic
in fact, or otherwise than upon an execution on and common sense.” In other words, if a judgment is divisible,
demand of the judgment obligor, the judgment there is no prohibition.
obligee or his counsel must execute and
acknowledge, or indorse an admission of the EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or
satisfaction as provided in the last preceding more causes of action – I am satisfied with one cause but I am not
section, and after notice and upon motion the with the other. So, my appeal is only on the 2nd cause of action
court may order either the judgment obligee or where the award should be higher. I am not appealing in the first
his counsel to do so, or may order the entry of cause of action and the defendant did not also appeal. So I can
satisfaction to be made without such move to execute that portion of judgment, as far as the first cause
admission. (47a) of action is concerned and continue with my appeal on the second.
This is a divisible judgment. This is allowed.
Q: What does satisfaction of judgement mean?
A: SATISFACTION OF JUDGMENT is the compliance with or PROBLEM: Plaintiff sues for P1 million damages. The court gave an
fulfillment of the mandate thereof (31 Am. Jur. 354). award of P500,000 only (one-half the damages sued for).
Execution is not the same as satisfaction. Execution is the Defendant did not appeal because he is satisfied with the
method of enforcement of a judgment. Satisfaction refers to judgement. Meaning, he accepts the liability of up to P500,000,
compliance with or fulfillment of the mandate of judgment. “Judgment is good.” Plaintiff, however, is not satisfied, “It should
Normally, execution precedes satisfaction. But you can satisfy a be P1 million, so I will appeal.” He believes that even if he loses the
judgment without execution by simply paying voluntarily. And appeal, he is insured as to the P500,000.
when the judgment is satisfied, it has to be recorded the manner
of which is found in Sections 44 and 45 – either the sheriff Q: Can plaintiff move for the satisfaction of P500,000 and let the
himself will record “fully satisfied,” or, the creditor will file an other half continue on appeal?
admission that the judgment is fully satisfied, or, the debtor on A: YES, I think so. Anyway, there is no quarrel with respect to the
motion will ask that it be recorded that he has already paid. first half. To my mind, this is a DIVISIBLE judgment since defendant
accepts it and even if plaintiff loses appeal, the former is still liable
Q: Who may compel satisfaction of judgment? up to P500,000. So the plaintiff might as well claim it now for it is
A: Satisfaction of judgment may be compelled by the judgment- final insofar as the defendant is concerned while plaintiff’s appeal
creditor by means of execution, or by the judgment-debtor by is with respect to the balance. This is a possibility under the ruling
means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236) in VITAL-GOSON.
Now, here is an interesting question which has not yet been Section 46. When principal bound by judgment
asked in the Bar. They were expecting it as early as 2 years ago. against surety. — When a judgment is rendered
against a party who stands as surety for another,
Q: Can a plaintiff appeal from the judgment and at the same the latter is also bound from the time that he has
time move for execution of the same? Can you do both without notice of the action or proceeding, and an
being self-contradictory? Can you demand satisfaction of opportunity at the surety's request to join in the
judgment and at the same time appeal said judgment? defense. (48a)
A: PRIOR CASES say, you cannot do it because it is inconsistent.
When you comply with the satisfaction of judgment, you are When there is a judgment against the surety, the principal debtor
already accepting the correctness of judgment. But when you is also bound by the judgment from the time he has notice of the
are appealing it, you do not accept the same. That was the old action or proceeding and an opportunity at the surety’s request to
ruling which was MODIFIED in the case of join in the defense. The surety is only liable legally but the real
party liable is the debtor.
VITAL-GOSON vs. CA – 212 SCRA 235 [1992] (en banc)
ISSUE: Whether or not a judgment creditor is estopped from RES ADJUDICATA
appealing or seeking modification of a judgment which has been And finally, the most important section in Rule 39 is Section 47 –
executed at his instance. effect of judgment or final order. This is what we call the principle
HELD: It depends upon the nature of the judgment as being of res adjudicata.
indivisible or not. This is the doctrine laid down by this Court in
a case decided as early as 1925, Verches v. Rios, where the Section 47. Effect of judgments or final orders. —
judgment is INDIVISIBLE, acceptance of full satisfaction of the The effect of a judgment or final order rendered
judgment annihilates the right to further prosecute the appeal; by a court of the Philippines, having jurisdiction to
and that even partial execution by compulsory legal process at pronounce the judgment or final order, may be as
the instance of the prevailing party, places said party in estoppel follows:
to ask that the judgment be amended.” Indivisible means either (a) In case of a judgment or final order against a
you accept it as correct or you appeal. But you can not have your specific thing, or in respect to the probate of a will,
cake and eat it too. or the administration of the estate of a deceased
“Where the judgment is DIVISIBLE, estoppel should not operate person, or in respect to the personal, political, or
against the judgment creditor who causes implementation of a legal condition or status of a particular person or
part of the decision by writ of execution. This is the clear import his relationship to another, the judgment or final
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Amilhamja, Adj.
order is conclusive upon the title to the thing, I think we agree with that. Imagine, if two persons litigated for
the will or administration or the condition, years over the ownership of a parcel of land. Then after years of
status or relationship of the person, however, litigation, all the way to the SC, defendant won. Final. After one
the probate of a will or granting of letters of generation, both plaintiff and defendant are dead but their
administration shall only be prima facie children would continue. Here comes the children of the plaintiff
evidence of the death of the testator or raising the same issue of ownership. So, there is no end if there is
intestate; no res judicata.
(b) In other cases, the judgment or final order
is, with respect to the matter directly adjudged REQUISITES OF RES ADJUDICATA
or as to any other matter that could have been What are the requisites of res adjudicata? How do we know, since
missed in relation thereto, conclusive between there are 2 cases here? Does it mean that simply because there is
the parties and their successors in interest, by a case between us, there will be no more case between us in the
title subsequent to the commencement of the future? NO.
action or special proceeding, litigating for the
same thing and under the same title and in the Q: So what are the requisites of res adjudicata?
same capacity; and A: There is res judicata if the following REQUISITES are present:
(c) In any other litigation between the same 1) The judgment or order invoked as res adjudicata must be final;
parties or their successors in interest, that only 2) The court rendering the same must have jurisdiction over the
is deemed to have been adjudged in a former subject matter and of the parties;
judgment or final order which appears upon its 3) The judgment or order must be upon the merits; and
face to have been so adjudged, or which was 4) There must be, between the two cases, identity of parties,
actually and necessarily included therein or identity of subject matter, and identity of cause of action.
necessary thereto. (49a)
We know what this is all about – when the matter is already So the elements are similar with litis pendentia. Actually, they are
decided or finish already, you cannot re-open that easily. The based on the same rule – splitting of the cause of action. The only
direct provision of law which enunciates that principle is Section difference is, in litis pendentia, the first action is still pending. In res
47, which is composed of 3 portions: paragraphs [a], [b] and [c]. adjudicata, the first action has already been decided and the
decision has already become final.
Now, paragraph [a] is the principle of res adjudicata as applied
in judgment in rem (binding on the whole world) or at least quasi Section 48. Effect of foreign judgments or final
in rem. Paragraphs [b] and [c] are the application of the same orders. — The effect of a judgment or final order
doctrine with respect to judgment in personam (binding only on of a tribunal of a foreign country, having
the parties). jurisdiction to render the judgment or final order
is as follows:
RES ADJUDICATA and RES JUDICATA are the same. In the (a) In case of a judgment or final order upon a
Philippines, that is influenced by Roman Law and Spanish Law specific thing, the judgment or final order, is
(Pua vs. Lapitan, 57 O.G. 4914) But the principle is known conclusive upon the title to the thing, and
worldwide, although maybe known by another name. In Anglo- (b) In case of a judgment or final order against a
American law, it is known as the doctrine of Estoppel By person, the judgment or final order is presumptive
Judgment (Fajardo vs. Bayona, 98 Phil. 659). But it is the same. evidence of a right as between the parties and
The concept is similar. That is why in the 1994 case of their successors in interest by a subsequent title.
In either case, the judgment or final order may be
SALUD vs. CA – 236 SCRA 384 [1994] repelled by evidence of a want of jurisdiction,
HELD: “The rules of res judicata are of common law origin and want of notice to the party, collusion, fraud, or
they initially evolved from court decisions. It is now considered clear mistake of law or fact. (50a)
a principle of universal jurisprudence forming a part of the legal Sec. 48 is actually a law on conflict of laws - effect of foreign
system of all civilized nations.” judgment. If a judgment is rendered in U.S. and is being invoked in
the Philippines, should we honor it? Yes. So, is it conclusive? Yes.
Q: What is the FOUNDATION PRINCIPLE upon which the doctrine The law says, in case of judgment upon a specific thing, the
of res judicata rests? judgment or final order is conclusive effectively.
A: It rests from the principle that parties ought not to be
permitted to litigate the same issue more than once; that when PROBLEM: Mortverine and Mistiqla were both in the U.S. and they
a right or fact has been judicially tried and determined by a court quarreled about the ownership of a ring. They went to an American
of competent jurisdiction, or where an opportunity for such trial court. After trial, the court ruled that Mortverine is the legitimate
had been given, the judgment of the court shall be conclusive owner of the ring. The judgment became final. Subsequently both
upon the parties and those in privity with them. Otherwise, of them came to the Philippines and Mistiqla filed a case against
without this doctrine, litigation would become interminable, Mortverine to recover the same ring. Sabi ni Mortverine, “Res
rights of parties would be involved in endless confusion, courts adjudicata na ito eh, tapos na yan. Here is the decision in America.
would be stripped of their most efficient powers, and the most Therefore it is settled.”
important function of government, that of ascertaining and
enforcing rights, would go unfulfilled. (Zambales Academy vs. Q: Is A correct?
Villanueva, L-19884, May 8, 1969; People vs. Macadaeg, 91 Phil. A: YES. Under paragraph [a]. In case of a foreign judgment upon a
410; Oberiano vs. Sobremesana, L-4622, May 30, 1952; Peñalosa SPECIFIC THING, the judgment is conclusive upon the parties. Hindi
vs. Tuazon, 22 Phil. 303) puwedeng buksan. That’s already litigated abroad, merong nang
decision. We will respect it.
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Amilhamja, Adj.
Suppose the judgment is against a person. The law says it is traditionally known as collateral estoppel and in modern
presumptive evidence of a right as between the parties. terminology it is called ISSUE PRECLUSION.
EXAMPLE: A and B were both Americans. They were married in Q: Distinguish BAR BY A FORMER JUDGMENT and
the U.S. and obtained a divorce in the states. They came to the CONCLUSIVENESS OF JUDGMENT.
Philippines. The issue is whether the marriage was validly A: The following are the distinctions:
terminated. According to one party, “Yes, meron man tayong 1) As to Effect: If you analyze paragraph [b], there are two
divorce ba.” Is the decree of divorce abroad involving these judgments – in BAR BY A FORMER JUDGMENT, the first judgment
American couple allowed in the Philippines considering we have constitute an absolute bar to all matters directly adjudged as well
no divorce here? That is their law. It is presumptive evidence of as matters that might have been adjudged; whereas
a right of the parties. In CONCLUSIVENESS OF JUDGMENT, the first judgment is
conclusive only on matters actually litigated and adjudged in the
EXAMPLE: H and W are Philippine citizens. They went abroad first action under paragraph [c].
and somehow able to get a divorce in an American court which 2) As to the Requisites: In BAR BY A FORMER JUDGMENT, there
became final. They came back here. Will the Philippine court must be identity of parties, subject matter, and cause of action; but
honor the divorce? Here, the judgment may be repelled by want In CONCLUSIVENESS OF JUDGMENT, even if there is identity of
of jurisdiction of the American court, etc. The judgment is parties or subject matter, it is not necessary that there is identity
presumed to be valid unless you can attack by showing lack of of causes of action.
jurisdiction.
Of course, for purposes of the bar exams, that kind of answer will
What is the principle in private international law? A judgment of suffice but mas maganda if there is illustration: Kung bar by prior
divorce rendered by an American court between 2 Filipinos is judgment – the first judgment is res adjudicata to the second or
null and void. Why? The American court never acquired matters that have been adjudged and matters that could have been
jurisdiction over the status of the parties (because they are not adjudged in relation thereto.
U.S. citizens). But judgment in personam is honored here except
when there is want of jurisdiction, want of notice to the party, EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim.
collusion, fraud, or clear mistake of law or fact. I filed a case against you for recovery of land. Meron ka pa lang
claim sa akin for reimbursement for necessary expenses. It must be
Q: How do you enforce a foreign judgment? set-up in the main action otherwise it is barred forever. But you did
A: The usual procedure, you file a case against the same not set it up and then afterwards, you file a case against me for
defendant here and the cause of action is enforcement of a reimbursement for necessary expenses, I will move to dismiss. Your
foreign judgment. And then the Philippine court will render a claim is already barred because you should have raised it as a
judgment enforcing it and then you can execute. compulsory counterclaim in the first action. The barring of the
counterclaim is considered as the application of res adjudicata by
The SC commented on the enforcement of a foreign judgment applying the concept of bar by a former judgment.
in the Philippines in the case of
PHILSEC vs. CA – June 19, 1997 EXAMPLE of Conclusiveness of Judgment: The debtor borrows from
HELD: “While this court has given the effect of res judicata to the creditor P3 million payable in 3 installments without any
foreign judgments in several cases, it was after the parties acceleration clause. When the first installment fell due the creditor
opposed to the judgment had been given ample opportunity to sue the debtor and the debtor raised the defense of forgery, “That
repel them on grounds allowed under the law. It is not necessary the promissory note is forged and as an alternative defense
for this purpose to initiate a separate action or proceeding for assuming that the promissory note is valid, the first installment was
enforcement of the foreign judgment. What is essential is that already extinguished by payment.” After trial, the court decided
there is opportunity to challenge the foreign judgment, in order against the defendant. Tapos na. Now, the second installment fell
for the court to properly determine its efficacy. This is because due. It is another cause of action. Now, here comes the plaintiff
in this jurisdiction, with respect to actions in personam, as filing the case to collect the second installment.
distinguished from actions in rem, a foreign judgment merely
constitutes prima facie evidence of the justness of the claim of a Q: Can the debtor raise again, in the second case, the defense of
party and, as such, is subject to proof to the contrary.” FORGERY of the promissory note?
A: NO. Tapos na yan. We have already decided that the promissory
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF note was genuine and that there was no forgery. This is the same
JUDGMENT promissory note that we are talking about. So, in other words, the
If you have read the questionnaire in Remedial Law last issue of forgery is already adjudged in the first case and therefore
September (1997), one of the questions asked by the examiner res adjudicata in the second installment.
is: Distinguish the concept of BAR BY A FORMER JUDGMENT and
the concept of CONCLUSIVENESS OF JUDGMENT. Q: Can the debtor raise the defense of PAYMENT, that the second
The two concepts are found in Section 47. The concept of bar by installment is already paid or is it also barred?
a former judgment is in paragraph [b] and conclusiveness of A: YES, because in the first case what was resolved was whether
judgment is in paragraph [c]. These are two parts of the res the first installment is paid. The judgment is already conclusive on
adjudicata rule. matters directly adjudged but not to matters which have not been
adjudged. The issue on whether the second or third installment
The two concepts were discussed by the SC in the case of SALUD: have already been paid was never adjudged in the first case. That
The concept of Bar By A Former Judgment is known in traditional is the application. Take note that there is no identity of cause of
terminology as merger or bar; and in modern terminology, it is action.
called CLAIM PRECLUSION; while Conclusiveness Of Judgment is
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Amilhamja, Adj.
Another example of Conclusiveness of Judgment was the ruling

in the case
CARANDANG vs. VENTURANZA – 133 SCRA 344 [1984]
FACTS: This involves a conflict between two brothers, B1 and B2.
There is already bad blood between them because according to
B1, B2 appropriated all the properties of their parents. So there
was this threat from B1 to sue B2 to recover his share.
So B2 consulted his friend X. X suggested that B2 enters into a
simulated sale with X. B2 sold his property to X. As expected, B1
filed a case against both of them to annul or rescind the action.
Unfortunately, B1 has never proved that the sale was simulated.
The case was dismissed.
Then later B1 died. After that, B2 said to X, “Isauli mo na sa akin

ang mga properties ko.” X said, “What are you talking about? I
already bought it from you, akin na ito!” B2 filed a case against
X. The defense of X is res adjudicata.
HELD: There is NO res adjudicata. In the first place, one of the
elements of res adjudicata is identity of parties. Of course, both
of them are also parties of the first case but they were not
adverse to each other. They were co-defendants in the first case.
Res adjudicata is only applicable between adverse parties in the
former suit and not between parties. Co-parties for the
judgment therein ordinarily settle claims as to their relative
rights and liabilities as co-plaintiffs or co-defendants per se.
But the second reason is, the cause of action is completely
different and therefore the judgment in the first case is
conclusive only insofar as the right of B1 is concerned. It cannot
be conclusive as to the rights of B2 and X because it is a separate
cause of action.
Another was the 1993 case of

VDA FISH BROKER vs. NLRC – 228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of
service incentive leave, COLA, 13th month pay, holiday pay, is
dismissed based on the finding that no employer-employee
relationship existed between the complainant and the
respondent. The ruling became final.
Subsequently, the same complainants filed another case against
the same respondent for reinstatement due to illegal dismissal.
(How can you file for reinstatement na wala man kayong ER-EE
relationship in the first case???)
ISSUE: Is the finding of no ER-EE relationship in the first case res
adjudicata to the second case for illegal termination?
HELD: YES. “The issue of employer-employee relationship is
crucial in the determination of the rights of the parties in both
cases. Res adjudicata applies even when the cause of action is
not similar under the concept of conclusiveness of judgment.
The ruling in the first case that there is no Employer-Employee
relationship between the parties is conclusive in subsequent
cases although the cause of action is not the same.”
“If were we to ignore the principle of res judicata, an absurd
situation would arise where the same administrative agency
would have diametrically opposed conclusions based on
apparently similar circumstances.” This is what will happen - for
the second case, there is ER-EE relationship. It is the same
agency which said there is none in the first case. Conflict!
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Amilhamja, Adj.
APPEALS 4) A subsequent case similarly held that a party is not ALLOWED

TO QUESTION THE DECISION ON THE MERITS AND ALSO INVOKE
1. Remedies after Judgment became final and executory THE EXTRAORDINARY REMEDY OF CERTIORARI UNDER Rule 65
1. Petition for relief from judgment (Rule 38) and an ordinary appeal under Rule 41 cannot be allowed since
2. Annulment of Judgment (Rule 47) one remedy would necessarily cancel out the other (Manacap vs.
3. Certiorari (Rule 65) Equitable-PCI Bank, 468 SCRA 256).
5) An appeal may be taken only from judgments or final orders
C. Appeal that completely disposes of the case (Sec. 1 R 41). An
-What may be appealed? interlocutory order is not appealable until after the finality of the
a. Judgment judgment on the merits.
b. Final Order
-Order
a. final
b. Interlocutory- cannot be subject of an appeal
Rule 40-speaks of how decision of first level courts may be

appealed
>decision of MTC, MCTC, MTCC, METC ? You appeal to RTC- can
be appealed by/ Remedy is Ordinary appeal either by a) notice
of appeal or b) record on appeal
Rule 41 and 42
>Decision of RTC? You appeal to the CA in different capacity
a) Ordinary Appeal;
b) In the exercise of its appellate jurisdiction – petition for
review under ruler 42
Rule 43
>Governs the decision of administrative body exercising quasi
judicial functions to CA
a) Petition for Review
Rule 45
>RTC to SC; CA to SC
-appeal to Pure question of law
a) RTC to SC – through petition for review on certiorari (45)
b) CA to SC- 45
c) Sandiganbayan to SC – 45
d) CTA en banc to SC- 45
APPEAL – The law on appeal starts from Rule 40 to Rule 56.
Usually the appeal is from the trial court to the next higher
court. Under the judiciary law, appeals from the MTC should be
to the RTC which is governed by Rule 40. And when the case is
tried by the RTC and you want to appeal, normally, the appeal
should be to the CA under Rule 41.
General principles on appeal

1) The right to appeal is not part of due process but a mere
statutory privilege that has to be exercised only in the manner
and in accordance with the provisions of law.(Stolt- Nielsen vs.
NLRC GR No. 147623, December 13, 2005)
2) The right to appeal is not a constitutional right or a natural
right (Canton vs. City of Cebu GR No. 152898, February 12,
2007).
3) The general rule is that the remedy to obtain reversal or
modification of judgment on the merits is appeal. This is true
even if the errors, ascribed to the court rendering the
judgment, is its lack of jurisdiction over the subject matter, or
the exercise of power in excess thereof, or grave ABUSE OF
DISCRETION IN THE FINDINGS OF FACTS OR OF LAW SET OUT IN
THE DECISION (Association of Integrated Security Force of
Bislig-ALU vs. CA GR No. 140150 August 22, 2005).
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Amilhamja, Adj.
RULE 40 - The appeal is taken by filing a notice of appeal with the court
Appeal From Municipal Trial Courts to the that rendered the judgment or final order appealed from. The
Regional Trial Courts notice of appeal shall indicate the parties to the appeal, the
judgment or final order or part thereof appealed from, and state
the material dates showing the timeliness of the appeal.
Section 1. Where to appeal. — An appeal from -A record on appeal shall be required only in special proceedings
a judgment or final order of a Municipal Trial and in other cases of multiple or separate appeals (Sec. 3, Rule
Court may be taken to the Regional Trial Court 40).
exercising jurisdiction over the area to which
the former pertains. The title of the case shall Section 4. Perfection of appeal; effect thereof. —
remain as it was in the court of origin, but the The perfection of the appeal and the effect
party appealing the case shall be further thereof shall be governed by the provisions of
referred to as the appellant and the adverse section 9, Rule 41.
party as the appellee. (a)
Section 9, Rule 41
Rule 40- governs the decision Appeal from MTC to RTC -Notice of appeal: Reqs to perfection:
1. A party's appeal by notice of appeal is deemed perfected as to
Where to appeal him upon the filing of the notice of appeal in due time.
An appeal from a judgment or final order of a Municipal Trial 2. -Another requirement is to PAY APPEAL FEE in due time
Court may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains. -Record on appeal: Reqs to perfection:
(Section 1) 1. A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the approval
Section 2. When to appeal. — An appeal may of the record on appeal filed in due time.
be taken within fifteen (15) days after notice to 2. -Another requirement is to PAY APPEAL FEE in due time
the appellant of the judgment or final order -If you file your appeal within the reglementary period, then your
appealed from. Where a record on appeal is appeal is perfected
required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) Effect of perfection of an appeal
days after notice of the judgment or final order. 1. In appeals by notice of appeal, the court loses jurisdiction over
The period of appeal shall be interrupted by a the case upon the perfection of the appeals filed in due time and
timely motion for new trial or reconsideration. the expiration of the time to appeal of the other parties.
No motion for extension of time to file a motion 2. In appeals by record on appeal, the court loses jurisdiction only
for new trial or reconsideration shall be over the subject matter thereof upon the approval of the records
allowed. (n) on appeal filed in due time and the expiration of the time to
appeal of the other parties (Sec. 9, Rule 41).
When to appeal Q: When will the quort a quo lose jurisdiction in case there is an
-15 days appeal?
-30 days A: Upon the perfection of an appeal by the appellant and the
An appeal may be taken within fifteen (15) days after notice to expiration of the time to appeal by the other party BUT NOTE that
the appellant of the judgment or final order appealed from. the court can still exercise Residual jurisdiction so long as the
Where a record on appeal is required, the appellant shall file a records of the case is with the court a quo.
notice of appeal and a record on appeal within thirty (30) days
after notice of the judgment or final order. (Section 2).
Court’s Residual Jurisdiction
-Prior to the transmittal of the original record or the record on
Section 3. How to appeal. — The appeal is taken appeal, the court may issue orders for the protection and
by filing a notice of appeal with the court that preservation of the rights of the parties which do not involve any
rendered the judgment or final order appealed matter litigated by the appeal, approve compromises, permit
from. The notice of appeal shall indicate the appeals of indigent litigants, order execution pending appeal in
parties to the appeal, the judgment or final accordance with Section 2 of Rule 39, and allow withdrawal of the
order or part thereof appealed from, and state appeal (Sec. 9, Rule 41).
the material dates showing the timeliness of -Records of the case should be in the quort a quo
the appeal.
A record on appeal shall be required only in Section 5. Appellate court docket and other lawful
special proceedings and in other cases of fees. — Within the period for taking an appeal, the
multiple or separate appeals. appellant shall pay to the clerk of the court which
The form and contents of the record on appeal rendered the judgment or final order appealed
shall be as provided in section 6, Rule 41. from the full amount of the appellate court docket
Copies of the notice of appeal, and the record and other lawful fees. Proof of payment thereof
on appeal where required, shall be served on shall be transmitted to the appellate court
the adverse party. (n) together with the original record or the record on
appeal, as the case may be. (n)
How to appeal
-By filing a notice for appeal or record on appeal
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Section 6. Duty of the clerk of court. — Within Appeal from Orders Dismissing Case Without Trial; Lack of
fifteen (15) days from the perfection of the Jurisdiction
appeal, the clerk of court or the branch clerk of --If an appeal is taken from an order of the lower court dismissing
court of the lower court shall transmit the the case without a trial on the merits, the Regional Trial Court
original record or the record on appeal, may affirm or reverse it, as the case may be.
together with the transcripts and exhibits, --In case of affirmance and the ground of dismissal is lack of
which he shall certify as complete, to the jurisdiction over the subject matter, the Regional Trial Court, if it
proper Regional Trial Court. A copy of his letter has jurisdiction thereover, shall try the case on the merits as if the
of transmittal of the records to the appellate case was originally filed with it. In case of reversal, the case shall
court shall be furnished the parties. (n) be remanded for further proceedings (Sec. 8, Rule 40).
Section 7. Procedure in the Regional Trial Court. i.e. plaintiff filed before the MTC a collection of sum of money in
— the amount of 500,000php. Does the MTC have jurisdiction? NO.
(a) Upon receipt of the complete record or the Defendant filed a motion to dismiss and it was granted. Plaintiff
record on appeal, the clerk of court of the filed an appeal from decision of MTC. RTC said, dismissal is correct
Regional Trial Court shall notify the parties of but RTC will not remand the case but he will try the case as if it
such fact. was originally filed to it.
(b) Within fifteen (15) days from such notice, it
shall be the duty of the appellant to submit a Appeal from Orders Dismissing Case Without Trial; Lack of
memorandum which shall briefly discuss the Jurisdiction
errors imputed to the lower court, a copy of --If the case was tried on the merits by the lower court without
which shall be furnished by him to the adverse jurisdiction over the subject matter, the Regional Trial Court on
party. Within fifteen (15) days from receipt of appeal shall not dismiss the case if it has original jurisdiction
the appellant's memorandum, the appellee thereof, but shall decide the case in accordance with the
may file his memorandum. Failure of the preceding section, without prejudice to the admission of
appellant to file a memorandum shall be a amended pleadings and additional evidence in the interest of
ground for dismissal of the appeal. justice. (Sec. 8, Rule 40)
(c) Upon the filing of the memorandum of the
appellee, or the expiration of the period to do
so, the case shall be considered submitted for Section 9. Applicability of Rule 41. — The other
decision. The Regional Trial Court shall decide provisions of Rule 41 shall apply to appeals
the case on the basis of the entire record of the provided for herein insofar as they are not
proceedings had in the court of original and inconsistent with or may serve to supplement the
such memoranda as are filed. (n) provisions of this Rule. (n)
Procedure in RTC in appeal from MTC PROBLEM: The MTC proceeded with the trial on the merits
a. Notify the parties upon receipt of the complete records despite having no jurisdiction over the subject matter. The
from MTC decision was appealed. Should the RTC dismiss the case?
b. Within 15 days from receipt, appellant shall file appellant’s
memorandum. Appellee from receipt thereof shall file within ANSWER: NO. Sec. 8, Rule 40: The Regional Trial Court on appeal
15 days, Appellee’s memorandum. shall not dismiss the case if it has original jurisdiction thereof, but
c. Submitted for decision. shall decide the case in accordance with the preceding section,
without prejudice to the admission of amended pleadings and
Section 8. Appeal from orders dismissing case additional evidence in the interest of justice.
without trial; lack of jurisdiction. — If an appeal
is taken from an order of the lower court
dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or
reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack
of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if
the case was originally filed with it. In case of
reversal, the case shall be remanded for further
proceedings.
If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the Regional Trial Court on appeal shall
not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance
with the preceding section, without prejudice
to the admission of amended pleadings and
additional evidence in the interest of justice. (n)
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RULE 41 -As of December 27, 2007, an aggrieved party may no longer

Appeal From The Regional Trial Courts assail an order denying a motion for new trial or motion for
reconsideration by way of Rule 65, as per A.M. No. 07-7-12-SC,
Rule 41 such ground having been removed from the enumeration in Sec. 1
Appeal from RTC of Rule 41. The proper remedy is to appeal from the judgment
Modes of Appeal (Sec. 2) pursuant to Sec. 9, Rule 37.
a. Ordinary appeal – Rule 41
b. Petition for review – Rule 42 Judgments or Orders not appealable:
c. Appeal by certiorari – Rule 45 -REMEDY:
-Section 1, Rule 41
-In all the above instances where the judgment or final order is
Section 1. Subject of appeal. — An appeal may not appealable, the aggrieved party may file an appropriate
be taken from a judgment or final order that special civil action under Rule 65.
completely disposes of the case, or of a
particular matter therein when declared by Q: What orders or judgment are subject to appeal?
these Rules to be appealable. A: Only FINAL judgments or orders can be appealed as
No appeal may be taken from: distinguished from interlocutory judgments or orders (paragraph
(a) An order denying a motion for new trial or [c])which are not appealable.
reconsideration; NOTE: If appeal is available, certiorari under Rule 65 cannot be
(b) An order denying a petition for relief or any available!!
similar motion seeking relief from judgment;
(c) An interlocutory order; FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2)
(d) An order disallowing or dismissing an possible meanings in Civil Procedure:
appeal; [1] The judgment is final in the sense that it is already executory
(e) An order denying a motion to set aside a and that happens if there is no appeal. And that is for purposes of
judgment by consent, confession or applying Rule 39 on execution.
compromise on the ground of fraud, mistake or [2] The judgment is final in the sense that it is not merely
duress, or any other ground vitiating consent; interlocutory and this is for the purpose of applying the law on
(f) An order of execution; appeal under Rule 41. In other words, a final order or judgment
(g) A judgment or final order for or against one (for purposes of appeal) is one which is not merely interlocutory
or more of several parties or in separate claims, in the sense that it completely disposes of the case or a particular
counterclaims, cross-claims and third-party matter therein where there is nothing more for the court to do
complaints, while the main case is pending, after its rendition. (Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
unless the court allows an appeal therefrom;
and Q: What is the definition of a final judgment or for purpose of
(h) An order dismissing an action without appeal?
prejudice. A: A judgment or order is final if it disposes of the pending action
In all the above instances where the judgment so that nothing more can be done in the trial court with respect to
or final order is not appealable, the aggrieved its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962;
party may file an appropriate special civil action Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
under Rule 65. (n)
Q: On the other hand, what is an interlocutory judgment or order?
*Judgments or Order Not appealable (Rule 41, Sec. 1) A: An interlocutory order is something which does not completely
1. An order denying a motion for new trial or dispose of the action and there is still something for the court to
reconsideration; do after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238;
2. An order denying a petition for relief or any similar Restauro vs. Fabrica, 80 Phil. 762) Actually, the law does not
motion seeking relief from judgment; prohibit a party from appealing an interlocutory judgment or
3. An interlocutory order; order, only you cannot appeal immediately. (Abesamis vs. Garcia,
4. An order disallowing or dismissing an appeal 98 Phil. 762)
5. An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of Q: What is the test for determining whether a judgment or order
fraud, mistake or duress, or any other ground vitiating is final or interlocutory?
consent; A: The test for the determination of whether a judgment or order
6. An order of execution; is final or interlocutory is this: Does it leave something to be done
7. A judgment or final order for or against one or more in the trial court with respect to the merits of the case? If it does,
of several parties or in separate claims, it is interlocutory, hence, you cannot appeal yet; if it does not, it is
counterclaims, cross-claims and third-party final and therefore you can appeal. (Reyes vs. De Leon, L-3720,
complaints, while the main case is pending, unless the June 24, 1952)
court allows an appeal therefrom; and
8. An order dismissing an action without prejudice – So you must know the meanings of the word ‘final’ in civil
most important!!! procedure to avoid confusion. A good example is Section 20 of
=Because the remedy is not appeal but Petition for Rule 3 where the word ‘final’ was first mentioned:
certiorari (Rule 65) Rule 3, Sec. 20. Action on contractual money claims. - When the
action is for recovery of money arising from contract, express or
Please take NOTE: implied, and the defendant dies before entry of final judgment in
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the court in which the action was pending at the time of such denying such motion? Yes but what the SC is trying saying is that,
death, it shall not be dismissed but shall instead be allowed to as far as X’s right is concerned, the court has nothing to do
continue until entry of final judgment. A favorable judgment anymore. Marami pa akong trabaho dito (case between A and B),
obtained by the plaintiff therein shall be enforced in the pero kay X wala na. That is why the order denying the motion to
manner especially provided in these Rules for prosecuting intervene is a final order and is appealable. Kaya nga the test that
claims against the estate of a deceased person. (21a) there is nothing more for the court to do is very confusing. In
The word final here in Section 20 refers to the second meaning other words, you divide the case into parts.
that the judgment is final in the sense that it is not merely
interlocutory DAY vs. RTC OF ZAMBOANGA CITY – 191 SCRA 640
HELD: “An order which decides an issue or issues in a complaint is
BAR QUESTION: Plaintiff vs. Defendant. Defendant files a final and appealable, although the other issue or issues have not
motion to dismiss under Rule 16. The court granted the motion been resolved, if the latter issues are distinct and separate from
and consequently ordered the dismissal of the complaint of the the others.”
plaintiff. Can the plaintiff appeal from the order dismissing his
complaint?
Section 2. Modes of appeal. —
A: We will apply the test: Is there anything more for the court (a) Ordinary appeal. — The appeal to the Court of
to do after issuing the order of dismissal? Wala na! [Awanen!] Appeals in cases decided by the Regional Trial
Ano pa ba ang gagawin eh na-dismiss na nga eh! Therefore, the Court in the exercise of its original jurisdiction
order of dismissal is a final order – it has completely disposed shall be taken by filing a notice of appeal with the
of the case – hence, the plaintiff can appeal. court which rendered the judgment or final order
PROBLEM: Let’s modify the problem: Plaintiff vs. Defendant. appealed from and serving a copy thereof upon
Defendant files a motion to dismiss under Rule 16. The court the adverse party. No record on appeal shall be
denied the motion to dismiss. Can the defendant appeal from required except in special proceedings and other
the order of the court denying his motion to dismiss? cases of multiple or separate appeals where law
A: Again, we will apply the test: Is there anything more for the on these Rules so require. In such cases, the record
court to do after denying the motion to dismiss of the on appeal shall be filed and served in like manner.
defendant? Yes because after the court denies such motion, (b) Petition for review. — The appeal to the Court
the defendant will now file his answer, then there will be pre- of Appeals in cases decided by the Regional Trial
trial, trial, judgment. Meaning, after denying the motion to Court in the exercise of its appellate jurisdiction
dismiss, may trabaho pa ako. Therefore, the order denying the shall be by petition for review in accordance with
motion to dismiss is interlocutory, hence the defendant cannot Rule 42.
appeal. (c) Appeal by certiorari. — In all cases where only
questions of law are raised or involved, the appeal
Q: So how do you appeal from an interlocutory order? shall be to the Supreme Court by petition for
A: The procedure if there is an order which is against you but it review on certiorari in accordance with the Rule
is not appealable, you have to wait. The case is to be tried and 45. (n)
then you have to wait for the final judgment to be rendered
and if you are dissatisfied with the judgment, that is the time Section 3. Period of ordinary appeal. — The appeal
you appeal from the said judgment together with the shall be taken within fifteen (15) days from notice
interlocutory orders issued in the course of the proceeding. of the judgment or final order appealed from.
(Mapua vs. Suburban Theaters, Inc., 81 Phil. 311) So there Where a record on appeal is required, the
should only be one appeal form that case. That’s why, as a appellant shall file a notice of appeal and a record
general rule, the law on Civil Procedure prohibits more that on appeal within thirty (30) days from notice of
one appeal in one civil action. the judgment or final order.
The reasons why interlocutory orders are not appealable are to
avoid multiple appeals in one civil case since the order is The period of appeal shall be interrupted by a
interlocutory and the court still continues to try the case in the timely motion for new trial or reconsideration. No
course of the proceeding, the court will realize its error and the motion for extension of time to file a motion for
court may change its order so it will be given an opportunity to new trial or reconsideration shall be allowed. (n)
corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil.
147) Section 4. Appellate court docket and other lawful
fees. — Within the period for taking an appeal, the
Take note of the new rule saying that a judgment or order is appellant shall pay to the clerk of the court which
final if it disposes of the case or of a PARTICULAR MATTER. So, rendered the judgment or final order appealed
it is not necessarily the whole case. from, the full amount of the appellate court
docket and other lawful fees. Proof of payment of
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A said fees shall be transmitted to the appellate
against B, X filed a motion to intervene and it was denied. Can court together with the original record or the
X appeal the denial? Now, it would seem that the order is record on appeal. (n)
interlocutory because the court, after denying the motion to
intervene, still has something to do since the case between A
and B will continue. But according to the SC, YES, X can appeal
because the order denying the motion to intervene is final.
But is it not true that the court has something to do after
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Section 5. Notice of appeal. — The notice of defendant’s demise for the action survived (partition, eh). The
appeal shall indicate the parties to the appeal, decision is binding and enforceable against the successor-in-
specify the judgment or final order or part interest of the deceased litigant by title subsequent to the
thereof appealed from, specify the court to commencement of the action pursuant to Section 47 [b] of Rule
which the appeal is being taken, and state the 39—Rule on Res Judicata.
material dates showing the timeliness of the
appeal. (4a) Now, in our outline in appeal, the general rule is when you appeal,
you only file a notice of appeal and you pay the docket. The
Ano ba ang nakalagay sa notice of appeal? It’s very clear there important requirement there is notice of appeal but, we said in
that you indicate the parties to the appeal, specify the some cases, aside from notice of appeal, there is a second
judgment and state the material date showing the timeliness of requirement which is the RECORD ON APPEAL.
the appeal.
This time, the period to appeal is not only 15 but 30 days and a
Do you know how to do it? It’s very simple. The defendant record on appeal is only required in special proceedings or in civil
merely says; Defendant hereby serves notice that he is cases where multiple appeals are allowed. Never mind special
appealing to the CA on questions of fact or on questions of fact proceedings, saka na ‘yun. It sounds strange because what we’ve
and law the judgment of the Honorable Court (RTC) dated studied so far, multiple appeals are not allowed in civil cases,
December 20, 1997, copy of which was received by me on there should only be one appeal. Kaya nga interlocutory orders
January 5, 1998.” So it is simple that only 15 days is required to are not appealable, precisely to avoid order on appeal in a civil
file the notice. When the law says the period to file an appeal is case. We will explain this later.
non-extendible, that is fair. I do not need 15 days to prepare
the notice of appeal. You can do it only in two minutes. [sobra Section 6. Record on appeal; form and contents
pa sa quicky!!] thereof. — The full names of all the parties to the
proceedings shall be stated in the caption of the
So you must state the date when you received because the record on appeal and it shall include the judgment
computation of the 15-day period is from the receipt of the or final order from which the appeal is taken and,
judgment and NOT from the date of the judgment. This is the in chronological order, copies of only such
so- called the MATERAL DATA RULE – material dates showing pleadings, petitions, motions and all interlocutory
timeliness of appeal. The date received and the date of orders as are related to the appealed judgment or
decision are not the same. Both dates must be included in the final order for the proper understanding of the
notice of appeal. issue involved, together with such data as will
show that the appeal was perfected on time. If an
Now, kung sabihin mo na I am appealing from the judgment of issue of fact is to be raised on appeal, the record
the court dated December 20, 1997, and hindi mo sinabi kung on appeal shall include by reference all the
kailan mo natanggap, the presumption is you also received the evidence, testimonial and documentary, taken
copy of the judgment on December 20, 1997. And then you are upon the issue involved. The reference shall
appealing today, it will be dismissed because you did not state specify the documentary evidence by the exhibit
the material dates. numbers or letters by which it was identified
when admitted or offered at the hearing, and the
And of course, there is one SC decision which said that you do testimonial evidence by the names of the
not only specify the final judgment or order, but you also corresponding witnesses. If the whole testimonial
specify as much as possible the interlocutory orders from and documentary evidence in the case is to be
where you are appealing because interlocutory orders can only included, a statement to that effect will be
be appealed at this time. So, isabay mo na rin, i-one time ba! sufficient without mentioning the names of the
In the case of witnesses or the numbers or letters of exhibits.
Every record on appeal exceeding twenty (20)
HEIRS OF MAXIMO RIGOSO vs. CA – 211 SCRA 348 pages must contain a subject index. (6a)
FACTS: Plaintiff filed an action against defendant for partition
of property. While the action was pending, defendant died. A record on appeal is simply a reproduction of all the pleadings
Partition is an action which survives. Defendant’s lawyer failed filed by the parties, all the motions filed by the parties, all the
to inform the court about plaintiff’s death (it is the lawyer’s orders issued by the court and the final judgment rendered by the
duty which he did not do). So with that, there was no proper court arranged in chronological order.
substitution. Later, judgment was rendered against the For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on
deceased defendant. But after the decision came out, the appeal. Normally, it starts with this phrase—
lawyer of the defendant filed a notice of appeal in accordance “Be it remembered the following proceedings took place in the
with Rule 41. court below:
ISSUE #1: Was the appeal properly made? Par. 1. On January 5, 1998, plaintiff filed a complaint against
HELD: NO. Upon the death of the defendant, the lawyer’s defendant as follows: -- (so kopyahin mo ‘yung complaint.
authority to represent him already expired. There was an Practically it is mechanical work, eh.)
automatic expiration of the lawyer-client relationship. The Par. 2. On January 25, 1998, defendant filed an answer –
notice of appeal which the lawyer filed in behalf of the (kopyahin mo ang answer)
deceased was an unauthorized pleading, therefore not valid. Par. 3. On March 5, 1998, the court rendered judgment –
ISSUE #2: Is the judgment binding to the defendant’s heirs (kopyahin mo na naman.)”
(remember, they were not substituted)?
HELD: YES. The validity of the judgment was not affected by the How long? Gaano kakapal yan? Depende. For example, the case
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lasted for more than two years. So practically, the record on decision. Q: Why is it that in ordinary civil cases, normally a record
appeal may amount to hundreds of pages. That is why the on appeal is not required?
period to appeal is increased from 15 to 30 if the law requires a A: Ordinarily, when the case is over and you say that you are
record on appeal because of the possibility that you may not be appealing, the entire record of the case will be elevated to the CA.
able to complete everything within 15 days. Sometimes the 30- But in the case of BIÑAN, there is judgment against landowner A
day period can be extended. and he wants to appeal, the record cannot be brought to the CA
Q: Do you have to include there every motion, every order of because the case will still be tried with respect to landowners B, C
the case? and D. So for the CA to know what happened, a record on appeal
A: No, the law says you reproduce in chronological order copies is needed.
of only such pleadings, motions, petitions, and all interlocutory
orders as are related to the appealed judgment or final order ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. CA – 258 SCRA
for the proper understanding of the issues involved. This is to 186 [1996]
allow the appellate court to review the order appealed from. HELD: Multiple appeals are allowed in:
1) Special proceedings;
But there are some motions na hindi na kailangan. For 2) Actions for recovery of property with accounting;
example, the case will be set for trial next week. Sabi ng 3) Actions for partition of property with accounting;
defendant, “Motion to postpone, I am not ready because I am 4) Special civil actions of eminent domain
suffering from diarrhea.” So the trial was postponed. Kailangan (expropriation);
pa bang ilagay ang motion na yan? That is not necessary to 5) Special civil actions for foreclosure of mortgage.
understand the issue. Piliin mo lang ang importante. “The rationale behind allowing more than one appeal in the same
case is to enable the rest of the case to proceed in the event that
Now, bakit kailangan ‘yang record on appeal? Bakit sa ordinary a separate and distinct case is resolved by the court and held to
appeal, hindi man kailangan? Because in Ordinary Civil Actions, be final.”
when the appeal is perfected, the clerk of court of the RTC
transmits the entire record to the CA. So andoon na lahat yan. The enumeration cited in ROMAN CATHOLIC CASE is taken from
But in special proceedings or in civil cases where multiple the ruling of the SC in the cases of MIRANDA vs. CA (71 SCRA 295)
appeals are allowed, when an order or judgment is rendered, and DE GUZMAN vs. CA (74 SCRA 222). In these cases, when you
the case continues pa. So, the records are not yet elevated. So, file only a notice of appeal without the record on appeal, it will
how can the CA understand what happened without the not suffice. So it will be dismissed.
records? That is called the record on appeal.
Q: What if the party filed a record on appeal without a notice of
Q: Give an example of a civil action where multiple appeals are appeal? Should the appeal be dismissed?
allowed. A: NO, the appeal will not be dismissed because the filing of the
A: Section 4 of Rule 36, where several judgments will be record on appeal is harder to comply with than the filing of a
rendered in one case: notice of appeal. The filing of the record on appeal is more
RULE 36, Sec. 4. Several judgments - In an action against expressive of the desire of the party to appeal. (Peralta vs. Solon,
several defendants, the court may, when several judgment is 77 Phil. 610)
proper, render judgment against one or more of them, leaving
the action to proceed against the others. (4) Section 7. Approval of record on appeal. — Upon
And to be more specific, that rule was applied by the SC in the the filing of the record on appeal for approval and
case of Municipality of Binan vs. Garcia: if no objection is filed by the appellee within five
(5) days from receipt of a copy thereof, the trial
FACTS: Municipality of Binan filed expropriation cases against court may approve it as presented or upon its own
several landowners because it would like to expropriate their motion or at the instance of the appellee, may
land for public use. All of them were named as co-defendants direct its amendment by the inclusion of any
in one complaint. Landowner A filed a motion for separate trial omitted matters which are deemed essential to
(Rule 31). The court granted it. The court rendered a decision the determination of the issue of law or fact
expropriating the land of A. Nauna siya. As for the other involved in the appeal. If the trial court orders the
landowners, the case continued. amendment of the record, the appellant, within
the time limited in the order, or such extension
ISSUE #1: Can A appeal already from the decision rendered thereof as may be granted, or if no time is fixed by
against him or must he wait for the decision to be rendered the order within ten (10) days from receipt
against the other landowners? thereof, shall redraft the record by including
HELD: YES, A can now appeal because the order was already therein, in their proper chronological sequence,
final against A. There is something more for the court to do but such additional matters as the court may have
only with respect to the other defendants. But as far as A is directed him to incorporate, and shall thereupon
concerned, there is nothing more for the court to do. submit the redrafted record for approval, upon
So when the judgment is already rendered against the other notice to the appellee, in like manner as the
landowners, they can now also appeal. So there could be two original draft. (7a)
or more final judgments and two or more appeals.
Section 8. Joint record on appeal. — Where both
ISSUE #2: Suppose the case was tried against all of them (sabay parties are appellants, they may file a joint record
ba) and there was one decision against them—so sabay-sabay on appeal within the time fixed by section 3 of this
sila mag- appeal. Is record on appeal required? Rule, or that fixed by the court. (8a)
HELD: NO, only notice of appeal because there is only one
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Section 9. Perfection of appeal; effect thereof. Section 11. Transcript. — Upon the perfection of
— A party's appeal by notice of appeal is the appeal, the clerk shall immediately direct the
deemed perfected as to him upon the filing of stenographers concerned to attach to the record
the notice of appeal in due time. of the case five (5) copies of the transcripts of the
A party's appeal by record on appeal is deemed testimonial evidence referred to in the record on
perfected as to him with respect to the subject appeal. The stenographers concerned shall
matter thereof upon the approval of the record transcribe such testimonial evidence and shall
on appeal filed in due time. prepare and affix to their transcripts an index
In appeals by notice of appeal, the court loses containing the names of the witnesses and the
jurisdiction over the case upon the perfection pages wherein their testimonies are found, and a
of the appeals filed in due time and the list of the exhibits and the pages wherein each of
expiration of the time to appeal of the other them appears to have been offered and admitted
parties. or rejected by the trial court. The transcripts shall
In appeals by record on appeal, the court loses be transmitted to the clerk of the trial court who
jurisdiction only over the subject matter shall thereupon arrange the same in the order in
thereof upon the approval of the records on which the witnesses testified at the trial, and shall
appeal filed in due time and the expiration of cause the pages to be numbered consecutively.
the appeal of the other parties. (12a)
In either case, prior to the transmittal of the
original record or the record on appeal, the Section 12. Transmittal. — The clerk of the trial
court may issue orders for the protection and court shall transmit to the appellate court the
preservation of the rights of the parties which original record or the approved record on appeal
do not involve any matter litigated by the within thirty (30) days from the perfection of the
appeal, approve compromises, permit appeals appeal, together with the proof of payment of the
of indigent litigants, order execution pending appellate court docket and other lawful fees, a
appeal in accordance with 2 of Rule 39, and certified true copy of the minutes of the
allow withdrawal of the appeal. (9a) proceedings, the order of approval, the certificate
of correctness, the original documentary evidence
referred to therein, and the original and three (3)
copies of the transcripts. Copies of the transcripts
and certified true copies of the documentary
evidence shall remain in the lower court for the
examination of the parties. (11a)
Section 10. Duty of clerk of court of the lower Section 13. Dismissal of appeal. — Prior to the
court upon perfection of appeal. — Within transmittal of the original record or the record on
thirty (30) days after perfection of all the appeal to the appellate court, the trial court may
appeals in accordance with the preceding motu propio or on motion dismiss the appeal for
section, it shall be the duty of the clerk of court having been taken out of time. (14a)
of the lower court:
(a) To verify the correctness of the original Modes of Appeal
record or the record on appeal, as the case may 1. Ordinary Appeal.
be aid to make certification of its correctness; -The appeal to the Court of Appeals in cases decided by the
(b) To verify the completeness of the records Regional Trial Court in the exercise of its original jurisdiction shall
that will be, transmitted to the appellate court; be taken by filing a notice of appeal with the court which rendered
(c) If found to be incomplete, to take such the judgment or final order appealed from and serving a copy
measures as may be required to complete the thereof upon the adverse party. No record on appeal shall be
records, availing of the authority that he or the required except in special proceedings and other cases of multiple
court may exercise for this purpose; and or separate appeals where the law or these Rules so require. In
(d) To transmit the records to the appellate such cases, the record on appeal shall be filed and served in like
court. manner (Sec. 2(a), Rule 41).
If the efforts to complete the records fail, he
shall indicate in his letter of transmittal the 2. Petition for Review.
exhibits or transcripts not included in the -The appeal to the Court of Appeals in cases decided by the
records being transmitted to the appellate Regional Trial Court in the exercise of its appellate jurisdiction shall
court, the reasons for their non-transmittal, be by petition for review in accordance with Rule 42.(Sec. 2(b), Rule
and the steps taken or that could be taken to 41).
have them available.
The clerk of court shall furnish the parties with 3. Appeal by certiorari
copies of his letter of transmittal of the records -In all cases where only questions of law are raised or involved, the
to the appellate court. (10a) appeal shall be to the Supreme Court by petition for review on
certiorari in accordance with Rule 45..(Sec. 2(b), Rule 41).
Problem
- Carlito filed an unlawful detainer case against Matilde with the
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Municipal Trial Court. After due proceedings, the MTC rendered Section 2 of Rule 39; and
a decision in favor of Matilde. Carlito appealed the decision to 5) to allow the withdrawal of the appeal.
the RTC by notice of appeal. The RTC rendered a decision in favor 6) The court can order the dismissal of an appeal under
of Carlito. Section 13, Rule 41.
-Matilde wants to appeal the decision of the RTC. Where will he Q: Can the parties settle the case amicably despite the fact that
file his appeal? And under what mode? there is already an appeal?
Answer A: Yes, compromise is welcome anytime.
-The appeal to the Court of Appeals in cases decided by the Q: Now who will approve the compromise?
Regional Trial Court in the exercise of its appellate jurisdiction A: Technically, the court has no jurisdiction. But for as long as the
shall be by petition for review in accordance with Rule 42.(Sec. records are still there, the trial court can approve the compromise.
2(b), Rule 41). Now, suppose the records are already transmitted to the CA? Then
you better submit your compromise agreement before the CA.
When to appeal
-The appeal shall be taken within fifteen (15) days from notice ***When is appeal perfected?
of the judgment or final order appealed from. 1. A party's appeal by notice of appeal is deemed perfected as to
-Where a record on appeal is required, the appellant shall file a him upon the filing of the notice of appeal in due time + payment
notice of appeal and a record on appeal within thirty (30) days of appeal fee
from notice of the judgment or final order (Sec. 3, Rule 41). 2. A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the approval
Payment of appeal fee of the record on appeal filed in due time + payment of appeal fee
-Within the period for taking an appeal, the appellant shall pay 3. In appeals by notice of appeal, the court loses jurisdiction over
to the clerk of the court which rendered the judgment or final the case upon the perfection of the appeals filed in due time and
order appealed from, the full amount of the appellate court the expiration of the time to appeal of the other parties. = residual
docket and other lawful fees. (Section 4, Rule 41) jurisdiction
-a condition sine qua non for perfection of appeal 4. In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records
Is payment of appeal fee within the period for appeal on appeal filed in due time and the expiration of the time to appeal
mandatory? of the other parties.
- The Court has consistently upheld the dismissal of an appeal or
notice of appeal for failure to pay the full docket fees within the Problem
period for taking the appeal. Time and again, this Court has - Marina filed a case against Marino before the RTC. The RTC
consistently held that the payment of docket fees within the decided in favor of Marina. Marino received the copy the decision
prescribed period is mandatory for the perfection of the appeal. on July 2. While Marina received the copy of the decision on August
Without such payment, the appellate court does not acquire 2. On July 10, Marino filed a notice of appeal and paid the
jurisdiction over the subject matter of the court does not acquire corresponding appeal fee before the RTC.
jurisdiction over the subject matter of the action and the - Does the RTC lose jurisdiction on July 10, the date when Marino
decision sought to be appealed from becomes final and filed his notice of appeal? NO! because court will only loose
executory. jurisdiction upon appeal being filed in due time and expiration of
- Fil-Estate Properties vs. Homena-Valencia October 15. 2007, period to appeal of other party
citing Manalili v. De Leon, 422 Phil. 214, 220 (2001); St. Louis - If not, when will the Court lose its jurisdiction? Upon expiration of
University v. Cordero, G.R. No. 144118, 21 July 2004, 434 SCRA the appeal of Marina
575, 583. - If the RTC jurisdiction is already lost, can it still entertain any
motion from the parties? YES! Apply doctrine of residual
Concept of Residual Jurisdiction jurisdiction
-The court may issue orders for the protection and preservation
of the rights of the parties which do not involve any matter Q: May the RTC dismiss the appeal?
litigated by the appeal, 1. approve compromises, 2. permit A: Yes, for as long as the record of the case or the record of appeal
appeals of indigent litigants, 3. order execution pending appeal has not yet been transmitted to the appellate court, the court may
in accordance with Section 2 of Rule 39, and 4. allow withdrawal motu propio, even without any motion, or on motion of the
of the appeal. appellee, the trial court is empowered to dismiss the appeal on the
- This prior to the transmittal of the records. - Section 9, Rule 41. ground of having been taken out of time.
Q: What things or what actions can the RTC do even if it has Q: Can the trial court dismiss the appeal on the ground that the
technically lost jurisdiction over the case? Sometimes they call appeal is dilatory?
this as the residual jurisdiction, a.k.a. “dukot” jurisdiction. A: NO. The trial court has no power to say that the appeal is
A: For as long as the original record or the record on appeal is dilatory. Such question can only be passed upon by the appellate
not yet transmitted (because it takes some time for the records court. Otherwise, trial courts can easily forestall review or reversal
to be transmitted) the trial court, despite the fact that it has of their decisions no matter how erroneous such decisions may be.
already lost jurisdiction, can do the following acts: (Dasalla vs. Caluag, L-18765. July 31, 1963; GSIS vs. Cloribel, L-
1) to issue orders for the protection and preservation of the 22236, June 22, 1965; Republic vs. Rodriguez, L-26056, May 29,
rights of the parties which do not involve in any matter litigated 1969) The only ground for the trial court to dismiss appeal is for
in the appeal; having been taken out of time. That’s all.
2) to approve compromises between the parties; Don’t confuse that with Rule 39.
3) to permit appeals to indigent litigants;
4) to order executions pending appeal in accordance with Q: Can the prevailing party file a motion for execution pending
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appeal, on the ground that the appeal is dilatory? Any appeal

which is frivolous is intended as dilatory.
A: Well, it’s not the appeal that is being questioned but whether
there is a ground for execution pending appeal. Ang
jurisprudence niyan magulo eh: NO, the trial court cannot do
that. Only the CA can determine whether the appeal is dilatory.
But there are cases where the SC said YES because that can be a
good reason.
Pero dito (Rule 41), iba ang tanong. The court is not being asked
to grant an execution pending appeal but being asked to dismiss
an appeal. Ah, ito talaga hindi pwede. NEVER, because of Section
13, Rule 41 – there is only one ground, filed out of time. Yaaan!
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RULE 42 agency; if there is such other action or proceeding,

Appeal From The Regional Trial Courts he must state the status of the same; and if he
Rule 42 should thereafter learn that a similar action or
Petition for review from RTC proceeding has been filed or is pending before the
a. How appeal taken-By filing a verified petition for review with Supreme Court, the Court of Appeals, or different
CA and payment of corresponding fee, copy furnished the RTC divisions thereof, or any other tribunal or agency,
and the adverse party. he undertakes to promptly inform the aforesaid
b. Period to file- The petition shall be filed and served within courts and other tribunal or agency thereof within
fifteen (15) days from notice of the decision. five (5) days therefrom. (n)
Take note of Section 2. Do not implead the lower court or the
judge because nasanay na tayo na pati ‘yung judge naging
Section 1. How appeal taken; time for filing. — defendant or respondent na. We only do that in Certiorari under
A party desiring to appeal from a decision of the Rule 65 in Special Civil Actions, but not on appeal. This is the
Regional Trial Court rendered in the exercise of influence of Justice Feria because he has penned many cases
its appellate jurisdiction may file a verified which has included the judge as defendant or respondent. So, he
petition for review with the Court of Appeals, said that in the case of MWSS vs. CA [Aug. 25, 1986], hence we
paying at the same time to the clerk of said can see his influence, siningit talaga niya iyan sa kaso na yon.
court the corresponding docket and other
lawful fees, depositing the amount of P500.00 Now, as to the form [last paragraph], there has to be a
for costs, and furnishing the Regional Trial Certification of Non-Forum Shopping, failure to comply with such
Court and the adverse party with a copy of the would mean the dismissal of the case.
petition. The petition shall be filed and served
within fifteen (15) days from notice of the ORTIZ vs. COURT OF APPEALS – 299 SCRA 708 [1998]
decision sought to be reviewed or of the denial FACTS: The certification was not signed by the Ortizes but by their
of petitioner's motion for new trial or lawyer who has personal knowledge of the fact and contended
reconsideration filed in due time after that it should be accepted as substantial compliance with the
judgment. Upon proper motion and the rules.
payment of the full amount of the docket and HELD: The certification was not proper. Strict observance of the
other lawful fees and the deposit for costs rule is required. In this case, no explanation was given.
before the expiration of the reglementary “Regrettably, We find that substantial compliance will not suffice
period, the Court of Appeals may grant an in a matter involving strict compliance. The attestation contained
additional period of fifteen (15) days only in the certification on non-forum shopping requires personal
within which to file the petition for review. No knowledge by the party who executed the same. To merit the
further extension shall be granted except for Court’s consideration, Ortizes here must show reasonable cause
the most compelling reason and in no case to for failure to personally sign the certification. The Ortizes must
exceed fifteen (15) days. (n) convince the court that the outright dismissal of the petition
would defeat the administration of justice. However, the Ortizes
Section 2. Form and contents. — The petition did not give any explanation to warrant their exemption from the
shall be filed in seven (7) legible copies, with strict application of the rule. Utter disregard of the rules cannot
the original copy intended for the court being justly be rationalized by harking on the policy of liberal
indicated as such by the petitioner, and shall (a) construction.”
state the full names of the parties to the case,
without impleading the lower courts or judges Q: Under paragraph [c], what issues can you raise in the petition
thereof either as petitioners or respondents; for review?
(b) indicate the specific material dates showing A: Errors of fact, errors of law, or both – mixed errors of fact or
that it was filed on time; (c) set forth concisely law.
a statement of the matters involved, the issues
raised, the specification of errors of fact or law, Somebody asked this QUESTION: hindi ba kapag error of law
or both, allegedly committed by the Regional dapat sa SC yan? Hindi na dadaan sa CA? How do you reconcile
Trial Court, and the reasons or arguments relied this with the Constitution? Actually, when the law says decisions
upon for the allowance of the appeal; (d) be of the RTC appealable directly to the SC, it was decided pursuant
accompanied by clearly legible duplicate to its original jurisdiction. But if it is decided pursuant to its
originals or true copies of the judgments or appellate jurisdiction, the appeal should be to the CA even on
final orders of both lower courts, certified pure questions of law without prejudice of going to the SC later
correct by the clerk of court of the Regional on.
Trial Court, the requisite number of plain copies
thereof and of the pleadings and other material Section 3. Effect of failure to comply with
portions of the record as would support the requirements. — The failure of the petitioner to
allegations of the petition. comply with any of the foregoing requirements
The petitioner shall also submit together with regarding the payment of the docket and other
the petition a certification under oath that he lawful fees, the deposit for costs, proof of service
has not theretofore commenced any other of the petition, and the contents of and the
action involving the same issues in the Supreme documents which should accompany the petition
Court, the Court of Appeals or different shall be sufficient ground for the dismissal
divisions thereof, or any other tribunal or thereof. (n)
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Section 7. Elevation of record. — Whenever the

Section 4. Action on the petition. — The Court Court of Appeals deems it necessary, it may order
of Appeals may require the respondent to file a the clerk of court of the Regional Trial Court to
comment on the petition, not a motion to elevate the original record of the case including
dismiss, within ten (10) days from notice, or the oral and documentary evidence within fifteen
dismiss the petition if it finds the same to be (15) days from notice. (n)
patently without merit, prosecuted manifestly
for delay, or that the questions raised therein Section 8. Perfection of appeal; effect thereof. —
are too insubstantial to require consideration. (a) Upon the timely filing of a petition for review
(n) and the payment of the corresponding docket and
other lawful fees, the appeal is deemed perfected
Section 5. Contents of comment. — The as to the petitioner.
comment of the respondent shall be filed in The Regional Trial Court loses jurisdiction over the
seven (7) legible copies, accompanied by case upon the perfection of the appeals filed in
certified true copies of such material portions due time and the expiration of the time to appeal
of the record referred to therein together with of the other parties.
other supporting papers and shall (a) state However, before the Court of Appeals gives due
whether or not he accepts the statement of course to the petition, the Regional Trial Court
matters involved in the petition; (b) point out may issue orders for the protection and
such insufficiencies or inaccuracies as he preservation of the rights of the parties which do
believes exist in petitioner's statement of not involve any matter litigated by the appeal,
matters involved but without repetition; and approve compromises, permit appeals of indigent
(c) state the reasons why the petition should litigants, order execution pending appeal in
not be given due course. A copy thereof shall be accordance with section 2 of Rule 39, and allow
served on the petitioner. (a) withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on
Section 6. Due course. — If upon the filing of Summary Procedure, the appeal shall stay the
the comment or such other pleadings as the judgment or final order unless the Court of
court may allow or require, or after the Appeals, the law, or these Rules shall provide
expiration of the period for the filing thereof otherwise. (a)
without such comment or pleading having been Q: Does the RTC have the power to act despite the fact that the
submitted, the Court of Appeals finds prima petition for review is already before the CA? Suppose I lost in the
facie that the lower court has committed an MTC, and I also lost on appeal in the RTC. I file a petition for
error of fact or law that will warrant a reversal review. What happens to the decision? Can the decision be
or modification of the appealed decision, it may enforced?
accordingly give due course to the petition. (n)
A: NO, it cannot be enforced yet because it is not yet final. We still
have to wait for the appeal to be dismissed or to be entertained
Q: When you file a petition for review from the RTC to the CA, and denied later. Under paragraph [b], the appeal shall stay the
is the CA obliged to entertain the petition? judgment or final order UNLESS the CA, the law or these rules
A: No, this is discretionary under Section 6. The CA may or may should provide otherwise.
not give due course to the petition unlike in ordinary appeal. Also, based on the opening clause of paragraph [b], except in civil
Yan ang kaibahan ng ordinary appeal and petition for review. cases provided in the Rules on Summary Procedure, any part
thereafter appealed to the CA will not stop the implementation of
In ordinary appeal under Rule 41, when you file notice of the RTC decision.
appeal and you pay your docket fee, your appeal is
automatically entertained. At least it will be heard by the CA. Under Section 21 of the Summary Rules, when a case is started in
But in Rule 42, it is not the same. When you go there, whether the MTC under the Summary Procedure, and appealed to the RTC
your petition for review will be given due course or not even if and decided by the RTC, the decision becomes immediately
you have paid the docket fee. Normally, the CA will required executory. Even if we file a petition for review, it is executory. The
you to comment and then chances are after another month only way to stop the RTC from enforcing that judgment is to get a
and after reading your petition and your comment, the CA will TRO or a writ of preliminary injunction from the CA. That is the
refuse to give due course to your petition, “Your petition is rule.
hereby dismissed!” So, you must convince the CA na may merit
baah! I have a similar case now on that issue. The case originated from
the MTC for ejectment. The defendant lost, akyat ngayon sa RTC,
Q: What happens when the petition for review is given due affirmed. And then akyat na naman ang defendant sa CA on
course? petition for review (although right now, it has not yet been given
A: The parties will be required to submit their respective due course) with a prayer for TRO. But the CA said that there is no
memoranda. compelling reason to issue one. In the meantime, I filed a motion
Take note that the RTC is also given the power to issue orders for execution. The defendant opposed on the ground that a
for the protection of the parties – the same as in Section 8, judgment cannot be executed daw because of a pending petition
paragraph [b]. for review. But this is under the Summary Rules – ejectment. This
is an exception, so that will not apply.
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Section 9. Submission for decision. — If the Will the filing of Petition stay the judgment or order appealed
petition is given due course, the Court of from?
Appeals may set the case for oral argument or -Yes.
require the parties to submit memoranda -Except in civil cases decided under the Rule on Summary
within a period of fifteen (15) days from notice. Procedure, the appeal shall not stay the judgment or final order
The case shall be deemed submitted for unless the Court of Appeals, the law, or these Rules shall provide
decision upon the filing of the last pleading or otherwise (Sec. 8(b), Rule 42).
memorandum required by these Rules or by
the court itself. (n)
Problem
- Marina filed a Petition for Certiorari before RTC to assail the
Order of the MTC quashing the Information. The RTC dismissed
the Petition. Marina received the decision on July 2. On July 10,
Marina filed a Petition for Review before the CA with payment
of the corresponding docket fee therein.
- Is the mode of appeal availed by Marina proper?
- Assuming that it is improper, may the Petition for Review be
treated as a notice of appeal?
Answer 1
- No. The proper remedy should be appeal.
-It is fundamental that a petition for certiorari is an original
action and, as such, it cannot be gainsaid that the RTC took
cognizance of and resolved the aforesaid petition in the
exercise of its original jurisdiction. Hence, based on the above-
cited rule, Marina should have filed a notice of appeal with the
RTC instead of a petition for review with the CA (Yalong vs.
People, GR 187174, August 28, 2013).
Answer 2
- It cannot be treated as notice of appeal.
-For one, a notice of appeal is filed with the regional trial court
that rendered the assailed decision, judgment or final order,
while a petition for review is filed with the CA. Also, a notice of
appeal is required when the RTC issues a decision, judgment or
final order in the exercise of its original jurisdiction, while a
petition for review is required when such issuance was in the
exercise of its appellate jurisdiction.(Yalong vs. People, GR
187174, August 28, 2013).
When is appeal perfected under Rule 42?

-Upon the timely filing of a petition for review and the payment
of the corresponding docket and other lawful fees, the appeal
is deemed perfected as to the petitioner (Sec. 8, Rule 42).
When will the court lose jurisdiction in Rule 42?

-The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties (Sec. 8,
Rule 42).
Residual Jurisdiction applies? YES

-The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
- However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule
39, and allow withdrawal of the appeal. (Section 8, Rule 42).
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RULE 43 before Revised Administrative Code No. 1-95. As I have told you
Appeals From the Court of Tax Appeals and before, rulings of different constitutional commissions, CSC, COA,
Quasi-Judicial Agencies to the Court of Appeals COMELEC should be direct to the SC. That is why the case of
MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned
because the new procedure is that decisions of the CSC are now
Section 1. Scope. — This Rule shall apply to appealable to the CA.
appeals from judgments or final orders of the
Court of Tax Appeals and from awards, Section 2. Cases not covered. — This Rule shall not
judgments, final orders or resolutions of or apply to judgments or final orders issued under
authorized by any quasi-judicial agency in the the Labor Code of the Philippines. (n)
exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Section 2 refers to decisions of NLRC and the Secretary of Labor.
Commission, Central Board of Assessment Their decisions can be brought directly to the SC by way of
Appeals, Securities and Exchange Commission, petition for Certiorari under Rule 65, not by appeal (Rule 43).
Office of the President, Land Registration
Authority, Social Security Commission, Civil Section 3. Where to appeal. — An appeal under
Aeronautics Board, Bureau of Patents, this Rule may be taken to the Court of Appeals
Trademarks and Technology Transfer, National within the period and in the manner herein
Electrification Administration, Energy provided, whether the appeal involves questions
Regulatory Board, National of fact, of law, or mixed questions of fact and law.
Telecommunications Commission, Department (n)
of Agrarian Reform under Republic Act No.
6657, Government Service Insurance System, Section 4. Period of appeal. — The appeal shall be
Employees Compensation Commission, taken within fifteen (15) days from notice of the
Agricultural Invention Board, Insurance award, judgment, final order or resolution, or
Commission, Philippine Atomic Energy from the date of its last publication, if publication
Commission, Board of Investments, is required by law for its effectivity, or of the
Construction Industry Arbitration Commission, denial of petitioner's motion for new trial or
and voluntary arbitrators authorized by law. (n) reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only
LEPANTO CERAMICS vs. CA – 237 SCRA 519 [1994] one (1) motion for reconsideration shall be
FACTS: This involves appeals from the Board of Investments allowed. Upon proper motion and the payment of
(BOI). Now, as provided in the original Omnibus Investment the full amount of the docket fee before the
Code of 1981 during the Marcos era, decisions of the BOI are expiration of the reglementary period, the Court
appealable directly to the SC. But years later it was nullified by of Appeals may grant an additional period of
the Judiciary Law fifteen (15) days only within which to file the
because all decisions of all quasi-judicial bodies are appealed to petition for review. No further extension shall be
the CA. granted except for the most compelling reason
Four years later the Constitution took effect. In July 1987 and in no case to exceed fifteen (15) days. (n)
during the term of Cory Aquino, she promulgated E.O. No. 226,
the so-called Omnibus Investment Code of 1987 where Section 5. How appeal taken. — Appeal shall be
provisions from the old code were merely lifted. And among taken by filing a verified petition for review in
those included is the provision on appeals from the BOI where seven (7) legible copies with the Court of Appeals,
you go directly to the SC. with proof of service of a copy thereof on the
The position of Lepanto is, the new law (E.O. No. 226) has adverse party and on the court or agency a quo.
modified BP 129 because the old law was modified by BP 129. The original copy of the petition intended for the
And since this is a new law, binalik na naman ang appeal sa SC. Court of Appeals shall be indicated as such by the
So na modify ang BP 129. petitioner.
HELD: NO. Lepanto is wrong because when Cory Aquino issued Upon the filing of the petition, the petitioner shall
E.O. No. 226, the New Constitution has taken effect. And under pay to the clerk of court of the Court of Appeals
the 1987 Constitution, you cannot increase the appellate the docketing and other lawful fees and deposit
jurisdiction of the SC without its consent and concurrence. In the sum of P500.00 for costs. Exemption from
effect, the new law (E.O. No. 226) increased the work of the SC payment of docketing and other lawful fees and
without its knowledge and consent therefore the SC did not the deposit for costs may be granted by the Court
agree. The SC rejected the provision that decisions of the BOI of Appeals upon a verified motion setting forth
are appealable directly to the SC. valid grounds therefor. If the Court of Appeals
denies the motion, the petitioner shall pay the
In the case of FABIAN vs. DESIERTO [December 16, 1998], a docketing and other lawful fees and deposit for
provision under RA 6670, which provides that decisions of the costs within fifteen (15) days from notice of the
Office of the Ombudsman in administrative disciplinary cases, denial. (n)
was declared unconstitutional because the appellate
jurisdiction of the SC was increased without its advice and
consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is
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Section 6. Contents of the petition. — The petition; otherwise, it shall dismiss the same. The
petition for review shall (a) state the full names findings of fact of the court or agency concerned,
of the parties to the case, without impleading when supported by substantial evidence, shall be
the court or agencies either as petitioners or binding on the Court of Appeals. (n)
respondents; (b) contain a concise statement of
the facts and issues involved and the grounds Section 11. Transmittal of record. — Within fifteen
relied upon for the review; (c) be accompanied (15) days from notice that the petition has been
by a clearly legible duplicate original or a given due course, the Court of Appeals may
certified true copy of the award, judgment, require the court or agency concerned to transmit
final order or resolution appealed from, the original or a legible certified true copy of the
together with certified true copies of such entire record of the proceeding under review. The
material portions of the record referred to record to be transmitted may be abridged by
therein and other supporting papers; and (d) agreement of all parties to the proceeding. The
contain a sworn certification against forum Court of Appeals may require or permit
shopping as provided in the last paragraph of subsequent correction of or addition to the
section 2, Rule 42. The petition shall state the record. (8a)
specific material dates showing that it was filed
within the period fixed herein. (2a) Section 12. Effect of appeal. — The appeal shall
not stay the award, judgment, final order or
Section 7. Effect of failure to comply with resolution sought to be reviewed unless the Court
requirements. — The failure of the petitioner to of Appeals shall direct otherwise upon such terms
comply with any of the foregoing requirements as it may deem just. (10a)
regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of Section 13. Submission for decision. — If the
service of the petition, and the contents of and petition is given due course, the Court of Appeals
the documents which should accompany the may set the case for oral argument or require the
petition shall be sufficient ground for the parties to submit memoranda within a period of
dismissal thereof. (n) fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of
Section 8. Action on the petition. — The Court the last pleading or memorandum required by
of Appeals may require the respondent to file a these Rules or by the court of Appeals. (n)
comment on the petition not a motion to
dismiss, within ten (10) days from notice, or Appeal from QJA
dismiss the petition if it finds the same to be -Scope/ What can be appealed?- Quasi Judicial Agencies’ decision
patently without merit, prosecuted manifestly in the exercise of its quasi-judicial function (Sec. 1)
for delay, or that the questions raised therein
are too unsubstantial to require consideration. Q: Can you use rule 43 if what is involved is not the exercise of the
(6a) Quasi-judicial function of the body?
A: NO
Section 9. Contents of comment. — The
comment shall be filed within ten (10) days -What power is availed? -quasi-judicial function
from notice in seven (7) legible copies and -What if you are questioning exercise of quasi-legislative function?
accompanied by clearly legible certified true What rule? Declaratory relief.
copies of such material portions of the record
referred to therein together with other -Period- 15 days from notice of decision or order appealed from.
supporting papers. The comment shall (a) point (Sec. 1)
out insufficiencies or inaccuracies in
petitioner's statement of facts and issues; and -Where to appeal- Court of Appeals. (Sec. 3)
(b) state the reasons why the petition should be
denied or dismissed. A copy thereof shall be -How appeal taken- By filing a verified petition for review. (Sec. 5)
served on the petitioner, and proof of such
service shall be filed with the Court of Appeals. -Effect of filing- Will not stay the execution of decision unless
(9a) restrained (Court issues TRO or injuction). (Sec. 12)
Section 10. Due course. — If upon the filing of -includes both questions of facts and laws
the comment or such other pleadings or
documents as may be required or allowed by
the Court of Appeals or upon the expiration of
the period for the filing thereof, and on the
records the Court of Appeals finds prima facie
that the court or agency concerned has
committed errors of fact or law that would
warrant reversal or modification of the award,
judgment, final order or resolution sought to be
reviewed, it may give due course to the
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Amilhamja, Adj.
appeal, and shall issue an order explaining the

RULE 44 reasons for such declaration. (n)
Ordinary Appealed Cases
Section 7. Appellant's brief. — It shall be the duty
Section 1. Title of cases. — In all cases appealed of the appellant to file with the court, within forty-
to the Court of Appeals under Rule 41, the title five (45) days from receipt of the notice of the
of the case shall remain as it was in the court of clerk that all the evidence, oral and documentary,
origin, but the party appealing the case shall be are attached to the record, seven (7) copies of his
further referred to as the appellant and the legibly typewritten, mimeographed or printed
adverse party as the appellee. (1a, R46) brief, with proof of service of two (2) copies
thereof upon the appellee. (10a, R46)
Section 2. Counsel and guardians. — The
counsel and guardians ad litem of the parties in Section 8. Appellee's brief. — Within forty-five
the court of origin shall be respectively (45) days from receipt of the appellant's brief, the
considered as their counsel and guardians ad appellee shall file with the court seven (7) copies
litem in the Court of Appeals. When others of his legibly typewritten, mimeographed or
appear or are appointed, notice thereof shall printed brief, with proof of service of two (2)
be served immediately on the adverse party copies thereof upon the appellant. (11a, R46)
and filed with the court. (2a, R46)
Section 9. Appellant's reply brief. — Within
Section 3. Order of transmittal of record. — If twenty (20) days from receipt of the appellee's
the original record or the record on appeal is brief, the appellant may file a reply brief
not transmitted to the Court of Appeals within answering points in the appellee's brief not
thirty (30) days after the perfection of the covered in his main brief. (12a, R46)
appeal, either party may file a motion with the
trial court, with notice to the other, for the Section 10. Time of filing memoranda in special
transmittal of such record or record on appeal. cases. — In certiorari, prohibition, mandamus,
(3a, R46) quo warranto and habeas corpus cases, the
parties shall file in lieu of briefs, their respective
Section 4. Docketing of case. — Upon receiving memoranda within a non-extendible period of
the original record or the record on appeal and thirty (30) days from receipt of the notice issued
the accompanying documents and exhibits by the clerk that all the evidence, oral and
transmitted by the lower court, as well as the documentary, is already attached to the record.
proof of payment of the docket and other (13a, R46)
lawful fees, the clerk of court of the Court of The failure of the appellant to file his
Appeals shall docket the case and notify the memorandum within the period therefor may be
parties thereof. (4a, R46) a ground for dismissal of the appeal. (n)
Within ten (10) days from receipt of said notice,
the appellant, in appeals by record on appeal, Section 11. Several appellants or appellees or
shall file with the clerk of court seven (7) clearly several counsel for each party. — Where there are
legible copies of the approved record on several appellants or appellees, each counsel
appeal, together with the proof of service of representing one or more but not all of them shall
two (2) copies thereof upon the appellee. be served with only one copy of the briefs. When
Any unauthorized alteration, omission or several counsel represent one appellant or
addition in the approved record on appeal shall appellee, copies of the brief may be served upon
be a ground for dismissal of the appeal. (n) any of them. (14a, R46)
Section 5. Completion of record. — Where the Section 12. Extension of time for filing briefs. —
record of the docketed case is incomplete, the Extension of time for the filing of briefs will not be
clerk of court of the Court of Appeals shall so allowed, except for good and sufficient cause, and
inform said court and recommend to it only if the motion for extension is filed before the
measures necessary to complete the record. It expiration of the time sought to be extended. (15,
shall be the duty of said court to take R46)
appropriate action towards the completion of
the record within the shortest possible time. (n) Section 13. Contents of appellant's brief. — The
appellant's brief shall contain, in the order herein
Section 6. Dispensing with complete record. — indicated, the following:
Where the completion of the record could not (a) A subject index of the matter in the brief with
be accomplished within a sufficient period a digest of the arguments and page references,
allotted for said purpose due to insuperable or and a table of cases alphabetically arranged,
extremely difficult causes, the court, on its own textbooks and statutes cited with references to
motion or on motion of any of the parties, may the pages where they are cited;
declare that the record and its accompanying (b) An assignment of errors intended to be urged,
transcripts and exhibits so far available are which errors shall be separately, distinctly and
sufficient to decide the issues raised in the concisely stated without repetition and numbered
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consecutively; [AND BRUTTHEAD] and the French word “BREFIE”, and literally
(c) Under the heading "Statement of the Case," means a short or condensed statement. Its purpose is to present to
a clear and concise statement of the nature of the court in concise form the points and questions in controversy,
the action, a summary of the proceedings, the and by fair argument on the facts and law of the case, to assist the
appealed rulings and orders of the court, the court to arrive at a just and fair conclusion. It should be prepared
nature of the judgment and any other matters as to minimize the labor of the court in the examination of the
necessary to an understanding of the nature of record upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil.
the controversy with page references to the 67; Casilan vs. Chavez, L-17334, Feb. 28, 1962)
record;
(d) Under the heading "Statement of Facts," a So you summarize the case, facts, issues, arguments, discussions,
clear and concise statement in a narrative form citations of laws. So its like a debate no?
of the facts admitted by both parties and of Alright. The best brief writers I noticed are those in the Solicitor
those in controversy, together with the General’s office. Just imagine, the Solicitor General defends all the
substance of the proof relating thereto in cases of the government. When a criminal case is appealed by the
sufficient detail to make it clearly intelligible, accused to the CA or CA, automatically the Solicitor General takes
with page references to the record; over. In the lower court, it is the fiscals ‘no?
(e) A clear and concise statement of the issues So, the Solicitor General defends the case he had never tried. So
of fact or law to be submitted, to the court for they just based it on records. They condensed decisions kahit na
its judgment; gaano ang kapal, reducing it to 15 pages or less. It’s really an ability
(f) Under the heading "Argument," the to do it. The shorter the better. People there in the Solicitor
appellant's arguments on each assignment of General’s office are really good writers and researchers because
error with page references to the record. The that is the law office of the Republic of the Philippines. Lahat dyan
authorities relied upon shall be cited by the magagaling, isa lang ang hindi marunong. SINO? Ang Solicitor
page of the report at which the case begins and General ninyo! He is only a political appointee. (F. Chavez? Or
the page of the report on which the citation is Galvez?)
found;
(g) Under the heading "Relief," a specification Q: Is the 45-day period to file brief extendible?
of the order or judgment which the appellant A: YES, that is section 12. The worst violator here is the Solicitor
seeks; and General – extension 30 days, 2nd extension 30 days! Ganyan sila!
(h) In cases not brought up by record on appeal, Sometimes it takes them 18 months to prepare a brief. Sabagay,
the appellant's brief shall contain, as an marami din kasi silang trabaho ‘no?
appendix, a copy of the judgment or final order Q: When do you file the motion for extension of time to file brief?
appealed from. (16a, R46) A: The motion for extension of time is filed BEFORE the expiration
of the time sought to be extended. (Section 12) BUT sometimes the
Section 14. Contents of appellee's brief. — The SC can be liberal about extension. One case is
appellee's brief shall contain, in the order
herein indicated the following: MOSKOWSKY vs. CA – 230 SCRA 657
(a) A subject index of the matter in the brief FACTS: The CA here granted the appellant a period of 90 days
with a digest of the arguments and page counted from August 3, 1991. So after the 45 days plus 90 days pa
references, and a table of cases alphabetically from August 3, 1991. Said 90-day period ended on November 1,
arranged, textbooks and statutes cited with 1991. On November 4, 1991, or 3 days after the extended period,
references to the pages where they are cited; instead of filing a brief, appellant filed another motion for a 20-day
(b) Under the heading "Statement of Facts," the extension.
appellee shall state that he accepts the ISSUE #1: Was the motion for extension filed on time based on
statement of facts in the appellant's brief, or Section 12?
under the heading "Counter-Statement of HELD: YES. “Said ninety-day period would end on November 1,
Facts," he shall point out such insufficiencies or 1991. November 1 is a regular holiday. Then President Aquino
inaccuracies as he believes exist in the declared November 2, 1991 as a special holiday. The next day,
appellant's statement of facts with references November 3, 1991 turned out to be a Sunday. The next business
to the pages of the record in support thereof, day was, therefore, November 4, 1991 - a Monday.”
but without repetition of matters in the “The abovementioned motion was, therefore, filed on time, i.e.,
appellant's statement of facts; and the motion for the extension sought was filed before the expiration
(c) Under the heading "Argument," the of the time sought to be extended.”
appellee shall set forth his arguments in the ISSUE #2: When do you compute the 20-day extension being asked
case on each assignment of error with page for? Is it on November 1, the expiration of the period? Or on
references to the record. The authorities relied November 4, the day of the filing of the motion?
on shall be cited by the page of the report at HELD: “The appellant specifically manifested that they will need
which the case begins and the page of the another extension from today (November 4) within which to file
report on which the citation is found. (17a, R46) appellant’s brief, and ‘today’ is November 4. So, the period
commences to run on November 4.” So very liberal no?
This is like a thesis or writing a book – Appellant’s and appellee’s

brief.
Q: What is a brief? What is its purpose?
A: The word “BRIEF” is derived from the Latin word “BREVIS”
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Take note of Section 15 – what questions may an appellant except when his purpose is to seek affirmation of the judgment on
raise on appeal: other grounds or reasons not stated in the decision. (Saenz vs.
Section 15. Questions that may be raised on Mitchell, 60 Phil. 69; Gorospe vs. Peñaflorida, 101 Phil. 886; Dy vs.
appeal. — Whether or not the appellant has Kuison, L-16654, Nov. 30, 1961)
filed a motion for new trial in the court below Q: If the appellee seeks modification of the judgment, is it enough
he may include in his assignment of errors any for him to make assignment of errors?
question of law or fact that has been raised in A: In such a case, the appellee must appeal; an assignment of error
the court below and which is within the issues is not enough. (Oquiñena vs. Canda, 87 Phiil. 120; Gorospe vs.
framed by the parties. (18, R46) Peñaflorida, supra; Dy vs. Kuison, supra)
So the appellant cannot raise before the CA on appeal any GENERAL RULE: If you are the winning party, you may appeal the
question of law or fact that has not been raised in the lower decision if you think you are entitled for more. So, you must appeal.
court and not within the issues framed by the parties. He cannot, You cannot just state of errors in the appellee’s brief.
for the first time on appeal, say something which was not raised EXCEPTION: You may state assignment of errors to support the
in the trial court. Another thing is, he cannot change his theory decision – to support, not to change, the decision. If you want to
on appeal, either theory on the cause of action or theory on the change the decision, you appeal (general rule).
defense.
Now, sometimes it is easy to detect whether there is change of

theory. The only possible exception maybe is when you raise for
the first time on appeal something which you never raised as in
lack of jurisdiction unless estoppel will set in as in the case of
TIJAM vs. SIBONGHANOY. Illustrating this point is the case of
RIVERA vs. CA – 176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their house and lot to Rivera.
Later, they filed a complaint against Rivera declaring the sale as
null and void on the ground that the sale is a mortgage. The
court dismissed the complaint. So the ruling of the trial court
was that the sale was valid. But on the CA, Martinez spouses
prayed that they maybe allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to
redeem the property. Now, Rivera appealed to the CA,
contending that Martinez change the theory of their case
because in the original complaint the latter prayed for the
annulment of the sale, and in the CA they prayed that they be
allowed to redeem the property.
ISSUE: Was there a change of theory of the Martinez spouses?
HELD: There was NO CHANGE of theory. There was no surprise
against Rivera or to the CA. The real purpose of the Martinez
spouses in asking for the nullity of the contract is to enable them
to recover the property from Rivera.
“Prescinding from those allegations and from the prayer all

clearly set out in the complaint, it is fair to conclude that the real
purpose in asking for the nullity of the contract of sale is to
enable the Martinez spouses to recover or redeem the property
they deeded in favor of Rivera. It would be absurd to pray for
the nullity of an agreement and stop there. There would be a
vacuum and the law, like nature, abhors a vacuum.”
“In the CA, they persisted in their claim to entitlement of the

right to recover, redeem, or repurchase. This agreement can not
be construed as change of theory; it is persistence, plain and
simple. It does not leave any interstice in the entire theory of the
case.
Consistency in the position of the private respondents runs

throughout the presentation of their claim.”
So akala mo may change of theory, yun pala wala! Why are they
annulling? To recover their property. In other words there was
no change of theory.
Q: Is the appellee required to make assignment of errors?

A: The APPELLEE is not required to make assignment of errors,
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RULE 45 the judgment. On motion duly filed and served,

Appeal by Certiorari to the Supreme Court with full payment of the docket and other lawful
fees and the deposit for costs before the
Section 1. Filing of petition with Supreme expiration of the reglementary period, the
Court. — A party desiring to appeal by certiorari Supreme Court may for justifiable reasons grant
from a judgment or final order or resolution of an extension of thirty (30) days only within which
the Court of Appeals, the Sandiganbayan, the to file the petition. (1a, 5a)
Regional Trial Court or other courts whenever
authorized by law, may file with the Supreme Section 3. Docket and other lawful fees; proof of
Court a verified petition for review on service of petition. — Unless he has theretofore
certiorari. The petition shall raise only done so, the petitioner shall pay the
questions of law which must be distinctly set corresponding docket and other lawful fees to the
forth. (1a, 2a) clerk of court of the Supreme Court and deposit
the amount of P500.00 for costs at the time of the
-Do not interchange Rule 45 with Rule 65 which is petition for filing of the petition. Proof of service of a copy,
review on certiorari thereof on the lower court concerned and on the
-Appeal by certiorari is a mode of appeal VS. Petition for adverse party shall be submitted together with
certiorari is for a special civil action the petition. (1a)
=Totally different animals!
Section 4. Contents of petition. — The petition
So what is raised here? ONLY QUESTIONS OF LAW shall be filed in eighteen (18) copies, with the
a. Where to file- May file with the Supreme Court a verified original copy intended for the court being
petition for review on certiorari. The petition shall raise only indicated as such by the petitioner and shall (a)
questions of law which must be distinctly set forth. (Sec. 1) state the full name of the appealing party as the
b. When to file- The petition shall be filed within fifteen (15) petitioner and the adverse party as respondent,
days from notice. Subject to extension of 30 days upon without impleading the lower courts or judges
payment of corresponding docket fee. (Sec. 2) thereof either as petitioners or respondents; (b)
indicate the material dates showing when notice
Questions of law vs. Questions of fact of the judgment or final order or resolution
-There is question of law when there is doubt as to what law is subject thereof was received, when a motion for
on certain state of facts. new trial or reconsideration, if any, was filed and
-There is question of fact when doubt arises as to the truth or when notice of the denial thereof was received;
falsity of the alleged facts. (c) set forth concisely a statement of the matters
involved, and the reasons or arguments relied on
Factual-issue-bar Rule for the allowance of the petition; (d) be
-Petition for review under Rule 45 is discretionary. It may only accompanied by a clearly legible duplicate
be availed if the appeal is on pure question of law. Thus, original, or a certified true copy of the judgment
question of fact is not allowed to be raised because the or final order or resolution certified by the clerk of
Supreme Court is not a trier of facts. Consequently, calibration court of the court a quo and the requisite number
of evidence, as a rule may not be entertained by the Supreme of plain copies thereof, and such material portions
Court. (Roman Catholic Archbishop of Manila vs. Sta. Teresa, of the record as would support the petition; and
November 18, 2013) (e) contain a sworn certification against forum
shopping as provided in the last paragraph of
Exception to the rule: section 2, Rule 42. (2a)
Instances when SC may pass upon questions of fact
1. The conclusions of CA is grounded entirely on speculations, Section 5. Dismissal or denial of petition. — The
surmises and conjectures failure of the petitioner to comply with any of the
2. The inference is manifestly mistaken foregoing requirements regarding the payment of
3. There is grave abuse of discretion the docket and other lawful fees, deposit for
4. Judgment is based on misapprehension of facts costs, proof of service of the petition, and the
5. Findings of facts are conflicting contents of and the documents which should
6. The CA went beyond the issues of the case or its judgment is accompany the petition shall be sufficient ground
contrary to the admission of the parties for the dismissal thereof.
7. The findings of CA is contrary to lower court -Finding of fact The Supreme Court may on its own initiative deny
are conclusion without basis inn the petition on the ground that the appeal is
Evidence without merit, or is prosecuted manifestly for
8. Findings of fact of C A are premised on the supposed delay, or that the questions raised therein are too
absence of evidence and contradicted by evidence on record. unsubstantial to require consideration. (3a)
Section 2. Time for filing; extension. — The Section 6. Review discretionary. — A review is not
petition shall be filed within fifteen (15) days a matter of right, but of sound judicial discretion,
from notice of the judgment or final order or and will be granted only when there are special
resolution appealed from, or of the denial of and important reasons thereof. The following,
the petitioner's motion for new trial or while neither controlling nor fully measuring the
reconsideration filed in due time after notice of court's discretion, indicate the character of the
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reasons which will be considered:

(a) When the court a quo has decided a
question of substance, not theretofore
determined by the Supreme Court, or has
decided it in a way probably not in accord with
law or with the applicable decisions of the
Supreme Court; or
(b) When the court a quo has so far departed
from the accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervision. (4a)
Section 7. Pleadings and documents that may

be required; sanctions. — For purposes of
determining whether the petition should be
dismissed or denied pursuant to section 5 of
this Rule, or where the petition is given due
course under section 8 hereof, the Supreme
Court may require or allow the filing of such
pleadings, briefs, memoranda or documents as
it may deem necessary within such periods and
under such conditions as it may consider
appropriate, and impose the corresponding
sanctions in case of non-filing or unauthorized
filing of such pleadings and documents or non-
compliance with the conditions therefor. (n)
Section 8. Due course; elevation of records. —

If the petition is given due course, the Supreme
Court may require the elevation of the
complete record of the case or specified parts
thereof within fifteen (15) days from notice.
(2a)
Section 9. Rule applicable to both civil and

criminal cases. — The mode of appeal
prescribed in this Rule shall be applicable to
both civil and criminal cases, except in criminal
cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (n)
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RULE 46 and shall be accompanied by a clearly legible

Original Cases duplicate original or certified true copy of the
judgment, order, resolution, or ruling subject
Section 1. Title of cases. — In all cases originally thereof, such material portions of the record as
filed in the Court of Appeals, the party are referred to therein, and other documents
instituting the action shall be called the relevant or pertinent thereto. The certification
petitioner and the opposing party the shall be accomplished by the proper clerk of court
respondent. (1a) or by his duly authorized representative, or by the
proper officer of the court, tribunal, agency or
Q: What is the difference between Rule 46 and Rule 44? office involved or by his duly authorized
A: Rule 44 deals with appealed cases. Rule 46 deals with original representative. The other requisite number of
cases. Remember that the CA is both an original and appellate copies of the petition shall be accompanied by
court. clearly legible plain copies of all documents
attached to the original.
Q: What are these original cases which can be filed in the CA? The petitioner shall also submit together with the
A: Under Section 9 of BP 129, Certiorari, prohibition, mandamus, petition a sworn certification that he has not
quo warranto, annulment of judgment of the RTC. theretofore commenced any other action
involving the same issues in the Supreme Court,
The Annulment of Judgment of the RTC, which belongs to the the Court of Appeals or different divisions thereof,
exclusive original jurisdiction of the CA, is governed by Rule 47. or any other tribunal or agency; if there is such
other action or proceeding, he must state the
Now, all the rest of the sections here are almost the same: how status of the same; and if he should thereafter
many copies, docket fees, certification of non-forum shopping, learn that a similar action or proceeding has been
etc... filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or
Rule 44 on appeal to the CA, the caption of the case is the same any other tribunal or agency, he undertakes to
as the caption in the RTC (e.g. in the RTC, “RED HOT vs. LIMP promptly inform the aforesaid courts and other
BIZKIT”). You just add the word ‘appellant’ and ‘appellee.’ BUT tribunal or agency thereof within five (5) days
in Rule 44 in original cases, the parties are now called ‘petitioner’ therefrom.
and ‘respondent.’ The petitioner shall pay the corresponding docket
and other lawful fees to the clerk of court and
Section 2. To what actions applicable. — This deposit the amount of P500.00 for costs at the
Rule shall apply to original actions for time of the filing of the petition.
certiorari, prohibition, mandamus and quo The failure of the petitioner to comply any of the
warranto. requirements shall be sufficient ground for the
Except as otherwise provided, the actions for dismissal of the petition. (n; Bar Matter No. 803,
annulment of judgment shall be governed by 21 July 1998)
Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto by Section 4. Jurisdiction over person of respondent,
Rule 66. (n) how acquired. — The court shall acquire
jurisdiction over the person of the respondent by
Therefore, the provisions of Rules 65, 66 and 47 which apply to the service on him of its order or resolution
this original action should be read with Rule 46. indicating its initial action on the petition or by his
Just read Section 3. Take note of the second paragraph which voluntary submission to such jurisdiction. (n)
was inserted in 1998 by SC Circular 39-98). When you file an original action before the CA like certiorari,
normally under Section 3 you already furnish the adverse party
Section 3. Contents and filing of petition; effect with a copy of your petition. Then the CA will now issue a
of noncompliance with requirements. — The resolution, like for example, “Defendant/Respondent, you are
petition shall contain the full names and actual given so many days to comment.”
addresses of all the petitioners and earlier.
respondents, a concise statement of the
matters involved, the factual background of the That is how the CA acquires jurisdiction over your person – by
case, and the grounds relied upon for the relief serving you a copy of the order indicating its initial action. So
prayed for. there is no more summons because you were already furnished a
In actions filed under Rule 65, the petition shall copy
further indicate the material dates showing Section 5. Action by the court. — The court may
when notice of the judgment or final order or dismiss the petition outright with specific reasons
resolution subject thereof was received, when for such dismissal or require the respondent to file
a motion for new trial or reconsideration, if a comment on the same within ten (10) days from
any, was filed and when notice of the denial notice. Only pleadings required by the court shall
thereof was received. be allowed. All other pleadings and papers, may
It shall be filed in seven (7) clearly legible copies be filed only with leave of court. (n)
together with proof of service thereof on the
respondent with the original copy intended for
the court indicated as such by the petitioner,
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Section 6. Determination of factual issues. —

Whenever necessary to resolve factual issues,
the court itself may conduct hearings thereon
or delegate the reception of the evidence on
such issue to any of its members or to an
appropriate court, agency or office. (n)
Section 7. Effect of failure to file comment. —

When no comment is filed by any of the
respondents, the case may be decided on the
basis of the record, without prejudice to any
disciplinary action which the court may take
against the disobedient party. (n)
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B. Remedies after Judgment became final and executory final order or other proceedings should be filed in and resolved by
1. Petition for relief from judgment (Rule 38) the court in the same case from which the petition arose. Thus,
2. Annulment of Judgment (Rule 47) petition for relief from a judgment, final order or proceeding
3. Certiorari (Rule 65) involved in a case tried by a municipal court shall be filed in and
4. Collateral attack on the judgment decided by the same court in the same case, or in the Regional
Trial Court if the case was decided by it (Redena vs. CA GR No.
146611, February 6, 2007).
Rule 38
-Grounds
Relief from Judgments, Orders, or Other
• Fraud, Accident, Mistake, Excusable Negligence (FAME) (Sec. 1
Proceedings
&2)
Section 1. Petition for relief from judgment,
-Where to file
order, or other proceedings. — When a
• Court which rendered the judgment, final order, order denying
judgment or final order is entered, or any other
appeal or court which conducted the proceedings
proceeding is thereafter taken against a party
in any court through fraud, accident, mistake,
Petition is available only to the parties
or excusable negligence, he may file a petition
A petition for relief from judgment together with a motion for
in such court and in the same case praying that
new trial and a motion for reconsideration are remedies available
the judgment, order or proceeding be set aside.
only to parties in the proceedings where the assailed judgment is
(2a)
rendered. In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein, cannot
B.1. Petition for Relief from Judgment
avail of a petition for relief from judgment (Alaban vs. CA 470
-Subject
SCRA 697).
• Judgment
• Final order
Section 2. Petition for relief from denial of appeal.
• Other proceedings (Sec.1)
— When a judgment or final order is rendered by
• Order denying the appeal (Sec.2)
any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has
After the judgment becomes final and executory, the losing
been prevented from taking an appeal, he may file
party may avail of the following:
a petition in such court and in the same case
a) Petition for Relief from Judgment;
praying that the appeal be given due course. (1a)
b) Action to Annul a Judgment;
c) Certiorari; and
Section 3. Time for filing petition; contents and
d) Collateral attack of a judgment.
verification. — A petition provided for in either of
the preceding sections of this Rule must be
-The term final when used to describe a judgment may be used
verified, filed within sixty (60) days after the
in two senses:
petitioner learns of the judgment, final order, or
other proceeding to be set aside, and not more
In the first, it refers to a judgment that disposes of a case in a
than six (6) months after such judgment or final
manner that leaves nothing more to be done by the court in
order was entered, or such proceeding was taken,
respect thereto. In this sense, a final judgment is distinguished
and must be accompanied with affidavits showing
from an interlocutory order which does not finally terminate or
the fraud, accident, mistake, or excusable
dispose of the case (Rudecon Management Corporation vs.
negligence relied upon, and the facts constituting
Singson, 454 SCRA 612). Here the remedies are a Motion for
the petitioner's good and substantial cause of
Reconsideration, motion for New Trial and appeal.
action or defense, as the case may be. (3)
In another sense the word “final” may refer to a judgment that
Period to File
is no longer appealable and is already capable of being
A petition provided for in either of the preceding sections of this
executed because the period for appeal has lapsed without a
Rule must be verified, filed within sixty (60) days after the
party having perfected an appeal of it there has been an
petitioner learns of the judgment, final order, or other proceeding
appeal, it has already been resolved by a highest possible
to be set aside, and not more than six (6) months after such
tribunal (PCGG vs. Sandiganbayaan 455 SCRA526). In this sense,
judgment or final order was entered, or such proceeding was
the judgment is commonly referred to as one that is “final and
taken.
executory.”
> Two periods compliance is MANDATORY
1) Within 60 days after the petitioner learns the judgment, etc.
Rule 38 is known as the remedy of petition for relief from
2) Within 6 months after entry.
judgment or final order. The grounds cited here are actually the
same as the grounds for new trial – FAME. We are meeting
Q: Is the period for filing a petition for relief extendible?
FAME for the third time. It seems to be a ground that keeps on
A: The remedy allowed by Rule 38 is merely an act of grace or
going back. First in Default, then New Trial, and now a ground
benevolence intended to afford a litigant a penultimate
for petition for Relief from Judgment.
opportunity to protect his interest. Considering the nature of such
relief and of the purpose behind it, the periods fixed by said rule
This is not an independent action but a continuation of the old
are NON-EXTENDIBLE and is never interrupted; nor can it be
case. It is filed with the same court which decided it.
subject to any condition or contingency because it is itself devised
Under the present Rules, petitions for relief from a judgment,
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to meet a condition or contingency. (Smith, Bell & Co. vs. Phil. Rule: Execution of judgment is not stayed unless a writ of
Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta, L- preliminary injunction is isuued by the court.
16473, April 20, 1961)
Preliminary injunction actually is a type of provisional remedy
Section 4. Order to file an answer. — If the which is governed by Rule 58. Injunction is to stop ba, to enjoin
petition is sufficient in form and substance to somebody or stop the court from doing an act. That is the essence
justify relief, the court in which it is filed, shall of injunction.
issue an order requiring the adverse parties to
answer the same within fifteen (15) days from Upon filing of the petition:
the receipt thereof. The order shall be served in 1) the court in which the petition is filed may grant such
such manner as the court may direct, together preliminary injunction as may be necessary for the preservation of
with copies of the petition and the the right of the parties, upon the filing by the petitioner of a bond
accompanying affidavits. (4a) in favor of the adverse party.
2) Such injunction shall not discharge any lien which the adverse
This remedy precludes the issuance of summons upon its filing. party may have acquired upon the property of the petitioner.
If the petition is sufficient in form and in substance, the court
shall issue an order requiring the adverse parties to answer EXAMPLE: I lost in a case. The judgment became final and
within 15 days from receipt thereof. executory because I did not make an appeal. However, I filed a
petition for relief. In the meantime, my opponent is asking the
Failure to file an answer does a declaration of default. court to execute the decision which is his right because the
You file a petition for relief, the court will issue an order judgment is already final
requiring the other party to answer. It is like a complaint all and executory. In other words, I am questioning the judgment of
over again where you are given 15 days to answer. Meaning the court while siya naman, he is asking the court to enforce the
sagutin mo “Would you agree that your opponent is a victim of judgment.
FAME?” In other words, do you agree or disagree? – yan ang
sagutin mo. “Do you agree that he has meritorious cause of Q: Now, what is my remedy to stop the enforcement of the
action (or defense)?” Meaning, you are given the right to judgment?
oppose the petition for relief. A: Under Section 5, I can ask the court to issue a writ of
preliminary injunction to stop the enforcement of the judgment.
Section 5. Preliminary injunction pending But I have to put up a BOND conditioned that in the event that my
proceedings. — The court in which the petition petition for relief is not meritorious, I will pay for all the damages
is filed may grant such preliminary injunction as that the other party will incur because of the delay in the
may be necessary for the preservation of the execution.
rights of the parties, upon the filing by the
petitioner of a bond in favor of the adverse Section 6. Proceedings after answer is filed. —
party, conditioned that if the petition is After the filing of the answer or the expiration of
dismissed or the petitioner fails on the trial of the period therefor, the court shall hear the
the case upon its merits, he will pay the adverse petition and if after such hearing, it finds that the
party all damages and costs that may be allegations thereof are not true, the petition shall
awarded to him by reason of the issuance of be dismissed; but if it finds said allegations to be
such injunction or the other proceedings true, it shall set aside the judgment or final order
following the petition, but such injunction shall or other proceeding complained of upon such
not operate to discharge or extinguish any lien terms as may be just. Thereafter the case shall
which the adverse party may have acquired stand as if such judgment, final order or other
upon, the property, of the petitioner. (5a) proceeding had never been rendered, issued or
taken. The court shall then proceed to hear and
Remember that a petition for relief is a remedy available after determine the case as if a timely motion for a new
the judgment or final order has become final and executory. trial or reconsideration had been granted by it.
Hence the judgment could be the subject of a writ of (6a)
execution. There is nothing in the Rules that precludes the
execution of the judgment that is already executory upon BAR QUESTION: When a petition for relief from judgment is filed,
proper application of the prevailing party during the pendency what are the hearings that will be conducted by the court?
of the petition. The petitioner therefore, would be interested in A: In proceedings for relief from judgment, there may be two (2)
the preservation of the status quo as well as the preservation hearings, to wit:
of the rights of the parties before the petition is resolved. 1) a hearing to determine whether the judgment or order
Hence, the petitioner may avail of the remedy allowed him complained of should be set aside, and
under Sec. 5 of Rule 38. Under this provision, the court in 2) if the decision thereon is in the affirmative, a hearing on the
which the petition is filed, may grant such preliminary merits of the principal case.
injunction to preserve the rights of the parties upon the filing
of a bond in favor of the adverse party. The bond is conditioned So, the FIRST HEARING is to determine whether the petition should
upon the payment to the adverse party of all damages and be granted or not – is the petition meritorious or not? Was there
costs that may be awarded to such adverse party by reason of FAME? Is there affidavit of merit? Is the affidavit proper? Is the
the issuance of the injunction or the other proceedings petition filed within the period allowed by the law or not?
following the petition (Sec. 5 Rule 38).
Now, if the petition is denied that is the end of the story. Wala na.
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Now, if the petition for relief is granted, the judgment will be set review?
aside as if it never existed. Then we will now try the case all over
again as if a motion for new trial has been filed. That is the The SC in Purcon vs. MRM Philippines, Inc. GR 182718, September
second hearing. The SECOND HEARING is the trial on the merits 26, 2008 answered the question in the negative. A petition for relief
or a trial de novo. from judgment is not an available remedy in the SC. In summary
the SC explained, thus:
Now, somebody was commenting, “Ito bang petition for relief “First, although Section 1 of Rule 38 states that when a judgment
parang appeal din? Is this similar to appeal?” The answer is NO. or final order is entered through fraud, accident, mistake or
In the first place, there is no appeal here. Kaya nga the judgment excusable negligence, a party in any court may file a petition for
has become final and executory because there was no appeal. relief from judgment, this rule must be interpreted in harmony with
Now, in an appeal, for example: Natalo ka sa kaso. When you Rule 56, which enumerates the original cases cognizable by the
appeal and you win, the decision will be overturned. From Supreme Court, thus:
losing, you become the winner. That is the effect of appeal.
Section 1. Original cases cognizable. – Only petition for certiorari,
But in petition for relief, you are not asking the court to change prohibition, mandamus, quo warranto, habeas corpus, disciplinary
its decision. When a petition for relief from judgment is granted, proceedings against members of the judiciary and attorneys, and
the decision against you will be set aside as if it was never cases affecting ambassadors, other public ministers and consuls
rendered and we will try the case all over again. In a petition for may be filed originally in the Supreme Court.
relief, the court has no power to change its decision because it “A petition for relief from judgment is not included in the list of
has already become final and executory. But its power under Rule 56 cases originally cognizable by the Court.
Rule 38 is to set it aside as if it was never rendered and conduct
a new trial as if a motion for new trial has been filed. So please Second, while Rule 38 uses the phrase “any court,” it refers only to
do not confuse Rule 38 with the remedy of appeal. the Munici[pal/Metropolitan and Regional Trial Courts.
As revised, Rule 38 radically departs from the previous rule as it
Section 7. Procedure where the denial of an now allows the Metropolitan or Municipal Trial Court which
appeal is set aside. — Where the denial of an decided the case or issued the order to hear the petition for relief.
appeal is set aside, the lower court shall be Under the old rule, a petition for relief from the judgment or final
required to give due course to the appeal and order of Municipal Trial Courts should be filed with the Regional
to elevate the record of the appealed case as if Trial Court.
a timely and proper appeal had been made.
(7a) The procedural change in Rule 38 is in line with Rule 5, prescribing
uniform procedure for Municipal and Regional Trial Courts and
Problem designation of Municipal/Metropolitan Trial Courts as courts of
-Marina learns the judgment by default on September 1. The record.
Judgment was entered on January 2. The Petition was filed on Third, the procedure in the CA and the Supreme Court are
October 1. governed by separate provisions of the Rules of Court. It may, from
- Is it filed within the period? Apply 60/6; NO! time to time, be supplemented by additional rules promulgated by
-Marina learns the judgment by default on September 1. The the Supreme Court through resolutions or circulars. As it stands,
Judgment was entered on May 2. The Petition was filed on neither the Rules of Court nor the Revised Internal Rules of the CA
October 1. allows the remedy of petition for relief in the CA.xxx”
- Is it filed within the period? YES!
-Marina learns the judgment by default on September 1. The Earlier, in Mesina vs. Meer 383 SCRA 625, the Court ruled that a
Judgment was entered on July 2. The Petition was filed on petition for relief from judgment is not an available remedy in the
December 1. CA and the SC.
- Is it filed within the period?
Remedies if Rule 38 is no longer available
Is petition for relief available in the SC or CA? 1) Petition for Annulment of Judgment under R 47; and
- No. (Purcon vs. MRM Philippines, Inc., 566 SCRA 645) 2) A direct or collateral attack if judgment is void ab initio
-Note: Whether not petition for relief is available for lack of jurisdiction.
in CA? No because it is a court of appellate Note: Under AM No. 08-8-7 SC, otherwise known as the Rule of
jurisdiction- Redena Vs. CA* Procedure for Small Claims Cases, a Motion for New Trial or
Reocnsideration (R 37), and a Peition for Relief from Judgment (R
Q: Can I file a petition for relief from the denial of an appeal? 38) are prohibited pleadings.
A: YES. Both remedies, likewise, are prohibited pleading under the Rule on
Summary Procedure.
Q: And if my petition for relief from the order denying the appeal
is granted, what will happen?
A: According to Section 7, the court will now grant the appeal
and allow the appeal to proceed as if it was filed on time.
Meaning, the judgment will not be set aside but I will be given
the right to appeal if the failure to file an appeal as due to FAME.
No petition for relief in the Supreme Court

Can petitioner avail of a petition for relief from judgment under
Rule 38 from a resolution of the SC denying his petition for
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RULE 47 on limited grounds.
Annulment of Judgments of Final Orders and Who may file the action?
Resolutions The petitioner need not be a party to the judgment sought to be
annulled.
Section 1. Coverage. — This Rule shall govern (Alaban vs. CA; Islamic Da’Wah Council of the Phil. vs. CA 178
the annulment by the Court of Appeals of SCRA 178). An action for annulment can be filed by one who was
judgments or final orders and resolutions in not a party to the action in which the assailed judgment was
civil actions of Regional Trial Courts for which rendered. It is a remedy in law independent of the case where the
the ordinary remedies of new trial, appeal, judgment sought
petition for relief or other appropriate to be annulled is promulgated (Villanueva vs. Nite 496 SCRA 459).
remedies are no longer available through no
fault of the petitioner. (n) Section 2. Grounds for annulment. — The
annulment may be based only on the grounds of
B.2. Annulment of Judgments extrinsic fraud and lack of jurisdiction.
Coverage (Sec. 1) Extrinsic fraud shall not be a valid ground if it was
-This Rule shall govern the annulment by the Court of Appeals availed of, or could have been availed of, in a
of judgments or final orders and resolutions in civil actions of motion for new trial or petition for relief. (n)
Regional Trial Courts for which the ordinary remedies of new Grounds
trial, appeal, petition for relief or other appropriate remedies -Section 2, Rule 47
are no longer available through no fault of the petitioner. -Extrinsic fraud & Lack of jurisdiction
-You don’t file annulment of judgment in a criminal case. It is -Lack of jurisdiction on subject matter and lack of jurisdiction on
only applicable in Civil Actions or RTC person of the defendant
-N.B. Extrinsic fraud shall not be a valid ground if it was availed of,
Nature of the action or could have been availed of, in a motion for new trial or petition
An action for annulment of judgment is a remedy in law for relief.
independent of the case where the judgment sought to be -Republic vs “G” Holdings, Inc., 475 SCRA 608
annulled was rendered. The purpose of such action is to have
the final and executory judgment set aside so that there will be Extrinsic fraud
a renewal of litigation. It is resorted to in cases where the -Fraud is regarded as extrinsic where it prevents a party from
ordinary remedies of new trial, appeal, petition for relief from having a trial or from presenting his entire case to the court or
judgment, or other appropriate remedies are no longer where it operates upon matters pertaining not to the judgment
available through no fault of the petitioner, and is based only itself but the manner in which it is procured. The overriding
on two grounds: extrinsic fraud, and lack of jurisdiction or consideration when extrinsic fraud is alleged is that the fraudulent
denial of due process (Alaban vs. CA 470 SCRA 697). scheme of the prevailing party litigant prevented a party from
having his day in court.
This remedy is available only where the ordinary remedies of Alaban vs. CA, 470 SCRA 697
new trial, appeal, petition for review or appropriate remedies
are no longer available through no fault of the petitioner. Lack of jurisdiction
Hence, if such remedies were not availed of due to the Lack of jurisdiction as a ground for annulment of judgment refers
petitioner’s fault, the petition will be dismissed (Republic vs. Where the court has jurisdiction over the defendant and over the
Asset Privatization Trust GR 141241, Nov. 22, 2005; Sec. 1, Rule subject matter of the case, its decision will not be voided on the
47). ground of absence of jurisdiction (Republic vs. “G” Holdings GR
No. `141241 November 22, 2005). The petitioner must show not a
Like a petition for relief, an action for the annulment of a mere grave abuse of discretion but an absolute lack of jurisdiction
judgment is a recourse equitable in character, allowed only in (Republic vs.”G” Holdings 475 SCRA 608). A claim of grave abuse
exceptional cases as where there is no available or adequate of discretion will support a petition for certiorari under Rule 65
remedy (Ramos vs. Combong 473 SCRA 499). The remedy may but it will not support an action for annulment of a judgment.
no longer be invoked where the party has availed himself of
the remedy of new trial, appeal, petition for relief or other In a petition for annulment of judgment, based on lack of
appropriate remedy and lost or where he has failed to avail jurisdiction, petitioner must show an absolute lack of authority to
himself of those remedies through his fault or negligence (Heirs hear and decide the case. There would be no valid ground to
of Maura So vs. Obliosca 542 SCRA 406) grant the petition for annulment where the error raised pertain to
the trial court’s exercise of jurisdiction, not the absence of
Well of course the remedy of new trial under Rule 37 must be jurisdiction (Heirs of Maura So vs. Obliosca 542 SCRA 406).
availed of before the judgment or order becomes final and
executory. Also, the remedy of appeal must also be availed If we follow jurisprudence, there is a third ground which is
before the judgment or order becomes final and executory. implied: LACK OF DUE PROCESS. When there is lack of due process
In petition for relief under Rule 38, although the judgment or there is also lack of jurisdiction.
order is already final and executory, it must be done still within
60 days and 6 months. Q: How do you attack a judgment which is void?
A: It depends:
Q: Suppose all the abovementioned remedies have lapsed, is a) when the judgment is null and void on its very face, the
there a remedy left? judgment may be attacked:
A: Section I says YES. There is annulment of judgment but only 1) DIRECTLY; or
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2) COLLATERALLY; 3) When the judgment was obtained by fraud and

b) when the nullity is not apparent on the face of the Rule 38 cannot be applied anymore.
judgment, the judgment can be attacked only be DIRECTLY So those are the summary of the remedies.
attacked.
ISLAMIC DA’WAH COUNCIL vs. CA – 178 SCRA 178
Q: What is a COLLATERAL ATTACK? ISSUE #1: Can a person, who is not a party to the judgment, file an
A: Meaning, there is no need for me to file a case but I can action for annulment of judgment?
invoke its nullity anytime because a judgment which is void on HELD: A person who is not a part of the judgment may sue for its
its very face can be attacked at anytime, in any manner annulment PROVIDED that he can prove [1] that the judgment
anywhere. was obtained through fraud and collusion and [2] that he would
be adversely affected thereby.
EXAMPLE of Collateral attack: You are moving to execute a ISSUE #2: Suppose the judgment had already been fully executed
judgment. I will oppose the execution on the ground that the and implemented, can you still file a case for annulment of
judgment is void. That is collateral attack. I’m just saying that judgment?
the judgment cannot be enforced because it is null and void. HELD: YES. We will also annul the execution. If there is no
But I never filed a direct action to declare its nullity. That can execution yet, the proper remedy normally is you file an action for
be done if the judgment is void on its very face. annulment and ask for the issuance of a writ of preliminary
injunction so that it will not be enforced. Pero kung na-enforced
Q: What is a DIRECT ATTACK? na pwede pa man din ba.
A: By direct attack means you must file an action to declare its
nullity. So there must be a case for its annulment. SUMMARY: Possible remedies of defendant declared in DEFAULT:
Again, when the judgment is null and void on its face, (1) you 1) Rule 9, Section 3 [b] – Motion to lift Order of Default, there is
may file a direct action to annul it under Rule 47. Or, (2) it can still no judgment; ground: FAME;
also be attacked collaterally, a direct attack is not necessary. A 2) Rule 37 – Motion for new trial, judgment not yet final; Ground:
collateral attack will suffice. FAME;
3) Rule 38 – Petition for relief within 60 days and 6 months,
EXAMPLE: RTC decided a forcible entry. By simply reading the judgment is already final; ground: FAME;
decision, obviously the RTC has no jurisdiction. Therefore, I can 4) Rule 41 – Appeal within 15 days; ground: Default judgment is
attack it directly by filing a case for its annulment under Rule contrary to law or evidence;
47. OR, I will not file a case under Rule 47 but I will attack it 5) Rule 47 – Annulment of judgment; Ground: Extrinsic Fraud;
collaterally. Meaning, bayaan ko lang. I will raise that issue 6) Rule 65 – Certiorari; ground: Lack or excess of jurisdiction or
during execution. If you move for execution, I can oppose, “You grave abuse of discretion
cannot execute because the RTC has no jurisdiction over the
case. Therefore the judgment is void.” So it is not necessary to Section 3. Period for filing action. — If based on
file a case to declare the decision as null and void. That is extrinsic fraud, the action must be filed within
collateral attack. four (4) years from its discovery; and if based on
lack of jurisdiction, before it is barred by laches or
But if the judgment is not void on its face but the nullity is estoppel. (n)
intrinsic or nakatago – not obvious ba – the rule is, you must Period to File
file a direct action for its annulment which must be done -If based on extrinsic fraud, the action must be filed within four
before the action is barred by laches or estoppel. So it is (4) years from its discovery; and if based on lack of jurisdiction,
necessary to file a case for annulment of judgment under Rule before it is barred by laches or estoppel (Sec. 3, Rule 47).
47.
Section 4. Filing and contents of petition. — The
Well of course, certiorari under Rule 65 is also a ground for action shall be commenced by filing a verified
attacking a judgement but the trouble is you are limited to 3 petition alleging therein with particularity the
grounds: Lack of jurisdiction, excess of jurisdiction and grave facts and the law relied upon for annulment, as
abuse of discretion. Walang extrinsic fraud. That is governed by well as those supporting the petitioner's good and
Rule 65 and not by Rule 47. substantial cause of action or defense, as the case
may be.
And under Rule 65, you can avail of certiorari only within 60 The petition shall be filed in seven (7) clearly
days. But if you want annulment, it could be longer under Rule legible copies, together with sufficient copies
47. That is under section 3. That could be a big difference. corresponding to the number of respondents. A
Moreover, what do you attack in certiorari? Normally, certified true copy of the judgment or final order
interlocutory orders eh. But a final judgment can be attacked or resolution shall be attached to the original copy
by annulment under Rule 47. of the petition intended for the court and
Now, those remedies were summarized in the case of indicated as such by the petitioner.
The petitioner shall also submit together with the
BAYOG vs. NATINO – 258 SCRA 378 [1996] petition affidavits of witnesses or documents
HELD: It is a settled rule that a final and executory judgment supporting the cause of action or defense and a
may be set aside in three (3) ways. To wit: sworn certification that he has not theretofore
1) By petition for relief from judgment under Rule 38; commenced any other action involving the same
2) When the judgment is void for want of jurisdiction, by direct issues in the Supreme Court, the Court of Appeals
attack, by certiorari, annulment of or different divisions thereof, or any other
judgment or by collateral attack; and tribunal or agency if there is such other action or
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proceeding, he must state the status of the may issue such orders of restitution or other relief
same, and if he should thereafter learn that a as justice and equity may warrant under the
similar action or proceeding has been filed or is circumstances. (n)
pending before the Supreme Court, the Court
of Appeals, or different divisions thereof, or Section 10. Annulment of judgments or final
any other tribunal or agency, he undertakes to orders of Municipal Trial Courts. — An action to
promptly inform the aforesaid courts and other annul a judgment or final order of a Municipal
tribunal or agency thereof within five (5) days Trial Court shall be filed in the Regional Trial Court
therefrom. (n) having jurisdiction over the former. It shall be
treated as an ordinary civil action and sections 2,
Section 5. Action by the court. — Should the 3, 4, 7, 8 and 9 of this Rule shall be applicable
court find no substantial merit in the petition, thereto. (n)
the same may be dismissed outright with And the QUESTION is asked: “Meron bang action for annulment of
specific reasons for such dismissal. judgments of MTC?” Yaann!
Should prima facie merit be found in the Answer: YES. Kung merong annulment of judgment of the RTC, by
petition, the same shall be given due course implication, meron din ang MTC. You cannot file it in the CA. You
and summons shall be served on the file it in the RTC.
respondent. (n) Annulment of judgment of the MTC will fall under the rule on
jurisdiction of the RTC – any action which does not belong to the
Section 6. Procedure. — The procedure in jurisdiction of any other courts (Section 19 [6], BP 129) or, an action
ordinary civil cases shall be observed. Should the subject matter of which is incapable of pecuniary estimation
trial be necessary, the reception of the (Section 19 [1], BP 129) That would be the authority.
evidence may be referred to a member of the Now it’s very clear, meron talaga. It is now stated categorically
court or a judge of a Regional Trial Court. (n) there is an action for annulment of judgment also of the MTC. It
must be filed in the RTC having jurisdiction over the MTC. The
Section 7. Effect of judgment. — A judgment of grounds are identical as those found in the previous section. So this
annulment shall set aside the questioned is an entirely new section.
judgment or final order or resolution and
render the same null and void, without Annulment of judgments of quasi-judicial bodies
prejudice to the original action being refiled in In Macalalag vs. Ombudsman 424 SCRA 741, 745 the Court ruled
the proper court. However, where the that Rule 47 of the 1997 Rules of Civil Procedure on annulment of
judgment or final order or resolution is set judgments or final orders and resolutions covers annulment of the
aside on the ground of extrinsic fraud, the court judgments of RTC by the CA.
may on motion order the trial court to try the
case as if a timely motion for new trial had been The silence of BP 129 on the jurisdiction of the CA to annul
granted therein. (n) judgments or final orders and resolutions of quasi-judicial bodies
like the DARAB indicates its lack of such authority (Springfield
So if the judgment is set aside on the ground of extrinsic fraud, Development Corporation vs. RTC of Mis Or. GR 142628 Feb 6
the action can be re-filed. The court may, on motion, order the 2007). It is hence, submitted that a party aggrieved who desires an
trial court to try the case as if a timely motions for the trial had annulment of a judgment or resolution of quasi-judiciaL BODY
been granted therein. That is similar to Rule 38, Section 6. ENUMERATED UNDER Rule 43 may avail of a petition for review to
Remember when the court grants a petition for relief, the case the CA under said rule and not an action to annul the judgment or
will be tried all resolution.
over again as if a timely motion for new trial has been filed.
CERTIORARI (RULE 65)
Q: What happens if by the time you re-file the case the Called a “supervisory or superintending writ,” this remedy is
prescriptive period has already lapsed? availed of to annul or modify the proceedings of a tribunal, board
A: As a general rule, while the action for annulment is pending, or officer exercising judicial or extrajudicial functions which has
the prescriptive period for filing is interrupted. That is Section 8: acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack of jurisdiction. For this petition to
Section 8. Suspension prescriptive period. — prosper, it is necessary to allege and show that there is no more
The prescriptive period for the refiling of the appeal, or any other plain, speedy, and adequate remedy in the
aforesaid original action shall be deemed ordinary course of law.
suspended from the filing of such original
action until the finality of the judgment of As a rule, where appeal is available, certiorari cannot be availed of
annulment. However, the prescriptive period unless it can be shown that appeal is not speedy, or adequate.
shall not be suspended where the extrinsic- Hence, the basic question to be considered is: Does the petitioner
fraud is attributable to the plaintiff in the have the remedy of appeal or any other remedy? If the answer is in
original action. (n) the affirmative, certiorari is not available, as a rule. However, even
if appeal is available, if it is not adequate, speedy or equally
Section 9. Relief available. — The judgment of beneficial as certiorari, a petition for certiorari may be availed of
annulment may include the award of damages, (Landbank vs. CA 409 SCRA 455)
attorney's fees and other relief.
If the questioned judgment or final order or The task of the court in a certiorari proceeding is to determine
resolution had already been executed the court whether the lower court committed grave abuse of discretion
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(Marcopper Mining vs. Solidbank Corporation, GR 134049 June jurisdiction is not apparent from the record, you cannot do
17, 2004). It is a remedy narrow in scope. It is not a general utility collateral attack. What are you going to do in order to challenge
tool in the legal workshop. Its function is to raise only questions that void judgment? You file an annulment of judgment on the
of jurisdiction and no other. It cannot be used for any other grounds of extrinsic fraud and lack of jurisdiction
purpose (Landbank vs. CA, supra). Do not file a certiorari if your
purpose is to raise a factual issue or to ask for a re-evaluation of Other Appeals/Reviews
the facts and the evidence (PILTEL vs. NTC 410 SCRA 82). - Review of decision of NLRC – Petition for Certiorari under Rule 65
(St. Martin Funeral Homes vs. NLRC)
The sole object of the writ is to correct errors of jurisdiction or - Review of decision of VA in labor cases – Petition for review under
grave abuse of discretion. The phrase “grave abuse of Rule 43 (Royal Plant Workers Union vs. Coca-Cola Bottler Phils.
discretion” has a precise meaning in law, denoting abuse of April 15, 2013)
discretion “too patent and gross as to amount to an evasion of a - Review of rulings of Ombudsman
positive duty, or a virtual refusal to perform the duty enjoined ◦ Administrative case – Petition for review under Rule 43 (Pia vs
or act in contemplation of law, or where the power is exercised Gervacio June 5, 2013)
in an arbitrary and despotic manner by reason of passion and ◦ Criminal cases – Rule 65 Supreme Court (Cabrera vs. Lapid, 510)
personal hostility.” It does not encompass an error of law. Nor SCRA 55)
does it include a mistake in the appreciation of the contending - Appeals from CTA en banc – Rule 45 (Sec. 11, RA 9282)
parties’ respective evidence or the evaluation of their relative - Review of decision of Comelec en banc – Rule 64, 65
weight. - Review of decision of COA – Rule 64, 65
- Appeals from decision of CSC – Rule 43
The Court cannot be tasked to go over the proofs presented by
the parties and analyze, assess and weigh them all over again to Carpio- Morales vs. CA,
ascertain if the trial court or quasi-judicial agency and the -RA 6770- Ombudsman law
appellate court were correct in according superior credit to this -Section 14. Restrictions. — No writ of injunction shall be issued by
or that piece of evidence of one party or the other. The sole any court to delay an investigation being conducted by the
office of a writ of certiorari is the correction of errors of Ombudsman under this Act, unless there is a prima facie evidence
jurisdiction including the commission of grave abuse of that the subject matter of the investigation is outside the
discretion amounting to lack of jurisdiction, and does not include jurisdiction of the Office of the Ombudsman.
the review of factual findings based thereon (Remy’s Freight No court shall hear any appeal or application for remedy
Service GR 14167 June 8, 2006) against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law.
The petition shall be filed not later than 60 days from notice of
the judgment, order or resolution. In case a motion for This case involves the suspension order against Junjun Binay.
reconsideration was filed, the 60-day period starts not from the
notice of judgment but from notice of the denial of the motion The second paragraph: “No court shall hear any appeal or
for reconsideration (Docena vs. Lapser 355 SCRA 658). application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law”
Does RTC have jurisdiction to entertain petition for annulment was declared unconstitutional for violating Section 30, Article VI.
of judgment of MTC?
-YES. An action to annul a judgment or final order of a Municipal Section 30. No law shall be passed increasing the appellate
Trial Court shall be filed in the Regional Trial Court having jurisdiction of the Supreme Court as provided in this Constitution
jurisdiction over the former. It shall be treated as an ordinary without its advice and concurrence
civil action and Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be
applicable thereto (Sec. 10, Rule 47). The first paragraph: “No writ of injunction shall be issued by any
Q: What gives the RTC jurisdiction for annulment of judgment of court to delay an investigation being conducted by the
the RTC? Ombudsman under this Act was declared ineffective until the Court
A: BP 129 as amended by RA7691 = Court of general jurisdiction adopts the same as part of the rules of procedure through an
ang RTC administrative circular duly issued therefor.
B.3. Collateral Attack on Judgment Section 5(5), Article VIII

-A collateral attack is made when, in another action to obtain a - Promulgate rules concerning the protection and enforcement of
different relief, an attack on the judgment is made as an incident constitutional rights, pleading, practice, and procedure in all
in said action. This is proper only when the judgment, on its face, courts, the admission to the practice of law, the Integrated Bar, and
is null and void, as where it is patent that the court, which legal assistance to the underprivileged. Such rules shall provide a
rendered said judgment, has no jurisdiction (Co vs. CA, 196 SCRA simplified and inexpensive procedure for the speedy disposition of
705). cases, shall be uniform for all courts of the same grade, and shall
A. direct attack- file an annulment of judgment not diminish, increase, or modify substantive rights. Rules of
b. Collateral attack- is an incidental attack procedure of special courts and quasi-judicial bodies shall remain
i.e. Court rendered a decision and the court who rendered a effective unless disapproved by the Supreme Court.
decision has no jurisdiction over the case but nobody questioned
the decision. So judgment became final and executory.
Defendant filed motion for writ of execution because judgment
is void for lack of jurisdiction. This is a collateral attack. Collateral
attack is available when lack of jurisdiction is apparent and
latent from the record or in the decision itself. IF lack of
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Amilhamja, Adj.
RULE 48
Preliminary Conference
Preliminary Conference is like a pre-trial in the CA. Iba lang ang
tawag but it is really a pre-trial because there are cases which
fall under the original jurisdiction of the CA, like annulment of
judgment of the RTC. Its purpose is the same as in Rule 18 on
pre- trial.
Section 1. Preliminary conference. — At any

time during the pendency of a case, the court
may call the parties and their counsel to a
preliminary conference.
(a) To consider the possibility of an amicable
settlement, except when the case is not
allowed by law to be compromised
(b) To define, simplify and clarify the issues for
determination;
(c) To formulate stipulations of facts and
admissions of documentary exhibits, limit the
number of witnesses to be presented in cases
falling within the original jurisdiction of the
court, or those within its appellate jurisdiction
where a motion for new trial is granted on the
ground of newly discovered evidence; and
(d) To take up such other matters which may
aid the court in the prompt disposition of the
case. (Rule 7, CA Internal Rules) (n)
Section 2. Record of the conference. — The

proceedings at such conference shall be
recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the
actions taken therein, the stipulations and
admissions made and the issues defined. (n)
Section 3. Binding effect of the results of the

conference. — Subject to such modifications
which may be made to prevent manifest
injustice, the resolution in the preceding
section shall control the subsequent
proceedings in the case unless, within five (5)
days from notice thereof, any party shall
satisfactorily show valid cause why the same
should not be followed. (n)
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Amilhamja, Adj.
RULE 49
Oral Argument
Section 1. When allowed. — At its own instance

or upon motion of a party, the court may hear
the parties in oral argument on the merits of a
case, or on any material incident in connection
therewith. (n)
The oral argument shall be limited to such
matters as the court may specify in its order or
resolution. (1a, R48)
Section 2. Conduct of oral argument. — Unless

authorized by the court, only one counsel may
argue for a party. The duration allowed for each
party, the sequence of the argumentation, and
all other related matters shall be as directed by
the court. (n)
Section 3. No hearing or oral argument for

motions. — Motions shall not be set for hearing
and, unless the court otherwise directs, no
hearing or oral argument shall be allowed in
support thereof. The adverse party may file
objections to the motion within five (5) days
from service, upon the expiration of which such
motion shall be deemed submitted for
resolution. (29, R49)
How are cases decided in the CA? Normally, you file your
petition; submit argument in writing; then you wait for the
decision. But sometimes, the CA is provoked by legal issues. So
the CA would decide to listen to oral arguments of the parties,
especially when the case is controversial.
Under Section 3, one difference between motions filed in the
RTC and in the CA is that:
a) in the RTC, there must be notice of hearing (Rule 15) attached
to the motion, otherwise it will be denied;
b) in the CA, there is no need for notice of hearing to be attached
to the motion.
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RULE 50 taken on time.
Dismissal of Appeal In the 1973 case of BERKENKOTTER VS. CA, this ground was
supposed to be abolished already where the SC said that from now
Section 1. Grounds for dismissal of appeal. — on, We will no longer follow the material data rule. Meaning this is
An appeal may be dismissed by the Court of abandoned.
Appeals, on its own motion or on that of the
appellee, on the following grounds: So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the
(a) Failure of the record on appeal to show on SC has already refused to apply this ground. So when they drafted
its face that the appeal was taken within the the Rules, dapat tinanggal na yon. Bakit nandito na naman? They
period fixed by these Rules; might have forgotten that it has been abandoned by jurisprudence,
(b) Failure to file the notice of appeal or the unless the intention is to return it.
record on appeal within the period prescribed
by these Rules; econd Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE
(c) Failure of the appellant to pay the docket RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY THESE
and other lawful fees as provided in section 5, RULES;
Rule 40 and section 4 of Rule 41; (Bar Matter
No. 803, 17 February 1998) Take note that under paragraph [a], the appeal was filed on time
(d) Unauthorized alterations, omissions or but the record on appeal does not show that it was filed on time.
additions in the approved record on appeal as
provided in section 4 of Rule 44; But here in paragraph [b], the appeal is really out of time. Take note
(e) Failure of the appellant to serve and file the that you can raise this ground in the trial court. The trial court is
required number of copies of his brief or also authorized to dismiss an appeal on this ground (Rule 41,
memorandum within the time provided by Section 13). But assuming that you failed to raise it in the trial court,
these Rules; you can raise it in the CA.
(f) Absence of specific assignment of errors in
the appellant's brief, or of page references to Q: Are you under estoppel for not raising it earlier in the RTC?
the record as required in section 13, paragraphs Meaning, why did you not bring it out earlier, bakit hinintay pa sa
(a), (c), (d) and (f) of Rule 44; CA?
(g) Failure of the appellant to take the A: There is no estoppel here because actually this is a jurisdictional
necessary steps for the correction or challenge. When the notice of appeal is filed out of time or beyond
completion of the record within the time 15 days, actually the judgment of the RTC has already become final
limited by the court in its order; and executory. So you are now challenging the jurisdiction of the
(h) Failure of the appellant to appear at the CA. Meaning, you are trying to say that the CA has no jurisdiction
preliminary conference under Rule 48 or to to review on appeal a judgment of the RTC which has already been
comply with orders, circulars, or directives of final and executory.
the court without justifiable cause; and
(i) The fact that the order or judgment appealed Q: Does the CA have the power to review and reverse an RTC
from is not appealable. (1a) judgment which is already final and executory?
A: No more. The judgment which is already final cannot be changed
Grounds for dismissal of appeal in the CA. Take note that under by the CA. Meaning, the CA has no jurisdiction to entertain the
Section 1, an appeal may be dismissed by the CA on its own appeal in that case. So in effect, it is a jurisdictional challenge which
(motu propio) or upon motion of the appellee. And there are can be raised even in the CA even if not raised earlier in the RTC.
nine (9) grounds for dismissal of appeal under Section 1:
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF RULE 40
ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD AND SECTION 4 OF RULE 41;
FIXED BY THESE RULES;
Section 5 of Rule 40 is about filing of docket fees if you appeal from
So this only applies in cases where a record on appeal is the MTC to the RTC. Section 4 of Rule 41 refers to filing of docket
required. Failure to show on its face that the appeal was fees when the appeal is from RTC to CA.
perfected on time – meaning, the appeal might have been
perfected on time but by reading the record on appeals, you will Q: When do you pay the docket fee?
not see it. A: Within the 15-day period, you already pay it in the RTC clerk of
court. Unlike before you pay it with the CA later. That is why as I
Normally, that happens when the party did not state the exact said, failure to pay the docket fee in the RTC is a ground for
date when he received the decision. He may just state the date dismissal of the appeal because of this.
of the decision without stating the date of receipt. With that, the
court will presume that you received it on the date of the Q: But how about failure to pay the appeal fee in the MTC prior to
decision. It might be beyond the period to appeal. So on its face, transmittal to the RTC? Is it a ground for dismissal by the CA?
there is no showing whether the appeal was within the 30 day A: To my mind NO because why will the CA dismiss it when the
period or not. appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang kaso
sa kanila? The CA has nothing to do with the appeal. It is supposed
The first ground is called the MATERIAL DATA RULE – that the to be in the RTC, bakit ang CA ang mag-dismiss? In other words,
record on appeal must show on its face that the appeal was there is something wrong with this amendment. (referring to
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Amilhamja, Adj.
“Section 5 of Rule 40”) the orderly disposition of appealed cases. In an age where courts
are bedeviled by clogged dockets, these rules need to be followed
But if the appeal is from the RTC to the CA, you must you must by appellants with greater fidelity. Their observance cannot be left
pay the docket fees because it is a specific ground for dismissal to the whims and caprices of appellants.”
for the dismissal under Rule 50.
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS NECESSARY STEPS FOR THE CORRECTION OR COMPLETION OF THE
OR ADDITIONS IN THE APPROVED RECORD ON APPEAL AS RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
PROVIDED IN SECTION 4 OF RULE 44; Sometimes yung record mo kulang-kulang ba. And the party may
be directed to work for the completion. If you fail to complete the
That’s only when there is a record on appeal. When the record record, your appeal will be dismissed.
on appeal is approved, you have to reproduce it and you are not Please connect this with two previous provisions talking about
allowed to make any alteration, revision or addition. completion of the record in an appealed case. I’m referring to Rule
41, Section 10 and Rule 44, Sections 5 to 6 because these provisions
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND talk also of completion of record. (please refer to your codals)
FILE THE REQUIRED NUMBER OF COPIES OF HIS BRIEF OR Rule 41, Sec. 10. Duty of clerk of court of the lower court upon
MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES; perfection of appeal. Within thirty (30) days after perfection of all
the appeals in accordance with the preceding section, it shall be the
Failure of the appellant to serve and file the required number of duty of the clerk of court of the lower court:
copies of his brief. So, failure to file the appellant’s brief is a (a) To verify the correctness of the original record or the record on
ground for dismissal of the appeal. appeal, as the case may be, and to make a certification of its
correctness;
Q: Now, suppose it is the appellee who did not file any brief, (b) To verify the completeness of the records that will be
what will happen? transmitted to the appellate court;
A: You do not dismiss the appeal but the case will be submitted (c) If found to be incomplete, to take such measures as may be
for decision without appellee’s brief. The CA will make a required to complete the records, availing of the authority that he
resolution that the case was submitted without the appellee’s or the court may exercise for this purpose; and
brief. (d) To transmit the records to the appellate court. If the efforts to
complete the records fail, he shall indicate in his letter of
Q: Does it mean to say that talo na ‘yung appellee? transmittal the exhibits or transcripts not included in the records
A: NO. There are many cases I’ve seen where the appellee did being transmitted to the appellate court, the reasons for their non-
not file any brief – Talo man gihapon ang appellant because transmittal, and the steps taken or that could be taken to have
anyway the appellant’s brief has no merit. But normally in cases them available.
na delikado, you better file an appellee’s brief. You owe that to
your client. Just imagine, lahat ng arguments dun hindi sagutin. The clerk of court shall furnish the parties with copies of his letter
That’s very dangerous! of transmittal of the records to the appellate court.
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS Rule 44, Sec. 5. Completion of record. Where the record of the
IN THE APPELLANT’S BRIEF, OR OF PAGE REFERENCES TO THE docketed case is incomplete, the clerk of court of the Court of
RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D) Appeals shall so inform said court and recommend to it measures
AND (F) OF RULE 44; necessary to complete the record. It shall be the duty of said court
Well, you may file an appellant’s brief, eh wala namang page to take appropriate action towards the completion of the record
references, wala namang assignment of errors. My God! What within the shortest possible time.
kind of brief is that! (YC Bikini Briefs?) Very sloppy! You file a
brief without telling the CA kung anong mali and then you expect Rule 44, Sec. 6. Dispensing with complete record. Where the
the CA to look for the errors. My golly! Do not expect the CA to completion of the record could not be accomplished within a
do that. Meron dapat citations – e.g. “See Exhibit ‘A’”, “See sufficient period allotted for said purpose due to insuperable or
transcript...” Merong reference ba! like kung anong page yan. extremely difficult causes, the court, on its own motion or on
motion of any of the parties, may declare that the record and its
Now if you file a brief without footnotes, without citing the law, accompanying transcripts and exhibits so far available are sufficient
without citing the transcript, without citing the exhibit, that to decide the issues raised in the appeal, and shall issue an order
would be dismissed. That’s what happened in the 1995 case of explaining the reasons for such declaration.
DEL ROSARIO vs. CA – 241 SCRA 553 [1995] Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE
FACTS: The CA dismissed the case simply because the appellant’s PRELIMINARY CONFERENCE UNDER RULE 48 OR TO COMPLY WITH
brief was sloppily written – no reference to exhibit, no reference ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT WITHOUT
to page, no reference to anything. It was dismissed! The JUSTIFIABLE CAUSE; AND
appellant went to the SC pleading liberality. That’s a new ground – failure to appear on the preliminary
HELD: “Petitioner’s plea for liberality in applying these rules in conference; failure to comply with orders, circulars, directives of
preparing Appellant’s Brief does not deserve any sympathy. the court without justifiable cause. That is very broad. That’s a new
Long ingrained in our jurisprudence is the rule that the right to one not found in the old law.
appeal is a statutory right and a party who seeks to avail of the
right must faithfully comply with the rules. Deviations from the Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT
rules cannot be tolerated. The rationale for this strict attitude is APPEALED FROM IS NOT APPEALABLE.
not difficult to appreciate. These rules are designed to facilitate The fact that the judgment or order appealed from is not
237
Amilhamja, Adj.
appealable. Interlocutory!
Q: What are the judgments or orders which are not appealable? MORILLO vs. CONSUL
A: Your reference is Rule 41, Section 1: HELD: “There is no longer any justification for allowing transfers of
Rule 40, Section 1. Subject of appeal. xxxxxx erroneous appeals from one court to the other, much less for
NO APPEAL may be taken from: tolerating continued ignorance of the law on appeals.”
(a) An order denying a motion for new trial or reconsideration; Take note that this refers to appeal under Rule 41 from RTC. This
(b) An order denying a petition for relief or any similar motion does not apply when the appeal to the CA is from a quasi-judicial
seeking relief from judgment; body. Appeal from a quasi-judicial body on a pure question of law
(c) An interlocutory order; should be to the CA, never to the SC. You compare this with Rule
(d) An order disallowing or dismissing an appeal; 42, Section 2:
(e) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud, Rule 42, Section 2. Form and contents.- The
mistake or duress, or any other ground vitiating consent; petition shall be filed in seven (7) legible copies,
(f) An order of execution; with the original copy intended for the court being
(g) A judgment or final order for or against one or more of indicated as such by the petitioner, and shall:
several parties or in separate claims, counterclaims, cross-claims xxx
and third- party complaints, while the main case is pending, (c) set forth concisely a statement of the
unless the court allows an appeal therefrom; and matters involved, the issues raised, the
(h) An order dismissing an action without prejudice. specification of errors of fact or law, or both,
allegedly committed by the RTC and the reasons or
So, if you appeal on any one of them, the other party can file a arguments relied upon for the allowance of the
motion to dismiss on the ground that it is not appealable. appeal.
Xxx
Now, there is one ground for dismissal under the old rule na Errors of fact or law, or both.” This refers to Petition for Review
nawala naman. Yun bang “failure to prosecute the appeal”, from the RTC to the CA.
when the records are not elevated to the CA the appeal can be
dismissed. Meaning, you have to follow up the clerk of court. Q: What happens if an appeal is already taken to the CA?
Nawala yun eh. That ground seems to have been abandoned. I A: It shall be dismissed outright. Under the ’64 Rules, the CA will
think the attitude there is let us not punish the appellant for the pass it on to the SC. But the liberal policy has now been changed.
fault of the clerk of court.
Aaron [Cruz] asked a question (during the 1998 Review Class)
Q: Is a default judgment appealable? ANSWER: Yes, there is a decided case. In the meantime, you also
A: YES. It is appealable because it is a final judgment and not lost the right to correct the error. Lumampas na eh!. Kaya it would
merely interlocutory. Although under the ‘64 Rules, there is a be dismissed. Hindi naman sinasabi na the appellant will be
direct provision that a default judgment is appealable. Now, that directed to appeal properly. In other words, it will be dismissed.
provision has disappeared. But even if it is not mentioned now, Meaning, that is the end. That is the penalty for erroneous appeal.
default judgment is now covered by Rule 41 on final judgments. Kaya nga according to MORILLO which became the basis of this,
there is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
Section 2. Dismissal of improper appeal to the tolerating continued ignorance of the law on appeals. Kaya nga
Court of Appeals. — An appeal under Rule 41 before, very lenient pag mali under the 1964 Rules. But now in
taken from the Regional Trial Court to the Court Section 2 of Rule 50, wala na – i-dismiss na.
of Appeals raising only questions of law shall be
dismissed, issues purely of law not being Section 3. Withdrawal of appeal. — An appeal
reviewable by said court. Similarly, an appeal may be withdrawn as of right at any time before
by notice of appeal instead of by petition for the filing of the appellee's brief. Thereafter, the
review from the appellate judgment of a withdrawal may be allowed in the discretion of
Regional Trial Court shall be dismissed. (n) the court. (4a)
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the Q: Now, can you withdraw the appeal in the RTC level?
appropriate court but shall be dismissed A: YES, prior to the transmittal of the original record or the record
outright. (3a) on appeal, the court may allow withdrawal of the appeal. (Section
9, Rule 41)
Meaning, you must appeal to the right court and you must use
the proper mode of appeal. This incorporates in the Rules the Q: Where will you file the motion to withdraw?
resolutions of the SC in the 1990 En Banc Resolution in MORILLO A: In the RTC if the records are still in the RTC. If the records of
vs. CONSUL (not found in the SCRA) and also incorporates the appeal is already in the CA, you file the motion to the CA at anytime
provisions of Circular 2-90 dated March 9. 1990. before the filing of the appellee’s brief you can withdraw it as a
matter of right. When there is already an appellee’s brief, it can be
Prior to this under the 1964 Rules, the rule is if there is wrong allowed in the discretion of the Court (Section 3). That is similar to
appeal like pure questions of law to the CA, the CA should not the Rule in Rule 17, Section 1:
dismiss the appeal but elevate it to the SC. That rule has long Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint
been abandoned. It was abandoned in the case of MORILLO and may be dismissed by the plaintiff by filing a notice of dismissal at
in Circular 2-90. Now, it is here. Kung question of law you better any time before service of the answer or of a motion for summary
appeal to the SC. If you appeal to the CA, the CA will dismiss it. judgment. Upon such notice being filed, the court shall issue an
238
Amilhamja, Adj.
order confirming the dismissal. Unless otherwise stated in the

notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action
based on or including the same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in the

lower court?
A: YES, as a matter of right for as long as there is still no answer
filed. But when the defendant has filed an answer, dismissal of
the complaint is already discretionary upon the court. So it is the
same!
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Amilhamja, Adj.
RULE 51 or easily determinable by the judge and there are no doctrinal

Judgment complications involved that will require an extended discussion of
the laws involved. The memorandum decision may be employed in
You already know that the Court of Appeals operates by division. simple litigations only, such as ordinary collection cases, where the
There are more than 50 justices there. Every division is appeal is obviously groundless and deserves no more than the time
composed of 3. The 3 must be unanimous. In case there is no needed to dismiss it.”
unanimity, there should be a special division of 5 to hear the
case all over again and the majority rules. Although from what I Q: When is a case deemed submitted for judgment? A: Section 1 of
gathered sa CA, this is a farce . Actually, they do not discuss it, Rule 51:
they will just give it to the ponente. Tapos sabihin mo ‘concur.’
Bihira lang talaga ang naga- participate unless siguro malakas ka Section 1. When case deemed submitted for
sa isang justice and then mag- dissent para magkaroon ng judgment. — A case shall be deemed submitted
division of 5. That is not really the intention of the of the law. for judgment:
A. In ordinary appeals. —
Let’s go back to what we were saying before under Rule 36. 1) Where no hearing on the merits of the main
Every decision or resolution of a court shall clearly and distinctly case is held, upon the filing of the last pleading,
state the facts and the law on which it is based. If a decision does brief, or memorandum required by the Rules or by
not state its basis, it is a SIN PERJUICIO judgment. That is not a the court itself, or the expiration of the period for
valid judgment. The requirement applies to all courts whether its filing.
MTC, RTC, or CA. This is emphasized again in Section 5: 2) Where such a hearing is held, upon its
termination or upon the filing of the last pleading
Section 5. Form of decision. — Every decision or or memorandum as may be required or permitted
final resolution of the court in appealed cases to be filed by the court, or the expiration of the
shall clearly and distinctly state the findings of period for its filing.
fact and the conclusions of law on which it is B. In original actions and petitions for review. —
based, which may be contained in the decision 1) Where no comment is filed, upon the expiration
or final resolution itself, or adopted from those of the period to comment.
set forth in the decision, order, or resolution 2) Where no hearing is held, upon the filing of the
appealed from. (Sec. 40, BP Blg. 129) (n) last pleading required or permitted to be filed by
the court, or the expiration of the period for its
The CA must state its findings and conclusions or according to filing.
Section 5 it may simply adopt the findings and conclusions set 3) Where a hearing on the merits of the main case
forth in the decision or order appealed from. If the CA is going is held, upon its termination or upon the filing of
to affirm the judgment of the RTC, it may simply copy or adopt the last pleading or memorandum as may be
the findings and conclusions of the RTC. It is called a required or permitted to be filed by the court, or
“MEMORANDUM DECISION”. the expiration of the period for its filing. (n)
If you will look at Section 5, it states that the provision is taken Section 2. By whom rendered. — The judgment
from Section 40, BP 129. It is taken from the Judiciary Law. shall be rendered by the members of the court
Is this provision not an invitation to laziness on the part of the who participated in the deliberation on the merits
CA justices? If the CA will affirm the judgment of the RTC, the of the case before its assignment to a member for
work is easier because it may simply adopt on its own the the writing of the decision. (n)
findings of the RTC. If the CA would reverse the decision, the job
would be more difficult, because it would write an entirely new Section 3. Quorum and voting in the court. — The
decision to rebut or dispute the findings of the RTC. This is why participation of all three Justices of a division shall
when this provision came out in the Judiciary Law, there was a be necessary at the deliberation and the
sort of fear that this might be the cause of laziness. unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or
The SC, well aware of that danger, clarifies in one case that final resolution. If the three justices do not reach
memorandum decisions are not allowed in all cases. The CA is a unanimous vote, the clerk shall enter the votes
only allowed to render a memorandum decision in simple cases of the dissenting Justices in the record. Thereafter,
especially when the appeal is dilatory and there is nothing wrong the Chairman of the division shall refer the case,
in the appealed decision. But if the case is complicated or together with the minutes of the deliberation, to
complex, even if CA would affirm the decision, it cannot simply the Presiding Justice who shall designate two
copy the work of the RTC. It should write its own decision. The Justices chosen by raffle from among all the other
limitation or guidelines was issued by the SC precisely to avoid members of the court to sit temporarily with
the danger of laziness on the part of CA justices. The SC said in them, forming a special division of five Justices.
the case of The participation of all the five members of the
special division shall be necessary for the
FRANCISCO vs. PERMSKUL – 173 SCRA 324 deliberation required in section 2 of this Rule and
HELD: “The Court finds it necessary to emphasize that the the concurrence of a majority of such division shall
memorandum decision should be sparingly used lest it become be required for the pronouncement of a judgment
an addictive excuse for judicial sloth. It is an additional condition or final resolution. (2a)
for its validity that this kind of decision may be resorted to only
in cases where the facts are in the main accepted by both parties
240
Amilhamja, Adj.
Section 4. Disposition of a case. — The Court of HELD: “It is erroneous to rule that the decision of the trial court
Appeals, in the exercise of its appellate could be reversed as to the appealing private respondent and
jurisdiction, may affirm, reverse, or modify the continue in force against the other private respondents. The latter
judgment or final order appealed from, and could not remain bound after the former had been released;
may direct a new trial or further proceedings to although the other private respondents had not joined in the
be had. (3a) appeal, the decision rendered by the respondent court inured to
their benefit. When the obligation of the other solidary debtors is
Section 5. Form of decision. — Every decision or so dependent on that of their co-solidary debtor, the release of the
final resolution of the court in appealed cases one who appealed, provided it be not on grounds personal to such
shall clearly and distinctly state the findings of appealing private respondent, operates as well as to the others
fact and the conclusions of law on which it is who did not appeal. It is for this reason, that a decision or judgment
based, which may be contained in the decision in favor of the private respondent who appealed can be invoked as
or final resolution itself, or adopted from those res judicata by the other private respondents.” So, their liabilities
set forth in the decision, order, or resolution are so intertwined.
appealed from. (Sec. 40, BP Blg. 129) (n)
EXAMPLE: Mayakin Skywalker and Darth Mort borrowed money
Section 6. Harmless error. — No error in either from Qui Gon Jet. They bound themselves jointly and severally to
the admission or the exclusion of evidence and pay the loan. There is only one promissory note, one loan and both
no error or defect in any ruling or order or in Mayakin and Darth Mort signed. Their common defense is
anything done or omitted by the trial court or payment. But the trial court ruled in favor of the plaintiff (Qui Gon
by any of the parties is ground for granting a Jet) and ordered Mayakin and Darth Mort to pay. Mayakin
new trial or for setting aside, modifying, or appealed but Darth Mort did not. On appeal, CA decided in favor of
otherwise disturbing a judgment or order, Mayakin saying, “Wala nang utang si Mayakin ba dahil bayad na!”
unless refusal to take such action appears to How about Darth Mort? Darth Mort is also released.
the court inconsistent with substantial justice.
The court at every stage of the proceeding must This principle is reiterated in the case of
disregard any error or defect which does not CAYABA vs. COURT OF APPEALS – 219 SCRA 571 [1993]
affect the substantial rights of the parties. (5a) HELD: “A reversal of a judgment on appeal is binding on the parties
to the suit but does not inure to the benefit of parties who did not
Section 7. Judgment where there are several join in the appeal (as a general rule). The recognized exception is
parties. — In all actions or proceedings, an when their rights and liabilities and those of the parties appealing
appealed judgment may be affirmed as to some are so interwoven and dependent so as to be inseparable, in which
of the appellants, and reversed as to others, case a reversal as to one operates as a reversal to all.”
and the case shall thereafter be proceeded
with, so far as necessary, as if separate actions The rule is so similar in Criminal Procedure. When the appeal of one
had been begun and prosecuted, and execution accused benefits his co-accused who did not appeal especially
of the judgment of affirmance may be had when the defense of such appealing accused is applicable to him.
accordingly, and costs may be adjudged in such
cases, as the court shall deem proper. (6)
Section 8. Questions that may be decided. — No
Q: When there are 2 or more plaintiffs or 2 or more defendants error which does not affect the jurisdiction over
in the cases appealed, is it possible that the CA will render the subject matter or the validity of the judgment
decision for one plaintiff but against the other plaintiffs, or in appealed from or the proceedings therein will be
favor of one defendant and against the other? considered unless stated in the assignment of
A: YES. It is possible that one plaintiff will win, other plaintiffs errors, or closely related to or dependent on an
will lose especially when the facts are not identical. This is also assigned error and properly argued in the brief,
true in cases of 2 or more defendants when each one interposes save as the court may pass upon plain errors and
separate defenses. The defense of one may be true, others may clerical errors. (7a)
be false. It is possible that one defendant will win and other Q: Can the CA decide an issue which was not raised by the parties?
defendants will lose. Can the CA correct the error which was never assigned by the other
party?
Q: Suppose there are 2 defendants in a case. All of them lost. A: GENERAL RULE: Only errors which are stated in the appellant’s
Defendant A appealed. Defendant B did not appeal. On appeal, brief should be considered. If the error is not assigned, that cannot
defendant A won. Will the appeal of A benefit B who did not be corrected. This is just an extension of the rule that objections
appeal? and defenses not pleaded are deemed waived.
A: As a GENERAL RULE: No, the appeal would only benefit the
appealing defendant. The judgment becomes final to those who EXCEPTION: The following matters can be corrected or the court
did not appeal even if it is wrong. can take cognizance even if the parties did not raise them:
EXCEPTION: When the LIABILITY of the 2 parties is so 1) Jurisdiction over the subject matter of the case;
INTERTWINED that it would be absurd that one of them will win 2) Plain errors;
and the other will lose. Thus, the appeal by the appealing party 3) Clerical Errors.
benefits his co-party who did not appeal. This principle was laid 4) Errors which are not assigned but closely related to or
down in some cases. Among them is the case of dependent on an assigned error.
UNIVERSAL MOTORS CORP. vs. CA - 205 SCRA 428 [1992] The fourth exception is taken from decided cases. According to the
241
Amilhamja, Adj.
SC, even if you will not mention a mistake committed by the trial termination of the lease. Suppose there is no stipulation, who will
court if such mistake is related to the mistake mentioned, it can own the building?
be corrected. In the case of According to the Civil Code, the owner of the land has the option
to acquire the building by paying one half of its value. Pero, if I do
ABEJARON vs. CA – 208 SCRA 899 [1992] not want to appropriate the building, then you have the right to
HELD: An unassigned error closely related to the error properly remove the building provided you will not damage the land. So the
assigned, or upon which the determination of the question option to pay you belongs to the owner of the land. The lessee
raised by the error properly assigned is dependent, will be cannot compel the owner of the land to pay.
considered by the appellate court notwithstanding the failure to
assign it as error. Let us go now to the case of Santos. This is a very queer case.
While an assignment of error which is required by law or rule of SANTOS vs. CA – 221 SCRA 42
court has been held essential to appellate review, and only those FACTS: Artemio Santos et al are lessees of a piece of land. They
assigned will be considered, there are a number of cases which have not paid the rentals for 28 years. The lessor filed a case of
appear to accord to the appellate court a broad discretionary unlawful detainer against all of them before the Metropolitan Trial
power to waive this lack of proper assignment of errors and Court of Pasig. The trial court rendered judgment against Santos et
consider errors not assigned. al. So they were ordered ejected.
The same principle was reiterated in the 1995 case of Now, these people were not satisfied. They still appealed to the
CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE PRESIDENT – RTC. The RTC affirmed the judgment that they should be ejected
241 SCRA 165 but modified it by ordering the lessor to reimburse the lessees for
HELD: “While the rule is that no error which does not affect the latter’s improvements on the leased property. So, affirmed, but
jurisdiction will be considered unless stated in the assignment or bayaran mo iyong mga bahay ng mga tao. (DEAN I: To my mind,
errors, the trend in modern-day procedure is to accord the that portion of the decision is wrong. You cannot order the lessor
courts broad discretionary power such that the appellate court to reimburse.)
may consider matters bearing on the issues submitted for
resolution which the parties failed to raise or which the lower But despite that, Santos et al were not satisfied. They still appealed
court ignored.” to the CA. The lessor did not appeal so obviously, the lessor is
Let us look at the second exception – plain errors. willing to pay. Although he has no obligation to pay the
What is a plain error? Because a plain error can be corrected by improvements, pero sige na lang para matapos na! He did not
the appellate court even if not asked by the parties, plain man? appeal.
If you will ask me, any plain error is yung talagang obvious
mistake – one which is apparent to the eye. Now, the CA affirmed again the ejectment. So tatlo na. There were
Now, suppose the trial court made an error in applying a law or three courts where the occupants lost. But the CA deleted the
in interpreting a law. But it was not attacked by the losing party portion of the RTC decision ordering reimbursement of the
and it was not corrected on appeal. Is it a plain error? It would improvements. It was really wrong. Walang reimbursement diyan.
seem no and yet that is what happened in the 1993 case of So this time, Santos et al appealed to the SC. And they say that the
portion of the decision deleting our right to reimbursements is
SANTOS vs. CA (221 SCRA 42). wrong because the owner of the land is not questioning it, he is not
But before we discuss the case of Santos, we have to know the appealing so why should the CA delete it? So, meaning payag iyong
basics. There are two principles here to remember. owner. Therefore that portion of the decision of the CA where we
The appellant is the one who appeals and it is he who will file are no longer entitled to reimbursement is erroneous. The CA has
the appellant’s brief and then he will make the assignment of no power to delete that portion of the RTC decision because there
errors. The appellee will refute the appellant’s assignment of was no appeal from the landowner.
errors which were committed by the trial court. ISSUE: Is the decision of the CA correct?
Q: Can the appellee impute errors or make assignment of HELD: YES. The CA is correct. “It is true that the rule is well-settled
errors? that a party cannot impugn the correctness of a Judgment not
A: The general rule is NO. If you are an appellee, you are not appealed from by him, and while he may make counter-assignment
appealing and thus you are accepting the decision. So if you of errors, he can do so only to sustain the judgment on other
think the decision is in your favor pero mali pa rin, you must also grounds but not to seek modification or reversal thereof for in such
appeal. a case he must appeal. A party who does not appeal from the
So an appellee is not allowed to assign errors committed by the decision may not obtain any affirmative relief from the appellate
trial court except if the purpose of the assignment of errors is to court other than what he has obtained from the lower court, if any,
sustain the decision on another ground. Because sometimes you whose decision is brought up on appeal. However, the Rules of
agree with the decision but you do not agree with the reason. Court and jurisprudence authorize a tribunal to consider errors,
The decision is correct but this should be the reason. Because although unassigned, if they involve (1) errors affecting the lower
actually, you are defending the decision on another ground. court’s Jurisdiction over the subject matter, (2) plain errors not
Meaning the court made a mistake in arriving at the decision but specified, and (3) clerical errors.”
the decision is correct. Yan, puwede yan. But if you want the “Under Article 1678, it is the lessor who has the option to pay for
decision to be changed, then you must also appeal. one-half of the value of the improvements which the lessee has
made in good faith. The lessee cannot compel the lessor to
Now, let us go to the case of SANTOS which involves the law on appropriate and reimburse.” Therefore, the decision of the RTC
lease, particularly the interpretation and the application of ordering the lessor is actually erroneous.
Article 1678 Civil Code. Under the law on lease, suppose I will “Hence, the award of reimbursement for improvements by the trial
rent to you my land and you built a building there and there is court in favor of petitioners amounts to a plain error which may be
no agreement as to who will own the building after the rectified on appeal although not specified in the appellee’s brief.”
242
Amilhamja, Adj.
But the trouble is, the landowner did not appeal. If we follow the Q: Now, how do you execute a judgment of the CA?
ruling, then lahat ng mali ng trial court ay plain error na. That is A: Under Section 11, it depends if it is an original action or an
what the SC said. Bakit man 243akita243 plain error ito when appealed case.
actually it will not qualify as plain error ? If we will follow that For an appealed case, in case of execution pending appeal, take
line of reasoning, every mistake committed by a trial court can note that if the records of the case are already elevated to the CA,
be corrected being a plain error. motion for execution pending appeal should already be filed there.
To my mind, merong equity ito, eh. Analyze the case. You are And if the CA grants the motion to execute pending appeal, it will
occupants for 28 years and you did not pay. Ayaw mo lumayas, follow the third paragraph there. It will issue the order and direct
bayaran ka pa? There is something wrong there already. I think the RTC to enforce the judgment.
that is the factor eh. Now, you should correlate this with Rule 39 Sections 1 and 2:
So the SC said that it is too unfair for the landowner still to be
required to pay. Imagine they stayed there for 28 years, hindi pa
nagbayad. I think those are the factors. So in other words, equity
bah! So the Court has to look for a reason to justify. Ang 243akita
is plain error – when you do not know how to apply the law, then
it is plain error. But actually, that should be an assigned error. It
is a very interesting case.
Section 9. Promulgation and notice of

judgment. — After the judgment or final
resolution and dissenting or separate opinions,
if any, are signed by the Justices taking part,
they shall be delivered for filing to the clerk
who shall indicate thereon the date of
promulgation and cause true copies thereof to
be served upon the parties or their counsel. (n)
Section 10. Entry of judgments and final

resolutions. — If no appeal or motion for new
trial or reconsideration is filed within the time
provided in these Rules, the judgment or final
resolution shall forthwith be entered by the
clerk in the book of entries of judgments. The
date when the judgment or final resolution
becomes executory shall be deemed as the
date of its entry. The record shall contain the
dispositive part of the judgment or final
resolution and shall be signed by the clerk, with
a certificate that such judgment or final
resolution has become final and executory. (2a,
R36)
Section 11. Execution of judgment. — Except

where the judgment or final order or
resolution, or a portion thereof, is ordered to
be immediately executory, the motion for its
execution may only be filed in the proper court
after its entry.
In original actions in the Court of Appeals, its
writ of execution shall be accompanied by a
certified true copy of the entry of judgment or
final resolution and addressed to any
appropriate officer for its enforcement.
In appealed cases, where the motion for
execution pending appeal is filed in the Court of
Appeals at a time that it is in possession of the
original record or the record on appeal, the
resolution granting such motion shall be
transmitted to the lower court from which the
case originated, together with a certified true
copy of the judgment or final order to be
executed, with a directive for such court of
origin to issue the proper writ for its
enforcement. (n)
243
Amilhamja, Adj.
RULE 52
Motion for Reconsideration
Section 1. Period for filing. — A party may file a

motion for reconsideration of a judgment or
final resolution within fifteen (15) days from
notice thereof, with proof of service on the
adverse party. (n)
Q: Can a party file a motion for reconsideration of a CA decision?

A: YES. That is very obvious. (Section 1)
Section 2. Second motion for reconsideration.

— No second motion for reconsideration of a
judgment or final resolution by the same party
shall be entertained. (n)
Q: Can you file more than one motion for reconsideration?

A: NO. No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained. (Section
2) There is no such thing as second motion for reconsideration.
Section 2 of Rule 52 is also in accord with Section 11 of the
Judiciary law. Section 11 of the Judiciary law governs how may
times you can file a motion for reconsideration in the CA.
BP 129, Section 11. Quorum -
“xxxx A motion for reconsideration of its decision
or final resolution shall be resolved by the Court
within ninety (90) days from the time it is
submitted for resolution and no second motion
for reconsideration from the same party shall be
entertained.”
Under par. (3), the CA has 90 days from the time it is submitted
for the resolution to rule on a motion for reconsideration.
Section 3. Resolution of motion. — In the Court

of Appeals, a motion for reconsideration shall
be resolved within ninety (90) days from the
date when the court declares it submitted for
resolution. (n)
The CA is given only 90 days to resolve a motion for

reconsideration.
Section 4. Stay of execution. — The pendency

of a motion for reconsideration filed on time
and by the proper party shall stay the execution
of the judgment or final resolution sought to be
reconsidered unless the court, for good
reasons, shall otherwise direct. (n)
Q: What happens when a judgment of the CA is the object of a

motion for reconsideration? What happens to the execution?
A: Stayed- it is not yet final unless the court for good reasons
shall otherwise direct like when there is a good ground to
execute pending appeal.
244
Amilhamja, Adj.
Section 4. Procedure in new trial. — Unless the

court otherwise directs, the procedure in the new
RULE 53 trial shall be the same as that granted by a
New Trial Regional Trial Court. (3a)
Q: What is the ground for new trial in CA?
A: The ground for new trial is newly discovered evidence. (Sec 1) Q: If the motion for new trial is granted, can the CA conduct the
new trial itself acting as a trial court?
Section 1. Period for filing; ground. — At any A: YES, under section 4 and under the Judiciary Law particularly
time after the appeal from the lower court has section 9, the CA can receive evidence and act as a trial court. That
been perfected and before the Court of Appeals is why it is a powerful court.
loses jurisdiction over the case, a party may file BP 129, Section 9, last paragraph:
a motion for a new trial on the ground of newly “The Court of Appeals shall have the power to try cases and
discovered evidence which could not have been conduct hearings, receive evidence and perform any and all acts
discovered prior to the trial in the court below necessary to resolve factual issues raised in cases falling within its
by the exercise of due diligence and which is of original and appellate jurisdiction, including the power to grant and
such a character as would probably change the conduct new trials or further proceedings.”
result. The motion shall be accompanied by
affidavits showing the facts constituting the
grounds therefor and the newly discovered
evidence. (1a)
The ground is newly discovered evidence similar to the second

ground for new trial in the RTC (FAME). Fraud, accident, mistake
– hindi kasali. Only newly discovered evidence is the ground
under Rule 53.
Q: Suppose the case is before the SC, can a party file a motion
for new trial on the ground of newly discovered evidence before
the SC under Rule 53 in a civil case?
A: NO. The SC said in the case of
NAVARRA vs. CA – 204 SCRA 850
HELD: The Rules of Court allows only two (2) occasions where a
party may file a motion for new trial on the ground of newly
discovered evidence. That motion may be filed only with the trial
court under Rule 37 or with the CA under Rule 53 BUT NEVER
with the SC.
“Time and again, We have stressed that the SC is not a trier of

facts. It is not a function of the SC to analyze or weigh all over
again the evidence already considered in the proceedings below.
Its jurisdiction is limited to reviewing only errors of law that may
have been committed by the lower courts.”
If there would be a motion for new trial with the SC and it would
be granted, you are converting the SC into a trial court.
Section 2. Hearing and order. — The Court of

Appeals shall consider the new evidence
together with that adduced at the trial below,
and may grant or refuse a new trial, or may
make such order, with notice to both parties, as
to the taking of further testimony, either orally
in court, or by depositions, or render such other
judgment as ought to be rendered upon such
terms as it may deem just. (2a)
Section 3. Resolution of motion. — In the Court

of Appeals, a motion for new trial shall be
resolved within ninety (90) days from the date
when the court declares it submitted for
resolution. (n)
245
Amilhamja, Adj.
RULE 54
Internal Business
Section 1. Distribution of cases among

divisions. — All the cases of the Court of
Appeals shall be allotted among the different
divisions thereof for hearing and decision. The
Court of Appeals, sitting en banc, shall make
proper orders or rules to govern the allotment
of cases among the different divisions, the
constitution of such divisions, the regular
rotation of Justices among them, the filing of
vacancies occurring therein, and other matters
relating to the business of the court; and such
rules shall continue in force until repealed or
altered by the Supreme Court. (1a)
Section 2. Quorum of the court. — A majority

of the actual members of the court shall
constitute a quorum for its sessions en banc.
Three members shall constitute a quorum for
the sessions of a division. The affirmative votes
of the majority of the members present shall be
necessary to pass a resolution of the court en
banc. The affirmative votes of three members
of a division shall be necessary for the
pronouncement of a judgment or final
resolution, which shall be reached in
consultation before the writing of the opinion
by any member of the division. (Sec. 11, first
par. of BP Blg. 129, as amended by Sec. 6 of EO
33). (3a)
246
Amilhamja, Adj.
RULE 55
Publications of Judgments and Final
Resolutions
The decisions of the CA must be published. Kung wala sa
Philippine Reports, nasa Court of Appeals Reports. They call that
CARA (Court of Appeals Reports Annotated).
Section 1. Publication. — The judgments and

final resolutions of the court shall be published
in the Official Gazette and in the Reports
officially authorized by the court in the
language in which they have been originally
written, together with the syllabi therefor
prepared by the reporter in consultation with
the writers thereof. Memoranda of all other
judgments and final resolutions not so
published shall be made by the reporter and
published in the Official Gazette and the
authorized reports. (1a)
Section 2. Preparation of opinions for

publication. — The reporter shall prepare and
publish with each reported judgment and final
resolution a concise synopsis of the facts
necessary for a clear understanding of the case,
the names of counsel, the material and
controverted points involved, the authorities
cited therein, and a syllabus which shall be
confined to points of law. (Sec. 22a, R.A. No.
296) (n)
Section 3. General make-up of volumes. — The

published decisions and final resolutions of the
Supreme Court shall be called "Philippine
Reports," while those of the Court of Appeals
shall be known as the "Court of Appeals
Reports." Each volume thereof shall contain a
table of the cases reported and the cases cited
in the opinions, with a complete alphabetical
index of the subject matters of the volume. It
shall consist of not less than seven hundred
pages printed upon good paper, well bound
and numbered consecutively in the order of the
volumes published. (Sec. 23a, R.A. No. 296) (n)
Powers and Functions of the Supreme Court:

1) Adjudication
2) Discipline
3) Rule-Making
247
Amilhamja, Adj.
Procedure In The Supreme Court by Certiorari.

RULE 56 Please connect this with Rule 45, Section 9:
A. Original Cases Rule 45, Sec. 9. Rule applicable to both civil and criminal cases.- The
This is an entirely new provision. In the SC, there are 2 types of mode of appeal prescribed in this rule shall be applicable to both
cases – ORIGINAL and APPEALED. The SC has both the original civil and criminal cases except in criminal cases where the penalty
and appellate jurisdiction. imposed is death, reclusion; perpetua or life imprisonment.
Rule 56, Sec. 4. Procedure.- The appeal shall be governed by and
What are the original cases cognizable by the SC? disposed of in accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections l,2, and 5 to 11 of Rule 51,
52 and this rule.
Section 1. Original cases cognizable. — Only Q: What are the grounds for dismissal of an appeal before the SC?
petitions for certiorari, prohibition, mandamus, A: Sec. 5
quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary Section 4. Procedure. — The appeal shall be
and attorneys, and cases affecting governed by and disposed of in accordance with
ambassadors, other public ministers and the applicable provisions of the Constitution,
consuls may be filed originally in the Supreme laws, Rules 45, 48, sections 1, 2, and 5 to 11 of Rule
Court. (n) 51, 52 and this Rule. (n)
You know them no? – Certiorari, prohibition, mandamus, quo
warranto, habeas corpus, cases affecting ambassadors other Section 5. Grounds for dismissal of appeal. — The
public ministers and consuls – nasa Constitution din yan. This is appeal may be dismissed motu proprio or on
only a repetition of Article VIII, Section 5 (1) of the Constitution. motion of the respondent on the following
Aside from that, the Rules of Court give the SC authority to hear grounds:
disciplinary proceedings against members of the judiciary, (a) Failure to take the appeal within the
disbarment or removal of judges. SC man yan ba! And they are reglementary period;
governed specially for disbarment by Rule 139-B of the Rules of (b) Lack of merit in the petition;
Court. (c) Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for costs;
Section 2. Rules applicable. — The procedure in (d) Failure to comply with the requirements
original cases for certiorari, prohibition, regarding proof of service and contents of and the
mandamus, quo warranto and habeas corpus documents which should accompany the petition;
shall be in accordance with the applicable (e) Failure to comply with any circular, directive or
provisions of the Constitution, laws, and Rules order of the Supreme Court without justifiable
46, 48, 49, 51, 52 and this Rule, subject to the cause;
following provisions: (f) Error in the choice or mode of appeal; and
a) All references in said Rules to the Court of (g) The fact that the case is not appealable to the
Appeals shall be understood to also apply to Supreme Court. (n)
the Supreme Court;
b) The portions of said Rules dealing strictly Section 6. Disposition of improper appeal. —
with and specifically intended for appealed Except as provided in section 3, Rule 122 regarding
cases in the Court of Appeals shall not be appeals in criminal cases where the penalty
applicable; and imposed is death, reclusion perpetua or life
c) Eighteen (18) clearly legible copies of the imprisonment, an appeal taken to the Supreme
petition shall be filed, together with proof of Court by notice of appeal shall be dismissed.
service on all adverse parties. An appeal by certiorari taken to the Supreme
The proceedings for disciplinary action against Court from the Regional Trial Court submitting
members of the judiciary shall be governed by issues of fact may be referred to the Court of
the laws and Rules prescribed therefor, and Appeals for decision or appropriate action. The
those against attorneys by Rules 139-B, as determination of the Supreme Court on whether
amended. (n) or not issues of fact are involved shall be final. (n)
B. Appealed Cases Section 7. Procedure if opinion is equally divided.

— Where the court en banc is equally divided in
Section 3. Mode of appeal. — An appeal to the opinion, or the necessary majority cannot be had,
Supreme Court may be taken only by a petition the case shall again be deliberated on, and if after
for review on certiorari, except in criminal such deliberation no decision is reached, the
cases where the penalty imposed is death, original action commenced in the court shall be
reclusion perpetua or life imprisonment. (n) dismissed, in appealed cases, the judgment or
order appealed from shall stand affirmed; and on
There is only one way of appeal to the SC. The only mode of all incidental matters, the petition or motion shall
appeal recognized is Petition for Review by Certiorari under Rule be denied.
45, except in criminal cases when the penalty imposed by the
RTC is death penalty, reclusion perpatua or life imprisonment
where only ordinary appeal (under Rule 41) is required. Outside
of that, the only mode of appeal to the SC is Petition for Review
248
Amilhamja, Adj.
Provisional remedies (b) In an action for money or property embezzled

Preliminary attachment (Rule 57) or fraudulently misapplied or converted to his
Preliminary injunction (Rule 58) own use by a public officer, or an officer of a
Receivership(Rule 59) corporation, or an attorney, factor, broker, agent,
Delivery of personal property (Rule 60) or clerk, in the course of his employment as such,
Support pendente lite (Rule 61) or by any other person in a fiduciary capacity, or
for a willful violation of duty;
Provisional Remedies (c) In an action to recover the possession of
RULE 57 property unjustly or fraudulently taken, detained
Preliminary Attachment or converted, when the property, or any part
thereof, has been concealed, removed, or
Preliminary attachment disposed of to prevent its being found or taken by
-It is a provisional remedy issued by the court where the action the applicant or an authorized person;
is pending levying the property or properties of the defendant (d) In an action against a party who has been guilty
to serve as security for whatever judgment the said court might of a fraud in contracting the debt or incurring the
render in favor of the plaintiff. obligation upon which the action is brought, or in
- It is provisional because it constitutes temporary measure the performance thereof;
availed of during the pendency of action and they are ancillary (e) In an action against a party who has removed
because it is dependent upon the main action or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
Will the writ of preliminary attachment be dissolved if the (f) In an action against a party who does not reside
parties had already entered into compromise agreement? and is not found in the Philippines, or on whom
-NO. summons may be served by publication. (1a)
-The parties to the compromise agreement should not be
deprived of the protection provided by an attachment lien. If Who may apply for preliminary attachment?
the rule were otherwise, it is easier for the debtor whose 1. Plaintiff-
property was attached to have the lien released by entering 2. Any proper party:
into a compromise agreement without the intention of actually a. Defendant with respect to his counterclaim
honoring it (Lim, Jr., vs. spouses Lazaro, G.R. No. 185734, July 3, b. Co-party with respect to his cross-claim
2013). c. Third party with respect to his 3rd party complaint
What is the nature of attachment? At what stage may preliminary attachment be applied?
-Attachment is in the nature of a proceeding quasi in rem -At the commencement of the action
(Banco-Espanol vs. Palanca, 37 Phil. 921, 928) although - Any time before entry of judgment
sometimes referred to as action in rem (Valdevieso vs.
Damalerio, 421 SCRA 664, 671). What are the cases where preliminary attachment is proper?
-This classification becomes relevant only when the defendant -not in all cases you can apply for the writ of issuance of
does not appear in the action as when the defendant is a non- preliminary attachment; only Sec. 1 cases should this apply
resident who, at the same time, is outside of the Philippines.
-if he appears, it becomes in personam A. Recovery of a specified amount of money or damages.
◦ Section1(a), Rule 57 – In an action for the recovery of a specified
What is the purpose of preliminary attachment? amount of money or damages, other than moral and exemplary,
-to secure judgment VS. paper victory on a cause of action arising from law, contract, quasi-contract,
-Preliminary attachment is designed to seize the property of delict or quasi-delict against a party who is about to depart from
the debtor before final judgment and put the same in custodia the Philippines with intent to defraud his creditors.
legis even while the action is pending for the satisfaction of a ◦ K.O. Glass Construction vs. Valenzuela, 116 SCRA 563 – about to
later judgment and to acquire jurisdiction over the property in depart with intent to defraud is required for the issuance.
those instances where personal or substituted services of
summons on the defendant cannot be effected. (Philippine B. Action for money or property embezzled.
Commercial International Bank vs. Alejandro, 533 SCRA 738). ◦ Section1(B), Rule 57 – In an action for money or property
embezzled or fraudulently misapplied or converted to his own use
Section 1. Grounds upon which attachment by a public officer, or an officer of a corporation, or an attorney,
may issue. — At the commencement of the factor, broker, agent, or clerk, in the course of his employment as
action or at any time before entry of judgment, such, or by any other person in a fiduciary capacity, or for a willful
a plaintiff or any proper party may have the violation of duty.
property of the adverse party attached as
security for the satisfaction of any judgment C. Action for recovery of property unjustly or fraudulently taken.
that may be recovered in the following cases: ◦ Section1(C), Rule 57 – In an action to recover the possession of
(a) In an action for the recovery of a specified property unjustly or fraudulently taken, detained or converted,
amount of money or damages, other than when the property, or any part thereof, has been concealed,
moral and exemplary, on a cause of action removed, or disposed of to prevent its being found or taken by
arising from law, contract, quasi-contract, the applicant or an authorized person.
delict or quasi-delict against a party who is
about to depart from the Philippines with D. Fraud in contracting or performing an obligation.
intent to defraud his creditors; ◦ Section1(D), Rule 57 – In an action against a party who has been
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guilty of a fraud in contracting the debt or incurring the

obligation upon which the action is brought, or in the
performance thereof. Section 3. Affidavit and bond required. — An
-Fraud Dolo causante determines or is the essential cause of order of attachment shall be granted only when it
the consent; fraud in order to secure an obligation appears by the affidavit of the applicant, or of
-Fraud dolo incidente refers only to some particular or accident some other person who personally knows the
of the obligation; fraud in the performance of the obligation = facts, that a sufficient cause of action exists, that
obligation is valid but entitled to damages the case is one of those mentioned in section 1
hereof, that there is no other sufficient security
E. Removal or disposal of property with intent to defraud. for the claim sought to be enforced by the action,
◦ Section1(E), Rule 57 – In an action against a party who has and that the amount due to the applicant, or the
removed or disposed of his property, or is about to do so, with value of the property the possession of which he
intent to defraud his creditors. is entitled to recover, is as much as the sum for
which the order is granted above all legal
F. Action against non-residents or on whose summons may be counterclaims. The affidavit, and the bond
served by publication. required by the next succeeding section, must be
◦ Section1(F), Rule 57 – In an action against a party who does duly filed with the court before the order issues.
not reside and is not found in the Philippines, or on whom (3a)
summons may be served by publication.
◦ Read this in relation to Section 14, 15 and 16, Rule 14 of the Section 4. Condition of applicant's bond. — The
Rules of Court. party applying for the order must thereafter give
a bond executed to the adverse party in the
Requisites for issuance of preliminary writ of attachment amount fixed by the court in its order granting the
1. Applicant's bond must be filed issuance of the writ, conditioned that the latter
2. Affidavit of merit will pay all the costs which may be adjudged to the
◦ Sufficient cause of action exists; adverse party and all damages which he may
◦ The case is one of those mentioned in Section 1 hereof; sustain by reason of the attachment, if the court
◦ There is no other sufficient security for the claim sought to be shall finally adjudge that the applicant was not
enforced by the action; and entitled thereto. (4a)
◦ The amount due to the applicant, or the value of the property
the possession of which he is entitled to recover, is as much as Section 5. Manner of attaching property. — The
the sum for which the order is granted above all legal sheriff enforcing the writ shall without delay and
counterclaims. = you cannot attach what is beyond with all reasonable diligence attach, to await
judgment and execution in the action, only so
much of the property in the Philippines of the
Section 2. Issuance and contents of order. — An party against whom the writ is issued, not exempt
order of attachment may be issued either ex from execution, as may be sufficient to satisfy the
parte or upon motion with notice and hearing applicant's demand, unless the former makes a
by the court in which the action is pending, or deposit with the court from which the writ is
by the Court of Appeals or the Supreme Court, issued, or gives a counter-bond executed to the
and must require the sheriff of the court to applicant, in an amount equal to the bond fixed by
attach so much of the property in the the court in the order of attachment or to the
Philippines of the party against whom it is value of the property to be attached, exclusive of
issued, not exempt from execution, as may be costs. No levy on attachment pursuant to the writ
sufficient to satisfy the applicant's demand, issued under section 2 hereof shall be enforced
unless such party makes deposit or gives a bond unless it is preceded, or contemporaneously
as hereinafter provided in an amount equal to accompanied, by service of summons, together
that fixed in the order, which may be the with a copy of the complaint, the application for
amount sufficient to satisfy the applicant's attachment the applicant's affidavit and bond,
demand or the value of the property to be and the order and writ of attachment, on the
attached as stated by the applicant, exclusive defendant within the Philippines.
of costs. Several writs may be issued at the The requirement of prior or contemporaneous
same time to the sheriffs of the courts of service of summons shall not apply where the
different judicial regions. (2a) summons could not be served personally or by
substituted service despite diligent efforts, or the
How may preliminary writ of attachment be issued? defendant is a resident of the Philippines
It may be issued: temporarily absent therefrom, or the defendant is
• Ex parte; a non-resident of the Philippines, or the action is
• Upon motion with notice and hearing one in rem or quasi in rem. (5a)
• On appeal before the Court of Appeals or the Supreme Court
Is it necessary for the court to have acquired jurisdiction over the
Stages in the grant of preliminary attachment person of the defendant when the writ is implemented?
-Court issues the order granting the application -Yes, because under the rules: “No levy on attachment pursuant
-Writ is attachment is issued pursuant to an order to the writ issued under Section 2 hereof shall be enforced unless
-The writ is implemented it is preceded, or contemporaneously accompanied, by service of
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summons, together with a copy of the complaint, the applicant, the adverse party, or the person by
application for attachment, the applicant's affidavit and bond, whom the property is held or in whose name it
and the order and writ of attachment, on the defendant within stands in the records. If the attachment is not
the Philippines.” (Sec. 5, Rule 57) claimed on the entire area of the land covered by
-Thus, this is called prior or contemporaneous service of the certificate of title, a description sufficiently
summons. accurate for the identification of the land or
interest to be affected shall be included in the
Q: Pwede ba mauna ang writ before summons? NO; pwede registration of such attachment;
bang mauna summons before writ? YES; pwede sabay? YES. (b) Personal property capable of manual delivery,
by taking and safely keeping it in his custody, after
Are there exceptions to prior or contemporaneous service of issuing the corresponding receipt therefor.
summons? (c) Stocks or shares, or an interest in stocks or
-Yes, under the rules: “The requirement of prior or shares, of any corporation or company, by leaving
contemporaneous service of summons shall not apply with the president or managing agent thereof, a
where the summons could not be served copy of the writ, and a notice stating that the stock
1. personally or by substituted service despite diligent efforts, or interest of the party against whom the
2. the defendant is a resident of the Philippines attachment is issued is attached in pursuance of
temporarily absent therefrom, or such writ;
3. the defendant is a non-resident of the Philippines, or (d) Debts and credits, including bank deposits,
4. the action is one in rem or quasi in rem.”(Sec. 5, Rule 57) financial interest, royalties, commissions and
other personal property not capable of manual
delivery, by leaving with the person owing such
Section 6. Sheriff's return. — After enforcing debts, or having in his possession or under his
the writ, the sheriff must likewise without control, such credits or other personal property,
delay make a return thereon to the court from or with his agent, a copy of the writ, and notice
which the writ issued, with a full statement of that the debts owing by him to the party against
his proceedings under the writ and a complete whom attachment is issued, and the credits and
inventory of the property attached, together other personal property in his possession, or
with any counter-bond given by the party under his control, belonging to said party, are
against whom attachment is issued, and serve attached in pursuance of such writ;
copies thereof on the applicant. (6a) (e) The interest of the party against whom
attachment is issued in property belonging to the
Section 7. Attachment of real and personal estate of the decedent, whether as heir, legatee,
property; recording thereof. — Real and or devisee, by serving the executor or
personal property shall be attached by the administrator or other personal representative of
sheriff executing the writ in the following the decedent with a copy of the writ and notice
manner: that said interest is attached. A copy of said writ
(a) Real property, or growing crops thereon, or of attachment and of said notice shall also be filed
any interest therein, standing upon the record in the office of the clerk of the court in which said
of the registry of deeds of the province in the estate is being settled and served upon the heir,
name of the party against whom attachment is legatee or devisee concerned.
issued, or not appearing at all upon such If the property sought to be attached is in custodia
records, or belonging to the party against legis, a copy of the writ of attachment shall be
whom attachment is issued and held by any filed with the proper court or quasi-judicial
other person, or standing on the records of the agency, and notice of the attachment served upon
registry of deeds in the name of any other the custodian of such property. (7a)
person, by filing with the registry of deeds a
copy of the order, together with a description How is real property attached?
of the property attached, and a notice that it is - It is attached by the sheriff by filing with the RD a copy of the
attached, or that such real property and any order together with a description of the property attached, and a
interest therein held by or standing in the name notice that it is attached leaving a copy of such order, description,
of such other person are attached, and by and notice with the occupant of the property, if any.
leaving a copy of such order, description, and -Where the property is registered under the Land Registration
notice with the occupant of the property, if any, Act, the notice shall contain a reference to the number of the
or with such other person or his agent if found certificate of title, the volume and page in the registration book
within the province. Where the property has where the certificate is registered, and the registered owner or
been brought under the operation of either the owners thereof (Section 7(b), Rule 57).
Land Registration Act or the Property
Registration Decree, the notice shall contain a How is personal property attached?
reference to the number of the certificate of -Personal property capable of manual delivery, by taking and
title, the volume and page in the registration safely keeping it in his custody, after issuing the corresponding
book where the certificate is registered, and receipt therefor (Section 7(c), Rule 57).
the registered owner or owners thereof.
The registrar of deeds must index attachments How are bank deposits and other credits attached?
filed under this section in the names of the - By leaving with the person owing such debts, or having in his
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possession or under his control, such credits or other personal having in his possession or under his control any
property, or with his agent, a copy of the writ, and notice that credit or other personal property belonging to
the debts owing by him to the party against whom attachment such party, may be required to attend before the
is issued, and the credits and other personal property in his court in which the action is pending, or before a
possession, or under his control, belonging to said party, are commissioner appointed by the court, and be
attached in pursuance of such writ (Section 7(d), rule 57). examined on oath respecting the same. The party
whose property is attached may also be required
How is interest belonging to estate of the decedent attached? to attend for the purpose of giving information
-By serving the executor or administrator or other personal respecting his property, and may be examined on
representative of the decedent with a copy of the writ and oath. The court may, after such examination,
notice that said interest is attached. A copy of said writ of order personal property capable of manual
attachment and of said notice shall also be filed in the office of delivery belonging to him, in the possession of the
the clerk of the court in which said estate is being settled and person so required to attend before the court, to
served upon the heir, legatee or devisee concerned. (Section be delivered to the clerk of the court or sheriff on
7(e), Rule 57). such terms as may be just, having reference to any
lien thereon or claim against the same, to await
May a property under custodia legis be attached? the judgment in the action. (10a)
-Yes. Under the Rules: If the property sought to be attached in
custodia legis, a copy of the writ of attachment shall be filed Section 11. When attached property may be sold
with the proper court or quasi-judicial agency, and notice of after levy on attachment and before entry of
the attachment served upon the custodian of such property judgment. — Whenever it shall be made to appear
(Sec. 7, Rule 57). to the court in which the action is pending, upon
hearing with notice to both parties, that the
Section 8. Effect of attachment of debts, credits property attached is perishable, or that the
and all other similar personal property. — All interests of all the parties to the action will be
persons having in their possession or under subserved by the sale thereof, the court may order
their control any credits or other similar such property to be sold at public auction in such
personal property belonging to the party manner as it may direct, and the proceeds of such
against whom attachment is issued, or owing sale to be deposited in court to abide the
any debts to him, at the time of service upon judgment in the action. (11a)
them of the copy of the writ of attachment and
notice as provided in the last preceding section, Section 12. Discharge of attachment upon giving
shall be liable to the applicant for the amount counter-bond. — After a writ of attachment has
of such credits, debts or other similar personal been enforced, the party whose property has
property, until the attachment is discharged, or been attached, or the person appearing on his
any judgment recovered by him is satisfied, behalf, may move for the discharge of the
unless such property is delivered or attachment wholly or in part on the security given.
transferred, or such debts are paid, to the clerk, The court shall, after due notice and hearing,
sheriff, or other proper officer of the court order the discharge of the attachment if the
issuing the attachment. (8a) movant makes a cash deposit, or files a counter-
bond executed to the attaching party with the
Section 9. Effect of attachment of interests in clerk of the court where the application is made,
property belonging to the estate of a decedent. in an amount equal to that fixed by the court in
— The attachment of the interest of an heir, the order of attachment, exclusive of costs. But if
legatee, or devisee in the property belonging to the attachment is sought to be discharged with
the estate of a decedent shall not impair the respect to a particular property, the counter-bond
powers of the executor, administrator, or other shall be equal to the value of that property as
personal representative of the decedent over determined by the court. In either case, the cash
such property for the purpose of deposit or the counter-bond shall secure the
administration. Such personal representative, payment of any judgment that the attaching party
however, shall report the attachment to the may recover in the action. A notice of the deposit
court when any petition for distribution is filed, shall forthwith be served on the attaching party.
and in the order made upon such petition, Upon the discharge of an attachment in
distribution may be awarded to such heir, accordance with the provisions of this section, the
legatee or devisee, but the property attached property attached, or the proceeds of any sale
shall be ordered delivered to the sheriff making thereof, shall be delivered to the party making the
the levy, subject to the claim of such heir, deposit or giving the counter-bond, or to the
legatee, or devisee, or any person claiming person appearing on his behalf, the deposit or
under him. (9a) counter-bond aforesaid standing in place of the
property so released. Should such counter-bond
Section 10. Examination of party whose for any reason be found to be or become
property is attached and persons indebted to insufficient, and the party furnishing the same fail
him or controlling his property; delivery of to file an additional counter-bond, the attaching
property to sheriff. — Any person owing debts party may apply for a new order of attachment.
to the party whose property is attached or (12a)
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How may a writ of attachment be discharged? filed. Nothing herein contained shall prevent such
1. By filing a motion to discharge the attachment and making a claimant or any third person from vindicating his
deposit or counter-bond in an amount equal to that fixed by claim to the property, or prevent the attaching
the court or value of the property attached (Sec. 12, Rule 57) party from claiming damages against a third-party
2. By filing a motion to set aside or discharge the attachment claimant who filed a frivolous or plainly spurious
on other grounds without need of filing a counterbond. claim, in the same or a separate action.
When the writ of attachment is issued in favor of
What are grounds which may be invoked in the motion to the Republic of the Philippines, or any officer duly
discharge attachment? representing it, the filing of such bond shall not be
- Attachment was improperly or irregularly issued required, and in case the sheriff is sued for
- Bond is insufficient damages as a result of the attachment, he shall be
- Attachment is excessive with respect to the excess represented by the Solicitor General, and if held
- Property is exempt from execution liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer
Section 13. Discharge of attachment on other out of the funds to be appropriated for the
grounds. — The party whose property has been purpose. (14a)
ordered attached may file a motion with the
court in which he action is pending, before or Supposing sheriff attached the property of the third party, what
after levy or even after the release of the are the remedies of the latter if any?
attached property, for an order to set aside or 1. He may avail the remedy of terceria (Sec. 14, Rule 57).
discharge the attachment on the ground that Can be found in rule 39, If your property is attached but
the same was improperly or irregularly issued you are not a party to the case, you will execute an affidavit of 3 rd
or enforced, or that the bond is insufficient. If party claim to the sheriff and file it before the sheriff. The sheriff
the attachment is excessive, the discharge shall is not bound to proceed to proceed with the attachment. He will
be limited to the excess. If the motion be made call the plaintiff. Now if the plaintiff executes the bond for the
on affidavits on the part of the movant but not supposed owner of the property, the sheriff can proceed without
otherwise, the attaching party may oppose the the attachment.
motion by counter-affidavits or other evidence 2. The third party-claimant may also invoke the court’s authority
in addition to that on which the attachment in the same case and move for a summary hearing on his claim. If
was made. After due notice and hearing, the his claim is meritorious, the court shall lift the attachment (Ching
court shall order the setting aside or the vs. CA, 423 SCRA 356)
corresponding discharge of the attachment if it 3. The third party may file a separate civil action to nullify the levy
appears that it was improperly or irregularly (Ching, id.)
issued or enforced, or that the bond is
insufficient, or that the attachment is Section 15. Satisfaction of judgment out of
excessive, and the defect is not cured property attached, return of sheriff. — If
forthwith. (13a) judgment be recovered by the attaching party and
execution issue thereon, the sheriff may cause the
Section 14. Proceedings where property judgment to be satisfied out of the property
claimed by third person. — If the property attached, if it be sufficient for that purpose in the
attached is claimed by any person other than following manner:
the party against whom attachment had been (a) By paying to the judgment obligee the
issued or his agent, and such person makes an proceeds of all sales of perishable or other
affidavit of his title thereto, or right to the property sold in pursuance of the order of the
possession thereof, stating the grounds of such court, or so much as shall be necessary to satisfy
right or title, and serves such affidavit upon the the judgment;
sheriff while the latter has possession of the (b) If any balance remains due, by selling so much
attached property, and a copy thereof upon the of the property, real or personal, as may be
attaching party, the sheriff shall not be bound necessary to satisfy the balance, if enough for that
to keep the property under attachment, unless purpose remain in the sheriff's hands, or in those
the attaching party or his agent, on demand of the clerk of the court;
the sheriff, shall file a bond approved by the (c) By collecting from all persons having in their
court to indemnify the third-party claimant in a possession credits belonging to the judgment
sum not less than the value of the property obligor, or owing debts to the latter at the time of
levied upon. In case of disagreement as to such the attachment of such credits or debts, the
value, the same shall be decided by the court amount of such credits and debts as determined
issuing the writ of attachment. No claim for by the court in the action, and stated in the
damages for the taking or keeping of the judgment, and paying the proceeds of such
property may be enforced against the bond collection over to the judgment obligee.
unless the action therefor is filed within one The sheriff shall forthwith make a return in writing
hundred twenty (120) days from the date of the to the court of his proceedings under this section
filing of the bond. and furnish the parties with copies thereof. (15a)
The sheriff shall not be liable for damages for
the taking or keeping of such property to any
such third-party claimant, if such bond shall be
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Section 16. Balance due collected upon an included in the judgment on the main case.
execution; excess delivered to judgment If the judgment of the appellate court be
obligor. — If after realizing upon all the favorable to the party against whom the
property attached, including the proceeds of attachment was issued he must claim damages
any debts or credits collected, and applying the sustained during the pendency of the appeal by
proceeds to the satisfaction of the judgment filing an application in the appellate court, with
less the expenses of proceedings upon the notice to the party in whose favor the attachment
judgment any balance shall remain due, the was issued or his surety or sureties, before the
sheriff must proceed to collect such balance as judgment of the appellate court becomes
upon ordinary execution. Whenever the executory. The appellate court may allow the
judgment shall have been paid, the sheriff, application to be heard and decided by the trial
upon reasonable demand, must return to the court.
judgment obligor the attached property Nothing herein contained shall prevent the party
remaining in his hands, and any proceeds of the against whom the attachment was issued from
sale of the property attached not applied to the recovering in the same action the damages
judgment. (16a) awarded to him from any property of the
attaching party not exempt from execution should
Section 17. Recovery upon the counter-bond. the bond or deposit given by the latter be
— When the judgment has become executory, insufficient or fail to fully satisfy the award. (20a)
the surety or sureties on any counter-bond
given pursuant to the provisions of this Rule to May a party whose property was attached recover damages from
secure the payment of the judgment shall the attaching party though the
become charged on such counter-bond and former lost the case?
bound to pay the judgment obligee upon Yes. This is implied from Section 20, Rule 57 which provides that:
demand the amount due under the judgment, “An application for damages on account of improper, irregular or
which amount may be recovered from such excessive attachment must be filed before the trial or before
surety or sureties after notice and summary appeal is perfected or before the judgment becomes executory,
hearing in the same action. (17a) with due notice to the attaching party and his surety or sureties.”
(Carlos vs. Sandoval, 471 SCRA 266, 289-290)
Section 18. Disposition of money deposited. —
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under
the direction of the court to the satisfaction of
any judgment rendered in favor of the
attaching party, and after satisfying the
judgment the balance shall be refunded to the
depositor or his assignee. If the judgment is in
favor of the party against whom attachment
was issued, the whole sum deposited must be
refunded to him or his assignee. (18a)
Section 19. Disposition of attached property

where judgment is for party against whom
attachment was issued. — If judgment be
rendered against the attaching party, all the
proceeds of sales and money collected or
received by the sheriff, under the order of
attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom
attachment was issued, and the order of
attachment discharged. (19a)
Section 20. Claim for damages on account of

improper, irregular or excessive attachment. —
An application for damages on account of
improper, irregular or excessive attachment
must be filed before the trial or before appeal
is perfected or before the judgment becomes
executory, with due notice to the attaching
party and his surety or sureties setting forth the
facts showing his right to damages and the
amount thereof. Such damages may be
awarded only after proper hearing and shall be
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RULE 58
Preliminary Injunction Illustration
-An appeal from the judgment of CA may be appealed through
Section 1. Preliminary injunction defined; petition for review under Rule 45. The petition may include prayer
classes. — A preliminary injunction is an order for preliminary injunction. Since it is the SC which has jurisdiction
granted at any stage of an action or proceeding over the appeal, it has also jurisdiction to issue writ of preliminary
prior to the judgment or final order, requiring a injunction
party or a court, agency or a person to refrain -Under Section 20, Rule 70, the plaintiff may appeal the decision
from a particular act or acts. It may also require to the RTC. Here, it is the RTC which has jurisdiction to issue writ
the performance of a particular act or acts, in of preliminary injunction
which case it shall be known as a preliminary - If Petition for Certiorari is pending with the CA, it is the CA which
mandatory injunction. (1a) has jurisdiction to issue writ of preliminary injunction.
Preliminary injunction Section 3. Grounds for issuance of preliminary

- is an order granted at any stage of an action, prior to the injunction. — A preliminary injunction may be
judgment or final order, requiring a party, court, agency or granted when it is established:
person to perform or refrain from performing an act or acts. (a) That the applicant is entitled to the relief
(Sec. 1, Rule 58) demanded, and the whole or part of such relief
consists in restraining the commission or
2 kinds of preliminary injunction: continuance of the act or acts complained of, or in
1. Preliminary mandatory injunction – order to require the requiring the performance of an act or acts either
doing of an act for a limited period or perpetually;
2. Preliminary prohibitory injunction – order to refrain from (b) That the commission, continuance or non-
doing an act performance of the act or acts complained of
during the litigation would probably work
What is the purpose of preliminary injunction? injustice to the applicant; or
- A writ of injunction is issued by the court to prevent (c) That a party, court, agency or a person is doing,
threatened or continuous irreparable injury to parties before threatening, or is attempting to do, or is procuring
their claims can be thoroughly studied and adjudicated and or suffering to be done some act or acts probably
during the pendency of the action (MIAA vs. Rivera Village in violation of the rights of the applicant
Lessee Homeowners’ Assn., Inc., 471 SCRA 358). Hence, in respecting the subject of the action or proceeding,
order to protect the rights of the parties before the main action and tending to render the judgment ineffectual.
is resolved, there is need to preserve the status quo. (3a)
What is the status quo? What are the grounds for the issuance of a preliminary
-It is defined as the last actual, peaceful, and uncontested injunction?
status that precedes the actual controversy, that which is
existing at the time of the filing of the case (Spouses Dulnuan Requisites before court can issue preliminary injunction
vs. MBTC, July 8, 2015.) (1) there exists a clear and unmistakable right to be protected;
(2) this right is directly threatened by an act sought to be
Mandatory vs. Prohibitory enjoined;
MANDATORY (3) the invasion of the right is material and substantial; and
-When on is required to perform an act (4) there is an urgent and paramount necessity for the writ to
-The act has already been performed and this act prevent serious and irreparable damage (Sps. Dulnuan vs. MBTC,
violated the rights of another. Since the act has already been July 8, 2015).
performed, the purpose of the injunction is to restore the
status quo -The issuance of injunction is NOT the general rule. IT is the
EXCEPTION!
PROHIBITORY
-When one is required to refrain from doing an act Clear and Unmistakable Legal Right
- The act has not yet been performed because it is restrained or Thunder Security and Investigation Agency vs. NFA, 654 SCRA 714
prevented by injunction. Its purpose is to prevent a future or – Court cannot enjoin the termination of an employee whose
threatened injury contract of employment has already expired. – walang clear and
unmistakable right
Section 2. Who may grant preliminary -Sps. Duluan vs. MBTC, July 8, 2015 – the Court cannot enjoin the
injunction. — A preliminary injunction may be bank from possessing foreclosed property even during the period
granted by the court where the action or for redemption.
proceeding is pending. If the action or
proceeding is pending in the Court of Appeals Section 4. Verified application and bond for
or in the Supreme Court, it may be issued by preliminary injunction or temporary restraining
said court or any member thereof. (2a) order. — A preliminary injunction or temporary
restraining order may be granted only when:
Which court should issue writ of preliminary injunction? (a) The application in the action or proceeding is
-It shall be issued by the court where the principal action is verified, and shows facts entitling the applicant to
pending (Sec. 2, Rule 58) the relief demanded; and
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Amilhamja, Adj.
(b) Unless exempted by the court the applicant same period whether or not the preliminary
files with the court where the action or injunction shall be granted, and accordingly issue
proceeding is pending, a bond executed to the the corresponding order. (Bar Matter No. 803, 17
party or person enjoined, in an amount to be February 1998)
fixed by the court, to the effect that the However, and subject to the provisions of the
applicant will pay to such party or person all preceding sections, if the matter is of extreme
damages which he may sustain by reason of the urgency and the applicant will suffer grave
injunction or temporary restraining order if the injustice and irreparable injury, the executive
court should finally decide that the applicant judge of a multiple-sala court or the presiding
was not entitled thereto. Upon approval of the judge of a single sala court may issue ex parte a
requisite bond, a writ of preliminary injunction temporary restraining order effective for only
shall be issued. (4a) seventy-two (72) hours from issuance but he shall
(c) When an application for a writ of immediately comply with the provisions of the
preliminary injunction or a temporary next preceding section as to service of summons
restraining order is included in a complaint or and the documents to be served therewith.
any initiatory pleading, the case, if filed in a Thereafter, within the aforesaid seventy-two (72)
multiple-sala court, shall be raffled only after hours, the judge before whom the case is pending
notice to and in the presence of the adverse shall conduct a summary hearing to determine
party or the person to be enjoined. In any whether the temporary restraining order shall be
event, such notice shall be preceded, or extended until the application for preliminary
contemporaneously accompanied, by service injunction can be heard. In no case shall the total
of summons, together with a copy of the period of effectivity of the temporary restraining
complaint or initiatory pleading and the order exceed twenty (20) days, including the
applicant's affidavit and bond, upon the original seventy-two hours provided herein.
adverse party in the Philippines. In the event that the application for preliminary
However, where the summons could not be injunction is denied or not resolved within the said
served personally or by substituted service period, the temporary restraining order is
despite diligent efforts, or the adverse party is deemed, automatically vacated. The effectivity of
a resident of the Philippines temporarily absent a temporary restraining order is not extendible
therefrom or is a nonresident thereof, the without need of any judicial declaration to that
requirement of prior or contemporaneous effect and no court shall have authority to extend
service of summons shall not apply. or renew the same on the same ground for which
(d) The application for a temporary restraining it was issued.
order shall thereafter be acted upon only after However, if issued by the Court of Appeals or a
all parties are heard in a summary hearing member thereof, the temporary restraining order
which shall be conducted within twenty-four shall be effective for sixty (60) days from service
(24) hours after the sheriff's return of service on the party or person sought to be enjoined. A
and/or the records are received by the branch restraining, order issued by the Supreme Court or
selected by raffle and to which the records shall a member thereof shall be effective until further
be transmitted immediately. orders. (5a)
What are the formal requisites of the issuance of preliminary Can preliminary injunction be issued without notice and hearing?
injunction? -BIG NO! No.
1. There must be a verified application (Sec. 4(a), Rule 58). -Section 5, Rule 58 provides: “No preliminary injunction shall be
2. The applicant must post a bond (Sec.4 (b), Rule 58). granted without hearing and prior notice to the party or person
3, There must be notice and hearing (Sec. 5, Rule 58). sought to be enjoined.”
-If judge mistakenly issues without hearing = administrative case
Section 5. Preliminary injunction not granted
without notice; exception. — No preliminary Is the rule on contemporaneous service of summons applicable to
injunction shall be granted without hearing and application for preliminary injunction?
prior notice to the party or person sought to be -YES
enjoined. If it shall appear from facts shown by - When an application for a writ of preliminary injunction or a
affidavits or by the verified application that temporary restraining order is included in a complaint or any
great or irreparable injury would result to the initiatory pleading, the case, if filed in a multiple-sala court, shall
applicant before the matter can be heard on be raffled only after notice to and in the presence of the adverse
notice, the court to which the application for party or the person to be enjoined. In any event, such notice shall
preliminary injunction was made, may issue a be preceded, or contemporaneously accompanied, by service of
temporary restraining order to be effective summons, together with a copy of the complaint or initiatory
only for a period of twenty (20) days from pleading and the applicant's affidavit and bond, upon the adverse
service on the party or person sought to be party in the Philippines (Sec. 4 (c), Rule 58).
enjoined, except as herein provided. Within the
said twenty-day period, the court must order Are there exceptions?
said party or person to show cause, at a -YES
specified time and place, why the injunction -However, where the summons could not be served personally or
should not be granted, determine within the by substituted service despite diligent efforts, or the adverse
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Amilhamja, Adj.
party is a resident of the Philippines temporarily absent enforcement of CARP under the CARP law.
therefrom or is a nonresident thereof, the requirement of prior
or contemporaneous service of summons shall not apply (Sec. May criminal prosecution be restrained?
4 (c), Rule 58). General Rule: NO.
Exceptions:
What is temporary restraining order? - To afford adequate protection to the constitutional rights of the
-It is an order issued to preserve the status quo until the accused
hearing of the application for a writ of preliminary injunction - When double jeopardy is apparent
because preliminary injunction cannot be issued ex-parte - When necessary for the orderly administration of justice or to
(Bacolod Water District vs. Labayen, 446 SCRA 110). avoid oppression
-By its nature, it could be considered as a provisional remedy - Where the charges are manifestly false and motivated by lust for
within a provisional remedy because it is issued to preserved vengeance
the status quo for a limited period until the court decides to - When there is strictly no prima facie case against the accused
issue a writ of preliminary injunction and the motion to quash on that ground has been denied
May TRO be issued ex parte?

- YES Section 6. Grounds for objection to, or for motion
- If it shall appear from facts shown by affidavits or by the of dissolution of, injunction or restraining order.
verified application that great or irreparable injury would result — The application for injunction or restraining
to the applicant before preliminary injunction can be heard, order may be denied, upon a showing of its
the court to which the application for preliminary injunction insufficiency. The injunction or restraining order
was made, may issue ex parte a temporary restraining order to may also be denied, or, if granted, may be
be effective only for a period of twenty (20) days from service dissolved, on other grounds upon affidavits of the
on the party or person sought to be enjoined x x x. (Section 5, party or person enjoined, which may be opposed
Rule 58). by the applicant also by affidavits. It may further
be denied, or if granted, may be dissolved, if it
May TRO be issued by the Executive Judge? appears after hearing that although the applicant
- If the matter is of extreme urgency and the applicant will is entitled to the injunction or restraining order,
suffer grave injustice and irreparable injury, the executive the issuance or continuance thereof, as the case
judge of a multiple-sala court or the presiding judge of a single- may be, would cause irreparable damage to the
sala court may issue ex-parte a temporary restraining order party or person enjoined while the applicant can
effective for only seventy-two (72) hours from issuance but he be fully compensated for such damages as he may
shall immediately comply with the provisions of the next suffer, and the former files a bond in an amount
preceding section as to service of summons and the documents fixed by the court conditioned that he will pay all
to be served therewith (Sec. 5, Rule 58). damages which the applicant may suffer by the
denial or the dissolution of the injunction or
What should the judge where the case is raffled, do after the EJ restraining order. If it appears that the extent of
issued the 72 hour TRO? the preliminary injunction or restraining order
- Within the aforesaid seventy-two (72) hours, the judge before granted is too great, it may be modified. (6a)
whom the case is raffled shall conduct a summary hearing to
determine whether the temporary restraining order shall be Section 7. Service of copies of bonds; effect of
extended until the application for preliminary injunction can be disapproval of same. — The party filing a bond in
heard. In no case shall the total period of effectivity of the accordance with the provisions of this Rule shall
temporary restraining order exceed twenty (20) days, including forthwith serve a copy of such bond on the other
the original seventy-two hours provided herein (Sec. 5, Rule party, who may except to the sufficiency of the
57). bond, or of the surety or sureties thereon. If the
applicant's bond is found to be insufficient in
Is 20 day TRO extendible? amount, or if the surety or sureties thereon fail to
-NO justify, and a bond sufficient in amount with
-The Rules provide: “In no case shall the total period of sufficient sureties approved after justification is
effectivity of the temporary restraining order exceed twenty not filed forthwith the injunction shall be
(20) days, including the original seventy-two hours provided dissolved. If the bond of the adverse party is found
herein.” (Sect. 5, Rule 58) to be insufficient in amount, or the surety or
sureties thereon fail to justify a bond sufficient in
Instances where preliminary injunction may not be issued by amount with sufficient sureties approved after
the Court? As provided in RoC justification is not filed forthwith, the injunction
- No court, except SC, can issue injunctive relief against lawful shall be granted or restored, as the case may be.
action of the government agencies that enforce environmental (8a)
laws (Sec. 10, Rule 2, Part II, A.M. 09-6-8- SC)
-PD 605 bans the issuance of injunctive relief in cases involving Section 8. Judgment to include damages against
concessions, licenses issued by the government for exploitation party and sureties. — At the trial, the amount of
of natural resources. damages to be awarded to either party, upon the
- PD 1818 prohibits issuance of TRO, PI against the execution of bond of the adverse party, shall be claimed,
government infrastructure projects. ascertained, and awarded under the same
- PARC cannot be enjoined by court in the implementation or procedure prescribed in section 20 of Rule 57. (9a)
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Section 9. When final injunction granted. — If

after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined the court
shall grant a final injunction perpetually
restraining the party or person enjoined from
the commission or continuance of the act or
acts of confirming the preliminary mandatory
injunction. (10a)
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RULE 59 Section 3. Denial of application or discharge of

Receivership receiver. — The application may be denied, or the
receiver discharged, when the adverse party files
Section 1. Appointment of receiver. — Upon a a bond executed to the applicant, in an amount to
verified application, one or more receivers of be fixed by the court, to the effect that such party
the property subject of the action or will pay the applicant all damages he may suffer
proceeding may be appointed by the court by reason of the acts, omissions, or other matters
where the action is pending or by the Court of specified in the application as ground for such
Appeals or by the Supreme Court, or a member appointment. The receiver may also be discharged
thereof, in the following cases: if it is shown that his appointment was obtained
(a) When it appears from the verified without sufficient cause. (4a)
application, and such other proof as the court
may require, that the party applying for the Section 4. Oath and bond of receiver. — Before
appointment of a receiver has an interest in the entering upon his duties, the receiver shall be
property or fund which is the subject of the sworn to perform them faithfully, and shall file a
action or proceeding, and that such property or bond, executed to such person and in such sum as
fund is in danger of being lost, removed, or the court may direct, to the effect that he will
materially injured unless a receiver be faithfully discharge his duties in the action or
appointed to administer and preserve it; proceeding and obey the orders of the court. (5a)
(b) When it appears in an action by the
mortgagee for the foreclosure of a mortgage Section 5. Service of copies of bonds; effect of
that the property is in danger of being wasted disapproval of same. — The person filing a bond
or dissipated or materially injured, and that its in accordance with the provisions of this Rule shall
value is probably insufficient to discharge the forthwith serve a copy thereof on each interested
mortgage debt, or that the parties have so party, who may except to its sufficiency or of the
stipulated in the contract of mortgage; surety or sureties thereon. If either the applicant's
(c) After judgment, to preserve the property or the receiver's bond is found to be insufficient in
during the pendency of an appeal, or to dispose amount, or if the surety or sureties thereon fail to
of it according to the judgment, or to aid justify, and a bond sufficient in amount with
execution when the execution has been sufficient sureties approved after justification is
returned unsatisfied or the judgment obligor not filed forthwith, the application shall be denied
refuses to apply his property in satisfaction of or the receiver discharged, as the case may be. If
the judgment, or otherwise to carry the the bond of the adverse party is found to be
judgment into effect; insufficient in amount or the surety or sureties
(d) Whenever in other cases it appears that the thereon fail to justify, and a bond sufficient in
appointment of a receiver is the most amount with sufficient sureties approved after
convenient and feasible means of preserving, justification is not filed forthwith, the receiver
administering, or disposing of the property in shall be appointed or re-appointed, as the case
litigation. may be. (6a)
During the pendency of an appeal, the
appellate court may allow an application for Section 6. General powers of receiver. — Subject
the appointment of a receiver to be filed in and to the control of the court in which the action or
decided by the court of origin and the receiver proceeding is pending a receiver shall have the
appointed to be subject to the control of said power to bring and defend, in such capacity,
court. (1a) actions in his own name; to take and keep
possession of the property in controversy; to
Section 2. Bond on appointment of receiver. — receive rents; to collect debts due to himself as
Before issuing the order appointing a receiver receiver or to the fund, property, estate, person,
the court shall require the applicant to file a or corporation of which he is the receiver; to
bond executed to the party against whom the compound for and compromise the same; to make
application is presented, in an amount to be transfers; to pay outstanding debts; to divide the
fixed by the court, to the effect that the money and other property that shall remain
applicant will pay such party all damages he among the persons legally entitled to receive the
may sustain by reason of the appointment of same; and generally to do such acts respecting the
such receiver in case the applicant shall have property as the court may authorize. However,
procured such appointment without sufficient funds in the hands of a receiver may be invested
cause; and the court may, in its discretion, at only by order of the court upon the written
any time after the appointment, require an consent of all the parties to the action. (7a)
additional bond as further security for such No action may be filed by or against a receiver
damages. (3a) without leave of the court which appointed him.
(n)
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Section 7. Liability for refusal or neglect to

deliver property to receiver. — A person who
refuses or neglects, upon reasonable demand,
to deliver to the receiver all the property,
money, books, deeds, notes, bills, documents
and papers within his power or control, subject
of or involved in the action or proceeding, or in
case of disagreement, as determined and
ordered by the court, may be punished for
contempt and shall be liable to the receiver for
the money or the value of the property and
other things so refused or neglected to be
surrendered, together with all damages that
may have been sustained by the party or
parties entitled thereto as a consequence of
such refusal or neglect. (n)
Section 8. Termination of receivership;

compensation of receiver. — Whenever the
court, motu proprio or on motion of either
party, shall determine that the necessity for a
receiver no longer exists, it shall, after due
notice to all interested parties and hearing,
settle the accounts of the receiver, direct the
delivery of the funds and other property in his
possession to the person adjudged to be
entitled to receive them and order the
discharge of the receiver from further duty as
such. The court shall allow the receiver such
reasonable compensation as the circumstances
of the case warrant, to be taxed as costs against
the defeated party, or apportioned, as justice
requires. (8a)
Section 9. Judgment to include recovery against

sureties. — The amount, if any, to be awarded
to any party upon any bond filed in accordance
with the provisions of this Rule, shall be
claimed, ascertained, and granted under the
same procedure prescribed in section 20 of
Rule 57. (9a)
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RULE 60 Section 5. Return of property. — If the adverse

Replevin party objects to the sufficiency of the applicant's
bond, or of the surety or sureties thereon, he
Section 1. Application. — A party praying for cannot immediately require the return of the
the recovery of possession of personal property property, but if he does not so object, he may, at
may, at the commencement of the action or at any time before the delivery of the property to the
any time before answer, apply for an order for applicant, require the return thereof, by filing
the delivery of such property to him, in the with the court where the action is pending a bond
manner hereinafter provided. (1a) executed to the applicant, in double the value of
the property as stated in the applicant's affidavit
Section 2. Affidavit and bond. — The applicant for the delivery thereof to the applicant, if such
must show by his own affidavit or that of some delivery be adjudged, and for the payment of such
other person who personally knows the facts: sum, to him as may be recovered against the
(a) That the applicant is the owner of the adverse party, and by serving a copy of such bond
property claimed, particularly describing it, or on the applicant. (5a)
is entitled to the possession thereof;
(b) That the property is wrongfully detained by Section 6. Disposition of property by sheriff. — If
the adverse party, alleging the cause of within five (5) days after the taking of the property
detention thereof according to the best of his by the sheriff, the adverse party does not object
knowledge, information, and belief ; to the sufficiency of the bond, or of the surety or
(c) That the property has not been distrained or sureties thereon; or if the adverse party so objects
taken for a tax assessment or a fine pursuant to and the court affirms its approval of the
law, or seized under a writ of execution or applicant's bond or approves a new bond, or if the
preliminary attachment, or otherwise placed adverse party requires the return of the property
under custodia legis, or if so seized, that it is but his bond is objected to and found insufficient
exempt from such seizure or custody; and and he does not forthwith file an approved bond,
(d) The actual market value of the property. the property shall be delivered to the applicant. If
The applicant must also give a bond, executed for any reason the property is not delivered to the
to the adverse party in double the value of the applicant, the sheriff must return it to the adverse
property as stated in the affidavit party. (6a)
aforementioned, for the return of the property
to the adverse party if such return be adjudged, Section 7. Proceedings where property claimed by
and for the payment to the adverse party of third person. — If the property taken is claimed by
such sum as he may recover from the applicant any person other than the party against whom the
in the action. (2a) writ of replevin had been issued or his agent, and
such person makes an affidavit of his title thereto,
Section 3. Order. — Upon the filing of such or right to the possession thereof, stating the
affidavit and approval of the bond, the court grounds therefor, and serves such affidavit upon
shall issue an order and the corresponding writ the sheriff while the latter has possession of the
of replevin, describing the personal property property and a copy thereof upon the applicant,
alleged to be wrongfully detained and requiring the sheriff shall not be bound to keep the property
the sheriff forthwith to take such property into under replevin or deliver it to the applicant unless
his custody. (3a) the applicant or his agent, on demand of said
sheriff, shall file a bond approved by the court to
Section 4. Duty of the sheriff. — Upon receiving indemnify the third-party claimant in a sum not
such order, the sheriff must serve a copy less than the value of the property under replevin
thereof on the adverse party, together with a as provided in section 2 hereof. In case of
copy of the application, affidavit and bond, and disagreement as to such value, the court shall
must forthwith take the property, if it be in the determine the same. No claim for damages for the
possession of the adverse party, or his agent, taking or keeping, of the property may be
and retain it in his custody. If the property or enforced against the bond unless the action
any part thereof be concealed in a building or therefor is filed within one hundred twenty (120)
enclosure, the sheriff must demand its delivery, days from the date of the filing of the bond.
and if it be not delivered, he must cause the The sheriff shall not be liable for damages, for the
building or enclosure to be broken open and taking or keeping of such property, to any such
take the property into his possession. After the third-party claimant if such bond shall be filed.
sheriff has take possession of the property as Nothing herein contained shall prevent such
herein provided, he must keep it in a secure claimant or any third person from vindicating his
place and shall be responsible for its delivery to claim to the property, or prevent the applicant
the party entitled thereto upon receiving his from claiming damages against a third-party
fees and necessary expenses for taking and claimant who filed a frivolous or plainly spurious
keeping the same. (4a) claim, in the same or a separate action.
When the writ of replevin is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
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Amilhamja, Adj.
required, and in case the sheriff is sued for

damages as a result of the replevin, he shall be
represented by the Solicitor General, and if
held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of the funds to be
appropriated for the purpose. (7a)
Section 8. Return of papers. — The sheriff must

file the order, with his proceedings indorsed,
thereon, with the court within ten (10) days
after taking the property mentioned therein.
(8a)
Section 9. Judgment. — After trial of the issues

the court shall determine who has the right of
possession to and the value of the property and
shall render judgment in the alternative for the
delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be
made, and also for such damages as either
party may prove, with costs. (9a)
Section 10. Judgment to include recovery

against sureties. — The amount, if any, to be
awarded to any party upon any bond filed in
accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted
under the same procedure as prescribed in
section 20 of Rule 57. (10a)
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Amilhamja, Adj.
RULE 61 Section 6. Support in criminal cases. — In criminal

Support Pendente Lite actions where the civil liability includes support
for the offspring as a consequence of the crime
Section 1. Application. — At the and the civil aspect thereof has not been waived,
commencement of the proper action or reserved and instituted prior to its filing, the
proceeding, or at any time prior to the accused may be ordered to provide support
judgment or final order, a verified application pendente lite to the child born to the offended
for support pendente lite may be filed by any party allegedly because of the crime. The
party stating the grounds for the claim and the application therefor may be filed successively by
financial conditions of both parties, and the offended party, her parents, grandparents or
accompanied by affidavits, depositions or other guardian and the State in the corresponding
authentic documents in support thereof. (1a) criminal case during its pendency, in accordance
with the procedure established under this Rule.
Section 2. Comment. — A copy of the (n)
application and all supporting documents shall
be served upon the adverse party, who shall Section 7. Restitution. — When the judgment or
have five (5) days to comment thereon unless a final order of the court finds that the person who
different period is fixed by the court upon his has been providing support pendente lite is not
motion. The comment shall be verified and liable therefor, it shall order the recipient thereof
shall be accompanied by affidavits, depositions to return to the former the amounts already paid
or other authentic documents in support with legal interest from the dates of actual
thereof. (2a, 3a) payment, without prejudice to the right of the
recipient to obtain reimbursement in a separate
Section 3. Hearing. — After the comment is action from the person legally obliged to give the
filed, or after the expiration of the period for its support. Should the recipient fail to reimburse
filing, the application shall be set for hearing said amounts, the person who provided the same
not more than three (3) days thereafter. The may likewise seek reimbursement thereof in a
facts in issue shall be proved in the same separate action from the person legally obliged to
manner as is provided for evidence on motions. give such support. (n)
(4a)
Section 4. Order. — The court shall determine

provisionally the pertinent facts, and shall
render such orders as justice and equity may
require, having the regard to the probable
outcome of the case and such other
circumstances as may aid in the proper
resolution of the question involved. If the
application is granted, the court shall fix the
amount of money to be provisionally paid or
such other forms of support as should be
provided, taking into account the necessities of
the applicant and the resources or means of the
adverse party, and the terms of payment or
mode for providing the support. If the
application is denied, the principal case shall be
tried and decided as early as possible. (5a)
Section 5. Enforcement of order. — If the

adverse party fails to comply with an order
granting support pendente lite, the court shall,
motu proprio or upon motion; issue an order of
execution against him, without prejudice to his
liability for contempt. (6a)
When the person ordered to give support
pendente lite refuses or fails to do so, any third
person who furnished that support to the
applicant may, after due notice and hearing in
the same case obtain a writ of execution to
enforce his right of reimbursement against the
person ordered to provide such support. (h)
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Amilhamja, Adj.
Special Civil Actions and it is already perfected. There are 2 persons pal ana dela cruz.
Twins daw kasi sila. I cannot determine to whom I entered a
contract with. So file an action for interpleader.
Section 2. Order. — Upon the filing of the

complaint, the court shall issue an order requiring
the conflicting claimants to interplead with one
another. If the interests of justice so require, the
court may direct in such order that the subject
matter be paid or delivered to the court. (2a, R63)
Section 3. Summons. — Summons shall be served

upon the conflicting claimants, together with a
copy of the complaint and order. (3, R63)
RULE 62
Interpleader Section 4. Motion to dismiss. — Within the time
for filing an answer, each claimant may file a
Section 1. When interpleader proper. — motion to dismiss on the ground of impropriety of
Whenever conflicting claims upon the same the interpleader action or on other appropriate
subject matter are or may be made against a grounds specified in Rule 16. The period to file the
person who claims no interest whatever in the answer shall be tolled and if the motion is denied,
subject matter, or an interest which in whole or the movant may file his answer within the
in part is not disputed by the claimants, he may remaining period, but which shall not be less than
bring an action against the conflicting claimants five (5) days in any event, reckoned from notice of
to compel them to interplead and litigate their denial. (n)
several claims among themselves. (1a, R63)
Section 5. Answer and other pleadings. — Each
Meaning of Interpleader claimant shall file his answer setting forth his
- It is a special civil action filed by a person against whom claim within fifteen (15) days from service of the
two conflicting claims are made upon the same subject matter summons upon him, serving a copy thereof upon
and over which he claims no interest, or if he claims interest, each of the other conflicting claimants who may
the same is not disputed by the parties. This action is brought file their reply thereto as provided by these Rules.
against the conflicting claimants to compel them to interplead If any claimant fails to plead within the time
and litigate their claims among themselves herein fixed, the court may, on motion, declare
him in default and thereafter render judgment
When is interpleader proper? barring him from any claim in respect to the
-Whenever conflicting claims upon the same subject matter are subject matter.
or may be made against a person who claims no interest The parties in an interpleader action may file
whatever in the subject matter, or an interest which in whole counterclaims, cross-claims, third-party
or in part is not disputed by the claimants, he may bring an complaints and responsive pleadings thereto, as
action against the conflicting claimants to compel them to provided by these Rules. (4a, R63)
interplead and litigate their several claims among themselves
(Sec. 1, Rule 62). Section 6. Determination. — After the pleadings of
the conflicting claimants have been filed, and pre-
Requisites of Interpleader trial has been conducted in accordance with the
1. There must be two or more claimants with adverse Rules, the court shall proceed to determine their
and conflicting interest upon a subject matter respective rights and adjudicate their several
2. The conflicting claims involve the same subject matter claims. (5a, R63)
3. The conflicting claims are made upon the same
person Section 7. Docket and other lawful fees, costs and
4. The plaintiff has no claim or his interest, in whole or litigation expenses as liens. — The docket and
in part in the subject is not disputed by the claimants other lawful fees paid by the party who filed a
complaint under this Rule, as well as the costs and
What is the jurisdiction of interpleader? litigation expenses, shall constitute a lien or
It depends on the subject matter of the conflicting claims: change upon the subject matter of the action,
1. If the subject matter of the action is personal property – unless the court shall order otherwise. (6a, R63)
determine the value of the personal property
300,000/400,000 up- RTC
2. If the conflicting claims involve right to receive particular
sum – determine the amount of the sum claimed
3. If the subject matter is real property – determine the
assessed value of the property
4. If the subject matter is incapable of pecuniary estimation –
RTC
i.e. you entered into a contract of sale with Roberto dela cruz
264
Amilhamja, Adj.
RULE 63 Section 2. Parties. — All persons who have or

Declaratory Relief and Similar Remedies claim any interest which would be affected by the
declaration shall be made parties; and no
Section 1. Who may file petition. — Any person declaration shall, except as otherwise provided in
interested under a deed, will, contract or other these Rules, prejudice the rights of persons not
written instrument, or whose rights are parties to the action. (2a, R64)
affected by a statute, executive order or
regulation, ordinance, or any other Section 3. Notice on Solicitor General. — In any
governmental regulation may, before breach or action which involves the validity of a statute,
violation thereof bring an action in the executive order or regulation, or any other
appropriate Regional Trial Court to determine governmental regulation, the Solicitor General
any question of construction or validity arising, shall be notified by the party assailing the same
and for a declaration of his rights or duties, and shall be entitled to be heard upon such
thereunder. (Bar Matter No. 803, 17 February question. (3a, R64)
1998)
An action for the reformation of an instrument, Section 4. Local government ordinances. — In any
to quiet title to real property or remove clouds action involving the validity of a local government
therefrom, or to consolidate ownership under ordinance, the corresponding prosecutor or
Article 1607 of the Civil Code, may be brought attorney of the local governmental unit involved
under this Rule. (1a, R64) shall be similarly notified and entitled to be heard.
If such ordinance is alleged to be unconstitutional,
Declaratory Relief the Solicitor General shall also be notified and
-Declaratory relief is defined as an action by any person entitled to be heard. (4a, R64)
interested in a deed, will, contract or other written instrument,
executive order or resolution, to determine any question of Section 5. Court action discretionary. — Except in
construction or validity arising from the instrument, executive actions falling under the second paragraph of
order or regulation, or statute; and for a declaration of his rights section 1 of this Rule, the court, motu proprio or
and duties thereunder. upon motion, may refuse to exercise the power to
-The only issue that may be raised in such a petition is the declare rights and to construe instruments in any
question of construction or validity of provisions in an case where a decision would not terminate the
instrument or statute (Province of Camarines Sur vs. CA, 600 uncertainty or controversy which gave rise to the
SCRA 569). action, or in any case where the declaration or
i.e. an ordinance is passed by an LGU. Prior to this construction is not necessary and proper under
ordinance, opinion mon a unconstitutional to. You can file an the circumstances. (5a, R64)
action for declaratory relief before you could have violated this.
Section 6. Conversion into ordinary action. — If
For what purpose is declaratory relief filed? before the final termination of the case, a breach
a. To determine any question of construction or validity arising or violation of an instrument or a statute,
from the subject of the action; executive order or regulation, ordinance, or any
b. Seek a declaration of petitioner’s rights thereunder. other governmental regulation should take place,
the action may thereupon be converted into an
*What are the actions that may be brought under Rule 63? ordinary action, and the parties shall be allowed
-2 types of action in Rule 63! to file such pleadings as may be necessary or
1. An action to determine any question of construction or proper. (6a, R64)
validity arising, and for a declaration of his rights or duties,
thereunder – Declaratory Relief. Please take note:
2. An action for the reformation of an instrument, to quiet title -Declaratory relief must be filed before any breach or violation. If
to real property or remove clouds therefrom, or to consolidate the law or contract has been violated prior to the filing of
ownership under Article 1607 of the Civil Code (Sec. 1, Rule 63) declaratory relief, the latter recourse should be dismissed (Malana
-when do you file this? When the contract does not reflect vs. Tappa, 600 SCRA 189).
the true intention of the parties. -BUT: If the breach occurred during the pendency of declaratory
relief, the latter will converted to ordinary civil action (Sec. 6, Rule
*What are the requisites of declaratory relief? 63).
• The subject matter must be deed, will, contract or other
written instrument, or whose rights are affected by a *What are the subject matter in a petition for declaratory relief?
statute, executive order or regulation, ordinance, or any (CESO DAW)
other governmental regulation; • Deed
• The terms of said statute or document and the validity • Will
thereof are doubtful and require judicial construction; • Contract or other written instrument -Statute
• There must have been no breach of the statute or • Executive order or regulation,
document; There must be actual justiciable controversy – • Ordinance
most important • Any other governmental regulation
• The issue is ripe for judicial determination; =NOTE: These are exclusive
• Adequate relief is not available.
*Illustration of exclusivity of grounds
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-An order the RTC denying petitioner’s motion to suspend the

implementation of writ of execution cannot become a subject
matter of declaratory relief (Mangahas vs. Paredes, 515 SCRA
709, 716).
- Final decision of the court cannot be the subject of declaratory
relief (Reyes vs. Dison, 628 SCRA 1, 15).
Who may file the petition?

“Any interested party”
• if subject is deed, will, contract, or other written instrument;
“Persons whose rights are affected”
• if the subject is statute, executive order, regulation, ordinance
or any other government regulation.
Which court has jurisdiction?

-***The RTC has jurisdiction as declaratory relief raises issue
which is incapable of pecuniary estimation (Sec. 19[1], BP 129;
Sec.1, Rule 63).
- SC has no original jurisdiction over declaratory relief (Clark
Investors and Locators Assn. vs. Secretary, July 6, 2015).
- If the action is for quieting of title to real property, the
jurisdiction depends upon the assessed value of the real
property (Heirs of Valeriano S. Concha vs. SPS Lumucso, 540
SCRA 1, 16).
- Action for reformation of contract should be treated as action
in capable of pecuniary estimation, hence RTC.
- An action for consolidation of ownership is an action incapable
of pecuniary estimation (Cruz vs. Leis, 327 SCRA 570)
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RULE 64 Section 5. Form and contents of petition. — The

Review of Judgments and Final Orders or petition shall be verified and filed in eighteen (18)
Resolutions of the Commission on Elections legible copies. The petition shall name the
and the Commission on Audit aggrieved party as petitioner and shall join as
respondents the Commission concerned and the
Section 1. Scope. — This Rule shall govern the person or persons interested in sustaining the
review of judgments and final orders or judgment, final order or resolution a quo. The
resolutions of the Commission on Elections and petition shall state the facts with certainty,
the Commission on Audit. (n) present clearly the issues involved, set forth the
grounds and brief arguments relied upon for
-Rule 64 governs the review of the judgment or final order of review, and pray for judgment annulling or
the COMELEC and COA. modifying the questioned judgment, final order or
- The mode of review is via Petition for Certiorari under Rule 65 resolution. Findings of fact of the Commission
(Aratuc vs. Comelec, 88 SCRA 251, 272). supported by substantial evidence shall be final
- The ground upon which the petition must be filed is on and non-reviewable.
jurisdictional ground, that is, the COLEMEC or COA acted The petition shall be accompanied by a clearly
without jurisdiction or committed grave abuse of discretion legible duplicate original or certified true copy of
amounting to lack or excess of jurisdiction. the judgment, final order or resolution subject
-Civil Service commission appeals is under rule 43 thereof, together with certified true copies of such
material portions of the record as are referred to
Section 2. Mode of review. — A judgment or therein and other documents relevant and
final order or resolution of the Commission on pertinent thereto. The requisite number of copies
Elections and the Commission on Audit may be of the petition shall contain plain copies of all
brought by the aggrieved party to the Supreme documents attached to the original copy of said
Court on certiorari under Rule 65, except as petition.
hereinafter provided. (n; Bar Matter No. 803, The petition shall state the specific material dates
17 February 1998) showing that it was filed within the period fixed
herein, and shall contain a sworn certification
Section 3. Time to file petition. — The petition against forum shopping as provided in the third
shall be filed within thirty (30) days from notice paragraph of section 3, Rule 46.
of the judgment or final order or resolution The petition shall further be accompanied by
sought to be reviewed. The filing of a motion proof of service of a copy thereof on the
for new trial or reconsideration of said Commission concerned and on the adverse party,
judgment or final order or resolution, if allowed and of the timely payment of docket and other
under the procedural rules of the Commission lawful fees.
concerned, shall interrupt the period herein The failure of petitioner to comply with any of the
fixed. If the motion is denied, the aggrieved foregoing requirements shall be sufficient ground
party may file the petition within the remaining for the dismissal of the petition. (n)
period, but which shall not be less than five (5)
days in any event, reckoned from notice of Section 6. Order to comment. — If the Supreme
denial. (n) Court finds the petition sufficient in form and
When should petition be filed? substance, it shall order the respondents to file
-The petition shall be filed within thirty (30) days from notice of their comments on the petition within ten (10)
the judgment or final order or resolution sought to be reviewed days from notice thereof; otherwise, the Court
(Sec 3, Rule 64). may dismiss the petition outright. The Court may
also dismiss the petition if it was filed manifestly
Does Neypes or “fresh period” rule apply to judgment or final for delay or the questions raised are too
order of COMELEC and COA? unsubstantial to warrant further proceedings. (n)
- NO. Section 3, Rule 64 provides:
- “If the motion is denied, the aggrieved party may file Section 7. Comments of respondents. — The
the petition within the remaining period, but which shall not be comments of the respondents shall be filed in
less than five (5) days in any event, reckoned from notice of eighteen (18) legible copies. The original shall be
denial” (Pates vs. Comelec, 591 SCRA 491; Lokin vs. Comelec, accompanied by certified true copies of such
June 26, 2012). material portions of the record as are referred to
therein together with other supporting papers.
What is the period to file the Petition? The requisite number of copies of the comments
-The petition shall be filed within thirty (30) days from notice of shall contain plain copies of all documents
the judgment or final order or resolution sought to be reviewed attached to the original and a copy thereof shall
(Sec. 3, id.). be served on the petitioner.
Section 4. Docket and other lawful fees. — No other pleading may be filed by any party unless
Upon the filing of the petition, the petitioner required or allowed by the Court. (n)
shall pay to the clerk of court the docket and
other lawful fees and deposit the amount of
P500.00 for costs. (n)
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Section 8. Effect of filing. — The filing of a

petition for certiorari shall not stay the
execution of the judgment or final order or
resolution sought to be reviewed, unless the
Supreme Court shall direct otherwise upon
such terms as it may deem just. (n)
What is the effect of filing the petition on the judgment or final

order?
- The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought
to be reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just. (Sec. 8, id.).
Section 9. Submission for decision. — Unless

the Court sets the case for oral argument, or
requires the parties to submit memoranda, the
case shall be deemed submitted for decision
upon the filing of the comments on the
petition, or of such other pleadings or papers as
may be required or allowed, or the expiration
of the period to do so. (n)
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RULE 65 Section 1. Petition for certiorari. — When any

Certiorari, Prohibition and Mandamus tribunal, board or officer exercising judicial or
Called a “supervisory or superintending writ,” this remedy is quasi-judicial functions has acted without or in
availed of to annul or modify the proceedings of a tribunal, excess its or his jurisdiction, or with grave abuse
board or officer exercising judicial or extrajudicial functions of discretion amounting to lack or excess of
which has acted without or in excess of jurisdiction, or with jurisdiction, and there is no appeal, or any plain,
grave abuse of discretion amounting to lack of jurisdiction. For speedy, and adequate remedy in the ordinary
this petition to prosper, it is necessary to allege and show that course of law, a person aggrieved thereby may file
there is no more appeal, or any other plain, speedy, and a verified petition in the proper court, alleging the
adequate remedy in the ordinary course of law. facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings
As a rule, where appeal is available, certiorari cannot be availed of such tribunal, board or officer, and granting
of unless it can be shown that appeal is not speedy, or adequate. such incidental reliefs as law and justice may
Hence, the basic question to be considered is: Does the require.
petitioner have the remedy of appeal or any other remedy? If The petition shall be accompanied by a certified
the answer is in the affirmative, certiorari is not available, as a true copy of the judgment, order or resolution
rule. However, even if appeal is available, if it is not adequate, subject thereof, copies of all pleadings and
speedy or equally beneficial as certiorari, a petition for certiorari documents relevant and pertinent thereto, and a
may be availed of (Landbank vs. CA 409 SCRA 455) sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule
The task of the court in a certiorari proceeding is to determine 46. (1a)
whether the lower court committed grave abuse of discretion
(Marcopper Mining vs. Solidbank Corporation, GR 134049 June Certiorari
17, 2004). It is a remedy narrow in scope. It is not a general utility -“an extreme remedy”
tool in the legal workshop. Its function is to raise only questions -It is also called “prerogative writ” because it is not
of jurisdiction and no other. It cannot be used for any other demandable as a matter of right.
purpose (Landbank vs. CA, supra). Do not file a certiorari if your
purpose is to raise a factual issue or to ask for a re-evaluation of -Its purpose is the correction of errors of jurisdiction which includes
the facts and the evidence (PILTEL vs. NTC 410 SCRA 82). commission of grave abuse of discretion amounting to lack or
excess of jurisdiction.
The sole object of the writ is to correct errors of jurisdiction or
grave abuse of discretion. The phrase “grave abuse of NOT A MODE OF APPEAL!!!! And cannot be substitute for appeal!
discretion” has a precise meaning in law, denoting abuse of - It is an original and independent action and not a mode of appeal.
discretion “too patent and gross as to amount to an evasion of a -will not affect the case!
positive duty, or a virtual refusal to perform the duty enjoined
or act in contemplation of law, or where the power is exercised G.R: Certiorari cannot be a substitute for appeal or lost appeal.
in an arbitrary and despotic manner by reason of passion and EXCEPTIONS:
personal hostility.” It does not encompass an error of law. Nor -When public welfare and the advancement of public policy
does it include a mistake in the appreciation of the contending dictates.
parties’ respective evidence or the evaluation of their relative -When broader interest of justice so require.
weight. -When writs issued are null and void.
-When the questioned order amounts to an oppressive exercise of
The Court cannot be tasked to go over the proofs presented by judicial authority.
the parties and analyze, assess and weigh them all over again to
ascertain if the trial court or quasi-judicial agency and the Rule 45 vs. Rule 65
appellate court were correct in according superior credit to this -Certiorari under Rule 45 is a mode of appeal while certiorari under
or that piece of evidence of one party or the other. The sole Rule 65 is a special civil action.
office of a writ of certiorari is the correction of errors of -Certiorari under Rule 45 is just a continuation of the appellate
jurisdiction including the commission of grave abuse of process of the original case, but under Rule 65, it is an original
discretion amounting to lack of jurisdiction, and does not include action.
the review of factual findings based thereon (Remy’s Freight -Certiorari under Rule 45 seeks to review the judgment while
Service GR 14167 June 8, 2006) certiorari under Rule 65 seeks to annul the proceedings or
judgment.
The petition shall be filed not later than 60 days from notice of - Certiorari under Rule 45 raises questions of law while under Rule
the judgment, order or resolution. In case a motion for 65, it raises question of jurisdiction.
reconsideration was filed, the 60-day period starts not from the - Certiorari under Rule 45 is to be filed within 15 days from receipt
notice of judgment but from notice of the denial of the motion of judgment or final order while the period to file certiorari under
for reconsideration (Docena vs. Lapser 355 SCRA 658). Rule 65 is either 30 or 60 days
- Certiorari under Rule 45 does not require filing of MR, while in
certiorari under Rule 65, the filing of MR is required.
- The parties in certiorari under Rule 45 are the same parties to the
action while the parties in Rule 65 are the tribunal, board or officer
exercising quasi-judicial function.
- Certiorari under Rule 45 may only be filed before SC, while
certiorari under Rule 65 may be filed with the RTC.
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Amilhamja, Adj.
of appeal is plain, speedy and adequate remedy in the ordinary

Essential requisites for a petition for certiorari course of law.
-1. The petition is directed against a tribunal, board, or officer -Certiorari cannot be a substitute for appeal much less lost appeal.
exercising judicial or quasi-judicial functions.
-2. Such tribunal, board, or officer has acted without or in excess Certiorari cannot be substitute for lost appeal:
of jurisdiction or with grave abuse of discretion amounting to EXCEP TIONS
lack or excess of jurisdiction. -When public welfare and the advancement of public policy
-3. There is neither appeal nor plain, speedy or adequate remedy dictates.
in the ordinary course of law for the purpose annulling or -When broader interest of justice so require.
modifying the proceeding. - When writs issued are null and void.
-When the questioned order amounts to an oppressive exercise of
First Requisite judicial authority.
The respondent must be exercising judicial or Quasi-judicial
function Rule: Necessity of MR, Exceptions:
- The order is patent nullity.
-What is judicial function? – It is the power to determine what - The issue has been duly raised and passed by the lower
the law is and what the legal rights of the parties are, and then court.
undertakes to determine these questions and adjudicate the - There is an urgent necessity for the resolution of the question.
rights of the parties (Aquino vs. Municipality of Malay, - The subject matter of the action is perishable.
September 29, 2014). - Petitioner is deprived of due process.
- MR would be useless under the circumstances.
What is quasi-judicial function - Relief from arrest is urgent.
-It is the power of an administrative agency to investigate facts - The proceedings is a total nullity.
or ascertain the existence of facts, hold hearings, and draw - The issue is one purely of law.
conclusions from them as a basis for its official action and to
exercise discretion of a judicial nature (Aquino vs. Municipality *What are the formal requirements for filing the petition?
of Malay, September 29, 2014). 1. Filing of a verified petition.
2. The petition shall be accompanied by a certified true copy of the
Illustration judgment, order or resolution subject thereof.
-A petition for certiorari challenging the validity of the Human 3. Copies of all pleadings and documents relevant and pertinent
Security Act of 2007 filed against the Anti-Terrorism Council and thereto.
its members was dismissed as said council is not exercising 4. Sworn certification of non-forum shopping as provided in the
judicial or quasi-judicial function (Southern Hemisphere paragraph of Section 3, Rule 46 (Sec. 1, Rule 65).
Engagement Network vs. Anti Terrorism Council, 632 SCRA 146, -if incomplete, possible dismissal!!
166).
- Petition for certiorari will not lie against the RTWPB for the What is the effect if the formal requirements are not complied
wage order that it issued because what was exercised is quasi- with?
legislative function (MBTC vs. NWPC, 514 SCRA 346, 357-358). -A petition is procedurally flawed if Sec. 1 of Rule 65 is not complied
- Petition for certiorari will not lie to question the EO issued by with because there are documents important for the court’s
the President for the reason that the same was issued in the appraisal, evaluation and judicious disposition of the case. Non-
exercise of the president’s quasi-legislative power (Galicto vs. observance of the rule is a sufficient cause for dismissal of the
Aquino, 667 SCRA 150, 165). petition and cannot be merely brushed a mere technicality (Lim vs.
Vianzon, 497 SCRA 482, 492-493).
Expanded scope of Certiorari
-“Petition for certiorari and prohibition are appropriate What is the period to file the petition?
remedies to raise constitutional issues and to review and/or - The petition may be filed not later than sixty (60) days from notice
prohibit or nullify the acts of legislative and executive officials” of the judgment, order or resolution sought to be assailed in the
(Araullo vs. Aquino, III, July 1, 2014). Supreme Court or, if it relates to the acts or omissions of a lower
-The basis of this pronouncement is the second paragraph of court or of a corporation, board, officer or person, in the Regional
Section 1, Article VIII of the Constitution. Trial Court exercising jurisdiction over the territorial area as
defined by the Supreme Court. It may also be filed in the Court of
Second Requisite Lack, excess, grave abuse Appeals whether or not the same is in aid of its appellate
-Without jurisdiction denotes the tribunal, board or officer acted jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction.
with absolute lack of authority. If it involves the acts or omissions of a quasi-judicial agency, and
-Excess of jurisdiction – when the public respondent exceeds its unless otherwise provided by law or these Rules, the petition shall
power or acts without statutory authority. be filed in and cognizable only by the Court of Appeals. (Sec. 4, Rule
- Grave abuse of discretion – connotes such capricious and 65)
whimsical exercise of judgment as to be equivalent to lack or
excess of jurisdiction or the power is exercised in an arbitrary or May the period be extended?
despotic manner by reason of passion, prejudice or personal Yes, when:
hostility. - Most persuasive and weighty reasons.
- To relieve a litigant from injustice
Third Requisite - Good faith of the defaulting party
No appeal and other speedy remedy - Compelling circumstances
-Certiorari is not available where the aggrieved party’s remedy - Merits of the case
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Amilhamja, Adj.
- Cause not entirely attributable to the defaulting party - No -In prohibition, the writ is directed against the respondent
showing that it is frivolous exercising judicial, quasi-judicial and ministerial function while writ
- In the name of substantial justice and fair play of certiorari is directed against respondent exercising judicial and
-Importance of issues involved (Labao vs. Flores, 634 SCRA 723) quasi-judicial.
-In writ of prohibition the objective is for the respondent to desist
Does the filing of petition stay the proceedings? while in certiorari, the objective is to annul.
- NO.
-The petition shall not interrupt the course of the principal case Section 3. Petition for mandamus. — When any
unless a temporary restraining order or a writ of preliminary tribunal, corporation, board, officer or person
injunction has been issued against the public respondent from unlawfully neglects the performance of an act
further proceeding in the case (Sec. 7, Rule 65). which the law specifically enjoins as a duty
resulting from an office, trust, or station, or
Collateral Attack on Judgment unlawfully excludes another from the use and
-A collateral attack is made when, in another action to obtain a enjoyment of a right or office to which such other
different relief, an attack on the judgment is made as an incident is entitled, and there is no other plain, speedy and
in said action. This is proper only when the judgment, on its face, adequate remedy in the ordinary course of law,
is null and void, as where it is patent that the court, which the person aggrieved thereby may file a verified
rendered said judgment, has no jurisdiction (Co vs. CA, 196 SCRA petition in the proper court, alleging the facts with
705). certainty and praying that judgment be rendered
commanding the respondent, immediately or at
Section 2. Petition for prohibition. — When the some other time to be specified by the court, to
proceedings of any tribunal, corporation, do the act required to be done to protect the
board, officer or person, whether exercising rights of the petitioner, and to pay the damages
judicial, quasi-judicial or ministerial functions, sustained by the petitioner by reason of the
are without or in excess of its or his jurisdiction, wrongful acts of the respondent.
or with grave abuse of discretion amounting to The petition shall also contain a sworn
lack or excess of jurisdiction, and there is no certification of non-forum shopping as provided in
appeal or any other plain, speedy, and the third paragraph of section 3, Rule 46. (3a)
adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified Mandamus
petition in the proper court, alleging the facts -When any tribunal, corporation, board, officer or person
with certainty and praying that judgment be unlawfully neglects the performance of an act which the law
rendered commanding the respondent to specifically enjoins as a duty resulting from an office, trust, or
desist from further proceedings in the action or station, or unlawfully excludes another from the use and
matter specified therein, or otherwise granting enjoyment of a right or office to which such other is entitled, and
such incidental reliefs as law and justice may there is no other plain, speedy and adequate remedy in the
require. ordinary course of law, the person aggrieved thereby may file a
The petition shall likewise be accompanied by a verified petition for mandamus to command the respondent to do
certified true copy of the judgment, order or the act required to be done to protect the rights of the petitioner
resolution subject thereof, copies of all (Sec. 3, Rule 65)
pleadings and documents relevant and
pertinent thereto, and a sworn certification of Subjects of Mandamus
non-forum shopping as provided in the third 1. Neglect to perform an act which the specifically enjoins as a duty.
paragraph of section 3, Rule 46. (2a) 2. Unlawful exclusion of another from the use and enjoyment of a
Prohibition right or office to which such other is entitled.
- It is an extra-ordinary writ commanding the tribunal,
corporation, board, officer or person, whether exercising Mandamus will lie to compel the doing of a ministerial act
judicial, quasi-judicial or ministerial functions, to desist from - The act is ministerial if the act is should be performed under a
further proceedings when such are conducted without or in given state of facts, in a prescribed manner, in obedience to the
excess of its or his jurisdiction, or with grave abuse of discretion mandate of a legal authority, without regard to the exercise of
amounting to lack or excess of jurisdiction, there being no judgment upon the propriety or impropriety of the act done (Cudia
appeal or any other plain, speedy, and adequate remedy in the vs. Superintendent of PMA, February 24, 2015)
ordinary course of law (Sec. 2, Rule 65).
Mandamus will not lie on the following cases:
Requisites - Mandamus will not lie to compel the discretion of the judge to
(a) it must be directed against a tribunal, corporation, board or decide a motion pending before him in a particular way (Morada
person exercising functions, judicial or ministerial; vs. Caluag, 5 SCRA 1128, 1130).
(b) the tribunal, corporation, board or person has acted without - Mandamus will not lie against a government school or an official
or in excess of its jurisdiction, or with grave abuse of discretion; with the duty that involves exercise of discretion like admission of
and the students (UP vs. Ayson, 176 SCRA 571, 577)
(c) there is no appeal or any other plain, speedy, and adequate - Mandamus will not lie to compel UP to allow the graduation of a
remedy in the ordinary course of law (Belmonte vs. Deputy student who failed to meet the requirements (Magtibay vs. Garcia,
Ombudsman, January 13, 2016). 120 SCRA 370, 374).
- Mandamus will not lie to compel the prosecutor to file an
Prohibition vs. Certiorari Information (Hegerty vs. CA, 409 SCRA 285)
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Amilhamja, Adj.
- Mandamus will not lie to compel the PMA to restore cadet’s Section 6. Order to comment. — If the petition is
rights and entitlement as a full- fledge graduating cadet (Cudia sufficient in form and substance to justify such
vs. Superintendent of PMA, February 24, 2015) process, the court shall issue an order requiring
the respondent or respondents to comment on
Section 4. When and where petition filed. — the petition within ten (10) days from receipt of a
The petition shall be filed not later than sixty copy thereof. Such order shall be served on the
(60) days from notice of the judgment, order or respondents in such manner as the court may
resolution. In case a motion for reconsideration direct together with a copy of the petition and any
or new trial is timely filed, whether such annexes thereto.
motion is required or not, the sixty (60) day In petitions for certiorari before the Supreme
period shall be counted from notice of the Court and the Court of Appeals, the provisions of
denial of said motion. section 2, Rule 56, shall be observed. Before giving
The petition shall be filed in the Supreme Court due course thereto, the court may require the
or, if it relates to the acts or omissions of a respondents to file their comment to, and not a
lower court or of a corporation, board, officer motion to dismiss, the petition. Thereafter, the
or person, in the Regional Trial Court exercising court may require the filing of a reply and such
jurisdiction over the territorial area as defined other responsive or other pleadings as it may
by the Supreme Court. It may also be filed in the deem necessary and proper. (6a)
Court of Appeals whether or not the same is in
aid of its appellate jurisdiction, or in the Section 7. Expediting proceedings; injunctive
Sandiganbayan if it is in aid of its appellate relief. — The court in which the petition is filed
jurisdiction. If it involves the acts or omissions may issue orders expediting the proceedings, and
of a quasi-judicial agency, unless otherwise it may also grant a temporary restraining order or
provided by law or these Rules, the petition a writ of preliminary injunction for the
shall be filed in and cognizable only by the preservation of the rights of the parties pending
Court of Appeals. such proceedings. The petition shall not interrupt
No extension of time to file the petition shall be the course of the principal case unless a
granted except for compelling reason and in no temporary restraining order or a writ of
case exceeding fifteen (15) days. (4a) (Bar preliminary injunction has been issued against the
Matter No. 803, 21 July 1998; A.M. No. 00-2-03- public respondent from further proceeding in the
SC) case. (7a)
Section 5. Respondents and costs in certain Section 8. Proceedings after comment is filed. —
cases. — When the petition filed relates to the After the comment or other pleadings required by
acts or omissions of a judge, court, quasi- the court are filed, or the time for the filing
judicial agency, tribunal, corporation, board, thereof has expired, the court may hear the case
officer or person, the petitioner shall join, as or require the parties to submit memoranda. If
private respondent or respondents with such after such hearing or submission of memoranda or
public respondent or respondents, the person the expiration of the period for the filing thereof
or persons interested in sustaining the the court finds that the allegations of the petition
proceedings in the court; and it shall be the are true, it shall render judgment for the relief
duty of such private respondents to appear and prayed for or to which the petitioner is entitled.
defend, both in his or their own behalf and in The court, however, may dismiss the petition if it
behalf of the public respondent or respondents finds the same to be patently without merit,
affected by the proceedings, and the costs prosecuted manifestly for delay, or that the
awarded in such proceedings in favor of the questions raised therein are too unsubstantial to
petitioner shall be against the private require consideration. (8a)
respondents only, and not against the judge,
court, quasi-judicial agency, tribunal, Section 9. Service and enforcement of order or
corporation, board, officer or person judgment. — A certified copy of the judgment
impleaded as public respondent or rendered in accordance with the last preceding
respondents. section shall be served upon the court, quasi-
Unless otherwise specifically directed by the judicial agency, tribunal, corporation, board,
court where the petition is pending, the public officer or person concerned in such manner as the
respondents shall not appear in or file an court may direct, and disobedience thereto shall
answer or comment to the petition or any be punished as contempt. An execution may issue
pleading therein. If the case is elevated to a for any damages or costs awarded in accordance
higher court by either party, the public with section 1 of Rule 39. (9a)
respondents shall be included therein as
nominal parties. However, unless otherwise
specifically directed by the court, they shall not
appear or participate in the proceedings
therein. (5a)
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person; but in such case the officer bringing it may

RULE 66 first require an indemnity for the expenses and
Quo Warranto costs of the action in an amount approved by and
to be deposited in the court by the person at
Section 1. Action by Government against whose request and upon whose relation the same
individuals. — An action for the usurpation of a is brought. (4a)
public office, position or franchise may be
commenced by a verified petition brought in Section 4. When hearing had on application for
the name of the Republic of the Philippines permission to commence action. — Upon
against: application for permission to commence such
(a) A person who usurps, intrudes into, or action in accordance with the next preceding
unlawfully holds or exercises a public office, section, the court shall direct that notice be given
position or franchise; to the respondent so that he may be heard in
(b) A public officer who does or suffers an act opposition thereto; and if permission is granted,
which, by the provision of law, constitutes a the court shall issue an order to that effect, copies
ground for the forfeiture of his office; or of which shall be served on all interested parties,
(c) An association which acts as a corporation and the petition shall then be filed within the
within the Philippines without being legally period ordered by the court. (5a)
incorporated or without lawful authority so to
act. (1a) Section 5. When an individual may commence
such an action. — A person claiming to be entitled
Quo Warranto to a public office or position usurped or unlawfully
-It is a proceeding generally defined as an action against a held or exercised by another may bring an action
person who usurp, intrudes into, or unlawfully holds or therefor in his own name. (6)
exercise a public office (Tecson vs. COMELEC, 424 SCRA 277,
326) or even a public franchise (Sec. 1, Rule 66). May it be filed by an individual?
-YES
Quo warranto that may be brought by the government: -A person claiming to be entitled to a public office or position
(a) Against a person who usurps, intrudes into, or unlawfully usurped or unlawfully held or exercised by another may bring an
holds or exercises a public office, position or franchise; action therefor in his own name (Sec. 5, Rule 66).
(b) Against a public officer who does or suffers an act which,
by the provision of law, constitutes a ground for the forfeiture
of his office; or Section 6. Parties and contents of petition against
(c) Against an association which acts as a corporation within usurpation. — When the action is against a person
the Philippines without being legally incorporated or without for usurping a public office, position or franchise,
lawful authority so to act (Sec. 1, Rule 66). the petition shall set forth the name of the person
who claim to be entitled thereto, if any, with an
Who may commence the petition? averment of his right to the same and that the
• Solicitor General respondent is unlawfully in possession thereof. All
• Public prosecutor persons who claim to be entitled to the public
• Private person office, position or franchise may be made parties,
and their respective rights to such public office,
Section 2. When Solicitor General or public position or franchise determined, in the same
prosecutor must commence action. — The action. (7a)
Solicitor General or a public prosecutor, when
directed by the President of the Philippines, or Section 7. Venue. — An action under the
when upon complaint or otherwise he has good preceding six sections can be brought only in the
reason to believe that any case specified in the Supreme Court, the Court of Appeals, or in the
preceding section can be established by proof, Regional Trial Court exercising jurisdiction over
must commence such action. (3a) the territorial area where the respondent or any
of the respondents resides, but when the Solicitor
When may the solicitor general or public prosecutor General commences the action, it may be brought
commence the petition? in a Regional Trial Court in the City of Manila, in
1. When directed by the President of the Philippines; the Court of Appeals, or in the Supreme Court. (8a)
2. When upon complaint;
3. Or he has good reason to believe that the case should What is the jurisdiction and venue of petition?
be filed (Sec. 2, Rule 66). - An action under the preceding six sections can be brought only
in the Supreme Court, the Court of Appeals, or in the Regional
Section 3. When Solicitor General or public Trial Court exercising jurisdiction over the territorial area where
prosecutor may commence action with the respondent or any of the respondents resides, but when the
permission of court. — The Solicitor General or Solicitor General commences the action, it may be brought in a
a public prosecutor may, with the permission of Regional Trial Court in the City of Manila, in the Court of Appeals,
the court in which the action is to be or in the Supreme Court (Sec. 7, Rule 66).
commenced, bring such an action at the
request and upon the relation of another
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Amilhamja, Adj.
authorize an action for damages in accordance with the provisions

Section 8. Period for pleadings and proceedings of the next preceding section unless the same be commenced
may be reduced; action given precedence. — within one (1) year after the entry of the judgment establishing
The court may reduce the period provided by the petitioner's right to the office in question (Sec. 11, Rule 66).
these Rules for filing pleadings and for all other
proceedings in the action in order to secure the Section 12. Judgment for costs. — In an action
most expeditious determination of the matters brought in accordance with the provisions of this
involved therein consistent with the rights of Rule, the court may render judgment for costs
the parties. Such action may be given against either the petitioner, the relator, or the
precedence over any other civil matter pending respondent, or the person or persons claiming to
in the court. (9a) be a corporation, or may apportion the costs, as
justice requires. (17a)
Section 9. Judgment where usurpation found.
— When the respondent is found guilty of
usurping into, intruding into, or unlawfully
holding or exercising a public office, position or
franchise, judgment shall be rendered that such
respondent be ousted and altogether excluded
therefrom, and that the petitioner or relator, as
the case may be, recover his costs. Such further
judgment may be rendered determining the
respective rights in and to the public office,
position or franchise of all the parties to the
action as justice requires. (10a)
Section 10. Rights of persons adjudged entitled

to public office; delivery of books and papers;
damages. — If judgment be rendered in favor
of the person averred in the complaint to be
entitled to the public office he may, after taking
the oath of office and executing any official
bond required by law, take upon himself the
execution of the office, and may immediately
thereafter demand of the respondent all the
books and papers in the respondent's custody
or control appertaining to the office to which
the judgment relates. If the respondent refuses
or neglects to deliver any book or paper
pursuant to such demand, he may be punished
for contempt as having disobeyed a lawful
order of the court. The person adjudged
entitled to the office may also bring action
against the respondent to recover the damages
sustained by such person by reason of the
usurpation. (15a)
Section 11. Limitations. — Nothing contained in

this Rule shall be construed to authorize an
action against a public officer or employee for
his ouster from office unless the same be
commenced within one (1) year after the cause
of such ouster, or the right of the petitioner to
hold such office or position, arose, nor to
authorize an action for damages in accordance
with the provisions of the next preceding
section unless the same be commenced within
one (1) year after the entry of the judgment
establishing the petitioner's right to the office
in question. (16a)
What is the period for the filing of petition?
- Nothing contained in this Rule shall be construed to
authorize an action against a public officer or employee for his
ouster from office unless the same be commenced within one
(1) year after the cause of such ouster, or the right of the
petitioner to hold such office or position, arose; nor to
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Amilhamja, Adj.
RULE 67 Section 1. The complaint. — The right of eminent

Expropriation domain shall be exercised by the filing of a verified
Expropriation complaint which shall state with certainty the
- Power of eminent domain is one of the fundamental powers right and purpose of expropriation, describe the
of the state. real or personal property sought to be
- Sec. 9, Art. III is not a conferment of the power, but rather a expropriated, and join as defendants all persons
limitation. owning or claiming to own, or occupying, any part
- Two requisites for the validity of the exercise of the power of thereof or interest therein, showing, so far as
eminent domain is that 1) it must be exercise for public practicable, the separate interest of each
purpose; 2) payment of just compensation. defendant. If the title to any property sought to be
- Power of eminent domain can be used as implement of police expropriated appears to be in the Republic of the
power. Philippines, although occupied by private
- Expropriation is not limited to acquisition of title. Burden to a individuals, or if the title is otherwise obscure or
property is tantamount to “taking”. doubtful so that the plaintiff cannot with accuracy
or certainty specify who are the real owners,
Concept of “public use” averment to that effect shall be made in the
- The concept has been expanded. It is not limited to actual complaint. (1a)
“public use”. What must be alleged in the petition?
- The meaning include “usefulness, utility, or advantage or -State with certainty the right of the plaintiff to expropriation and
what is productive of general benefit...(Vda de Ouano vs. the purpose thereof
Republic, 642 SCRA 384, 408-409). Example, socialized housing - Describe the personal and real property sought to be
(Abad vs. Fil-Homes Relaty Realty Development Corp., 636 expropriated.
SCRA 247, 254). - Join as defendants all person owning or claiming to own, or
occupying any property or any interest therein, showing as far as
Concept of “just compensation” practicable the interest of defendant. If the plaintiff cannot
- It is the full and fair equivalent of property taken form its identify the owner, it must be so stated (Sec. 1, Rule 67).
owner by the expropriator. The measure is not the taker’s gain,
but the owner’s loss. The word “just” is used to intensify the Section 2. Entry of plaintiff upon depositing value
meaning of the word “compensation” and to convey the idea with authorized government depositary. — Upon
that the equivalent to be rendered for the property to be taken the filing of the complaint or at any time
shall be real, substantial, full and ample. It is equivalent to the thereafter and after due notice to the defendant,
market value of the property (Republic vs. Rural Bank of the plaintiff shall have the right to take or enter
Kabacan, Inc., 664 SCRA 233, 244) upon the possession of the real property involved
if he deposits with the authorized government
Can the government divert the use of property taken different depositary an amount equivalent to the assessed
from the purpose for which the petition was filed? value of the property for purposes of taxation to
- No. a condemnor should commit the use of the property be held by such bank subject to the orders of the
pursuant to the purpose stated in the petition for court. Such deposit shall be in money, unless in
expropriation, failing which it should file another petition for lieu thereof the court authorizes the deposit of a
new purpose. If not, then it behooves the condemnor to return certificate of deposit of a government bank of the
the said property to its owner, if the latter so desires (Vda. De Republic of the Philippines payable on demand to
Ounao vs. Republic, 642 SCRA 385, 409) the authorized government depositary.
If personal property is involved, its value shall be
Eminent domain of LGU, requisites: provisionally ascertained and the amount to be
• There must be an ordinance enacted for the purpose. deposited shall be promptly fixed by the court.
• The power of eminent domain is exercised for public After such deposit is made the court shall order
use, purpose or welfare or for the benefit of the poor the sheriff or other proper officer to forthwith
• and landless. place the plaintiff in possession of the property
• It must be exercised through its chief executive. involved and promptly submit a report thereof to
• Payment of just compensation. the court with service of copies to the parties. (2a)
• There must be previous offer to buy but it was refused
(Sec. 19, LGC, RA7160) Section 3. Defenses and objections. — If a
defendant has no objection or defense to the
***What are the stages in expropriation process? action or the taking of his property, he may file
- First stage – the determination of the authority of the plaintiff and serve a notice of appearance and a
to expropriate. This determination includes an inquiry into the manifestation to that effect, specifically
propriety of the expropriation – its necessity and the public designating or identifying the property in which
purpose. he claims to be interested, within the time stated
-Second stage – determination of just compensation in the summons. Thereafter, he shall be entitled
(Municipality of Binan vs. Garcia, 180 SCRA 576, 583-584) to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or
the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
serve his answer within the time stated in the
summons. The answer shall specifically designate
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Amilhamja, Adj.
or identify the property in which he claims to -Under R.A. 8974 – with respect to government infrastructure
have an interest, state the nature and extent of project, upon filing of complaint and payment to the owner of
the interest claimed, and adduce all his sum equivalent100% of the value of the property based on
objections and defenses to the taking of his current relevant zonal valuation.
property. No counterclaim, cross-claim or third-
party complaint shall be alleged or allowed in Please take note:
the answer or any subsequent pleading. -If LGC is not applicable or that the property taken is not for
A defendant waives all defenses and objections government infrastructure project, it is Rule 67, Section 2 which is
not so alleged but the court, in the interest of applicable with respect to when possession should be allowed
justice, may permit amendments to the answer (Republic vs. Gingoyon, 478 SCRA 474, 515-518).
to be made not later than ten (10) days from
the filing thereof. However, at the trial of the Section 4. Order of expropriation. — If the
issue of just compensation whether or not a objections to and the defenses against the right of
defendant has previously appeared or the plaintiff to expropriate the property are
answered, he may present evidence as to the overruled, or when no party appears to defend as
amount of the compensation to be paid for his required by this Rule, the court may issue an order
property, and he may share in the distribution of expropriation declaring that the plaintiff has a
of the award. (n) lawful right to take the property sought to be
What are the defenses and objection in the answer? expropriated, for the public use or purpose
- If a defendant has no objection or defense to the action or the described in the complaint, upon the payment of
taking of his property, he may file and serve a notice of just compensation to be determined as of the date
appearance and a manifestation to that effect, specifically of the taking of the property or the filing of the
designating or identifying the property in which he claims to be complaint, whichever came first.
interested, within the time stated in the summons. Thereafter, A final order sustaining the right to expropriate
he shall be entitled to notice of all proceedings affecting the the property may be appealed by any party
same (Sec. 3, Rule 67). aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the just
Is omnibus motion rule applicable? compensation to be paid.
-Yes. After the rendition of such an order, the plaintiff
-A defendant waives all defenses and objections shall not be permitted to dismiss or discontinue
not so alleged but the court, in the interest of justice, may the proceeding except on such terms as the court
permit amendments to the answer to be made not later than deems just and equitable. (4a)
ten (10) days from the filing thereof (Sec. 3, Rule 67). What is the effect if objections of the defendant are overruled or
the defendant did not object on the authority and purpose of the
May the defendant be declared in default in presenting expropriation or no party appears to object
evidence on just compensation? - The court may issue an order of expropriation declaring that the
-No. plaintiff has a lawful right to take the property sought to be
-At the trial of the issue of just compensation, expropriated, for the public use or purpose described in the
whether or not a defendant has previously appeared or complaint, upon the payment of just compensation to be
answered, he may present evidence as to the amount of the determined as of the date of the taking of the property or the
compensation to be paid for his property, and he may share in filing of the complaint, whichever came first (Sec. 4, Rule 67).
the distribution of the award. (Sec. 3, Rule 67).
What is the nature of order of expropriation?
Which court has jurisdiction? - It is a final order which susceptible to appeal. Such appeal,
-It is the RTC has jurisdiction because petition for expropriation however, shall not prevent the court from determining the just
is an action incapable of pecuniary estimation regardless of the compensation to be paid (Sec.4, Rule 67).
value of the subject property (Barangay San Roque vs. Heirs of - Also, The right of the plaintiff to enter upon the property of the
Pastor, 334 SCRA 127, 134). defendant and appropriate the same for public use or purpose
shall not be delayed by an appeal from the judgment (Sec. 11,
When is possession on the property allowed? Rule 67).
-Under the Rules of Court – upon the deposits by expropriator
of an amount equivalent to the assessed value of the property What if the RTC is reversed on appeal?
for purposes of taxation with the authorized government - if the appellate court determines that plaintiff has no right of
depositary (Sec. 2, Rule 67). expropriation, judgment shall be rendered ordering the Regional
-After such deposit is made the court shall order the sheriff or Trial Court to forthwith enforce the restoration to the defendant
other proper officer to forthwith place the plaintiff in of the possession of the property, and to determine the damages
possession of the property involved and promptly submit a which the defendant sustained and may recover by reason of the
report thereof to the court with service of copies to the parties possession taken by the plaintiff (Sec. 11, Rule 67).
(Sec. 2, id.).
Rule on ascertainment of just compensation?
When is possession on the property allowed? - Appointment of 3 commissioners is mandatory (Se. 5, Rule 67).
-Under the LGC – LGU may take possession of the property - Hearing before commissioners are indispensable.
upon filing of petition and after making deposit of 15% of the - Trial with aid of commissioner is substantial right (NPC vs.
market value of property based on the current tax declaration De la Cruz, 514 SCRA 56).
(Sec. 19, LGC.). - The findings of commissioner may be disregarded by the
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Amilhamja, Adj.
Judge but, the latter may do so only for valid reason (NPC Section 7. Report by commissioners and judgment
vs. Dela Cruz, id.). thereupon. — The court may order the
- Just compensation should be determined as of the date of commissioners to report when any particular
the taking of the property or the filing of the complaint, portion of the real estate shall have been passed
whichever came first (Sec. 4, Rule 67). upon by them, and may render judgment upon
such partial report, and direct the commissioners
What is the effect of non-payment of just compensation? to proceed with their work as to subsequent
- Non-payment of just compensation does not automatically portions of the property sought to be
entitle the private landowner to recover possession of the expropriated, and may from time to time so deal
expropriated lots. However, in cases where the government with such property. The commissioners shall make
failed to pay just compensation within five (5) years from the a full and accurate report to the court of all their
finality of judgment in the expropriation proceedings, the proceedings, and such proceedings shall not be
owners concerned shall have the right to recover possession of effectual until the court shall have accepted their
their property (Republic vs. Lim, 462 SCRA 265, 288-289) report and rendered judgment in accordance with
their recommendations. Except as otherwise
Section 5. Ascertainment of compensation. — expressly ordered by the court, such report shall
Upon the rendition of the order of be filed within sixty (60) days from the date the
expropriation, the court shall appoint not more commissioners were notified of their
than three (3) competent and disinterested appointment, which time may be extended in the
persons as commissioners to ascertain and discretion of the court. Upon the filing of such
report to the court the just compensation for report, the clerk of the court shall serve copies
the property sought to be taken. The order of thereof on all interested parties, with notice that
appointment shall designate the time and place they are allowed ten (10) days within which to file
of the first session of the hearing to be held by objections to the findings of the report, if they so
the commissioners and specify the time within desire. (7a)
which their report shall be submitted to the
court. Section 8. Action upon commissioners' report. —
Copies of the order shall be served on the Upon the expiration of the period of ten (10) days
parties. Objections to the appointment of any referred to in the preceding section, or even
of the commissioners shall be filed with the before the expiration of such period but after all
court within ten (10) days from service, and the interested parties have filed their objections
shall be resolved within thirty (30) days after all to the report or their statement of agreement
the commissioners shall have received copies therewith, the court may, after hearing, accept
of the objections. (5a) the report and render judgment in accordance
therewith, or, for cause shown, it may recommit
Section 6. Proceedings by commissioners. — the same to the commissioners for further report
Before entering upon the performance of their of facts, or it may set aside the report and appoint
duties, the commissioners shall take and new commissioners; or it may accept the report in
subscribe an oath that they will faithfully part and reject it in part and it may make such
perform their duties as commissioners, which order or render such judgment as shall secure to
oath shall be filed in court with the other the plaintiff the property essential to the exercise
proceedings in the case. Evidence may be of his right of expropriation, and to the defendant
introduced by either party before the just compensation for the property so taken. (8a)
commissioners who are authorized to
administer oaths on hearings before them, and Section 9. Uncertain ownership; conflicting
the commissioners shall, unless the parties claims. — If the ownership of the property taken
consent to the contrary, after due notice to the is uncertain, or there are conflicting claims to any
parties, to attend, view and examine the part thereof, the court may order any sum or sums
property sought to be expropriated and its awarded as compensation for the property to be
surroundings, and may measure the same, paid to the court for the benefit of the person
after which either party may, by himself or adjudged in the same proceeding to be entitled
counsel, argue the case. The commissioners thereto. But the judgment shall require the
shall assess the consequential damages to the payment of the sum or sums awarded to either
property not taken and deduct from such the defendant or the court before the plaintiff can
consequential damages the consequential enter upon the property, or retain it for the public
benefits to be derived by the owner from the use or purpose if entry has already been made.
public use or purpose of the property taken, the (9a)
operation of its franchise by the corporation or
the carrying on of the business of the Section 10. Rights of plaintiff after judgment and
corporation or person taking the property. But payment. — Upon payment by the plaintiff to the
in no case shall the consequential benefits defendant of the compensation fixed by the
assessed exceed the consequential damages judgment, with legal interest thereon from the
assessed, or the owner be deprived of the taking of the possession of the property, or after
actual value of his property so taken. (6a) tender to him of the amount so fixed and payment
of the costs, the plaintiff shall have the right to
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Amilhamja, Adj.
enter upon the property expropriated and to

appropriate it for the public use or purpose
defined in the judgment, or to retain it should
he have taken immediate possession thereof
under the provisions of section 2 hereof. If the
defendant and his counsel absent themselves
from the court, or decline to receive the
amount tendered, the same shall be ordered to
be deposited in court and such deposit shall
have the same effect as actual payment thereof
to the defendant or the person ultimately
adjudged entitled thereto. (10a)
Section 11. Entry not delayed by appeal; effect

of reversal. — The right of the plaintiff to enter
upon the property of the defendant and
appropriate the same for public use or purpose
shall not be delayed by an appeal from the
judgment. But if the appellate court
determines that plaintiff has no right of
expropriation, judgment shall be rendered
ordering the Regional Trial Court to forthwith
enforce the restoration to the defendant of the
possession of the property, and to determine
the damages which the defendant sustained
and may recover by reason of the possession
taken by the plaintiff. (11a)
Section 12. Costs, by whom paid. — The fees of

the commissioners shall be taxed as a part of
the costs of the proceedings. All costs, except
those of rival claimants litigating their claims,
shall be paid by the plaintiff, unless an appeal
is taken by the owner of the property and the
judgment is affirmed, in which event the costs
of the appeal shall be paid by the owner. (12a)
Section 13. Recording judgment, and its effect.

— The judgment entered in expropriation
proceedings shall state definitely, by an
adequate description, the particular property
or interest therein expropriated, and the
nature of the public use or purpose for which it
is expropriated. When real estate is
expropriated, a certified copy of such judgment
shall be recorded in the registry of deeds of the
place in which the property is situated, and its
effect shall be to vest in the plaintiff the title to
the real estate so described for such public use
or purpose. (13a)
Section 14. Power of guardian in such

proceedings. — The guardian or guardian ad
litem of a minor or of a person judicially
declared to be incompetent may, with the
approval of the court first had, do and perform
on behalf of his ward any act, matter, or thing
respecting the expropriation for public use or
purpose of property belonging to such minor or
person judicially declared to be incompetent,
which such minor or person judicially declared
to be incompetent could do in such proceedings
if he were of age or competent. (14a)
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Amilhamja, Adj.
RULE 68 and shall render judgment for the sum so found

Foreclosure of Real Estate Mortgage due and order that the same be paid to the court
or to the judgment obligee within a period of not
Section 1. Complaint in action for foreclosure. less than ninety (90) days nor more than one
— In an action for the foreclosure of a mortgage hundred twenty (120) days from the entry of
or other encumbrance upon real estate, the judgment, and that in default of such payment the
complaint shall set forth the date and due property shall be sold at public auction to satisfy
execution of the mortgage; its assignments, if the judgment. (2a)
any; the names and residences of the
mortgagor and the mortgagee; a description of What should the judgment in judicial foreclosure contain?
the mortgaged property; a statement of the - Ascertainment of the amount due to the plaintiff upon the
date of the note or other documentary mortgage debt or obligation, including interest and other charges
evidence of the obligation secured by the as approved by the court, and costs;
mortgage, the amount claimed to be unpaid - The sum so found due
thereon; and the names and residences of all - Order the amount found due to be paid to the court or to the
persons having or claiming an interest in the judgment obligee within a period of not less than ninety (90) days
property subordinate in right to that of the nor more than one hundred twenty (120) days from the entry of
holder of the mortgage, all of whom shall be judgment,
made defendants in the action. (1a) - and admonition that in default of such payment the property
shall be sold at public auction to satisfy the judgment (Section 2).
-Action quasi in rem to! - The judgment is appealable.
Please take note:
- In an indebtedness subject to mortgage, the creditor has the What is equity of redemption?
following alternative remedies: - It is the period within which the mortgagor may start exercising
◦ To file an action for collection of sum of money. his equity of redemption, which is the right to extinguish the
◦ To foreclose the mortgage. mortgage and retain ownership of the property by paying the
- The remedies are mutually exclusive; such that the availment debt. The payment may be made even after the foreclosure sale
of one, excludes the other. Therefore, if one files a collection provided it is made before the sale is confirmed by court (GSIS vs.
suit and then thereafter files a petition for foreclosure of CFI, 175 SCRA 19, 25).
mortgage, the same constitute a splitting of cause of action
(Bank of America, NT & SA vs. Amreican Realty Corp, 321 SCRA Section 3. Sale of mortgaged property; effect. —
659, 667-669; Marilag vs. martinez, July 22, 2015). When the defendant, after being directed to do so
as provided in the next preceding section, fails to
Jurisdiction of judicial foreclosure pay the amount of the judgment within the period
-Judicial foreclosure is a real action. Thus, jurisdiction depends specified therein, the court, upon motion, shall
on the assessed value of real property. order the property to be sold in the manner and
- Thus, if the value of real property is 20K below in the under the provisions of Rule 39 and other
provinces of 50K below in the NCR, the jurisdiction is with the regulations governing sales of real estate under
MTC; otherwise, it is the RTC. execution. Such sale shall not affect the rights of
persons holding prior encumbrances upon the
What are the different modes of foreclosing mortgage? property or a part thereof, and when confirmed by
-Judicial foreclosure under Rule 68 an order of the court, also upon motion, it shall
-Extra-judicial foreclosure under Act 3135, as amended by 4118 operate to divest the rights in the property of all
the parties to the action and to vest their rights in
What should be alleged in the complaint? the purchaser, subject to such rights of
-Date and due execution of the mortgage; redemption as may be allowed by law.
-its assignments, if any; Upon the finality of the order of confirmation or
-the names and residences of the mortgagor and the upon the expiration of the period of redemption
mortgagee; when allowed by law, the purchaser at the auction
-a description of the mortgaged property; a statement of sale or last redemptioner, if any, shall be entitled
the date of the note or other documentary evidence of to the possession of the property unless a third
the obligation secured by the mortgage, party is actually holding the same adversely to the
-the amount claimed to be unpaid thereon; judgment obligor. The said purchaser or last
-and the names and residences of all persons having or redemptioner may secure a writ of possession,
claiming an interest in the property subordinate in right to that upon motion, from the court which ordered the
of the holder of the mortgage, all of whom shall be made foreclosure. (3a)
defendants in the action (Section 1, Rule 68).
What is the effect if the mortgagor failed to pay the sum due
Section 2. Judgment on foreclosure for within the period given?
payment or sale. — If upon the trial in such -The court, upon motion, shall order the property to be sold in the
action the court shall find the facts set forth in manner and under the provisions of Rule 39 and other regulations
the complaint to be true, it shall ascertain the governing sales of real estate under execution (Sec. 3, Rule 57).
amount due to the plaintiff upon the mortgage - There should be motion, but the motion is ex-parte (Govt. of PI
debt or obligation, including interest and other vs. De Las Lajigas, 55 Phil 668, 672).
charges as approved by the court, and costs,
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What should the mortgagee do, after the sale of the mortgage Section 6. Deficiency judgment. — If upon the sale
property is made? of any real property as provided in the next
- He should file a motion for confirmation of sale (Sec. 3. Rule preceding section there be a balance due to the
68). plaintiff after applying the proceeds of the sale,
- Here the motion requires notice and hearing (Tiglao vs. the court, upon motion, shall render judgment
Botones, 90 Phil. 275, 278). against the defendant for any such balance for
- The confirmation of sale shall operate to divest the rights in which, by the record of the case, he may be
the property of all the parties to action and vest the rights in personally liable to the plaintiff, upon which
the purchaser, subject to the rights of redemption under the execution may issue immediately if the balance is
law (Sec. 3, Rule 68). all due at the time of the rendition of the
- Order of confirmation is appealable. judgment; otherwise; the plaintiff shall be entitled
to execution at such time as the balance
What is the effect of finality of the confirmation of the sale? remaining becomes due under the terms of the
- Upon the finality of the order of confirmation or upon the original contract, which time shall be stated in the
expiration of the period of redemption when allowed by law, judgment. (6a)
the purchaser at the auction sale or last redemptioner, if any, Is the mortgagee entitled to deficiency?
shall be entitled to the possession of the property unless a - Yes.
third party is actually holding the same adversely to the - If upon the sale of any real property, there be a
judgment obligor. The said purchaser or last redemptioner may balance due to the plaintiff after applying the proceeds of the
secure a writ of possession, upon motion, from the court which sale, the court, upon motion, shall render judgment against the
ordered the foreclosure (Sec. 3, Rule 68). defendant for any such balance for which he may be personally
- The motion is ex-parte (Carlos vs. CA, 537 SCRA 247, 253). liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of
Section 4. Disposition of proceeds of sale. — the judgment; otherwise, the plaintiff shall be entitled to
The amount realized from the foreclosure sale execution at such time as the balance remaining becomes due
of the mortgaged property shall, after under the terms of the original contract, which time shall be
deducting the costs of the sale, be paid to the stated in the judgment (Sec. 6, Rule 68).
person foreclosing the mortgage, and when
there shall be any balance or residue, after Is there still a need to file a separate case to recover the
paying off the mortgage debt due, the same deficiency?
shall be paid to junior encumbrancers in the - No need.
order of their priority, to be ascertained by the -A motion for the recovery of deficiency can be filed in the same
court, or if there be no such encumbrancers or court where judicial foreclosure was filed (Sec. 6, Rule 68).
there be a balance or residue after payment to
them, then to the mortgagor or his duly Section 7. Registration. — A certified copy of the
authorized agent, or to the person entitled to final order of the court confirming the sale shall be
it. (4a) registered in the registry of deeds. If no right of
Disposition of the proceeds of sale redemption exists, the certificate of title in the
- They shall, after deducting the costs of the sale, be paid to the name of the mortgagor shall be cancelled, and a
person foreclosing the mortgage, and when there shall be any new one issued in the name of the purchaser.
balance or residue, after paying off the mortgage debt due, the Where a right of redemption exists, the certificate
same shall be paid to junior encumbrancers in the order of of title in the name of the mortgagor shall not be
their priority, to be ascertained by the court, or if there be no cancelled, but the certificate of sale and the order
such encumbrancers or there be a balance or residue after confirming the sale shall be registered and a brief
payment to them, then to the mortgagor or his duly authorized memorandum thereof made by the registrar of
agent, or to person entitled to it (Sec. 4, Rule 68). deeds upon the certificate of title. In the event the
property is redeemed, the deed of redemption
Section 5. How sale to proceed in case the debt shall be registered with the registry of deeds, and
is not all due. — If the debt for which the a brief memorandum thereof shall be made by the
mortgage or encumbrance was held is not all registrar of deeds on said certificate of title.
due as provided in the judgment as soon as a If the property is not redeemed, the final deed of
sufficient portion of the property has been sold sale executed by the sheriff in favor of the
to pay the total amount and the costs due, the purchaser at the foreclosure sale shall be
sale shall terminate; and afterwards as often as registered with the registry of deeds; whereupon
more becomes due for principal or interest and the certificate of title in the name of the
other valid charges, the court may, on motion, mortgagor shall be cancelled and a new one
order more to be sold. But if the property issued in the name of the purchaser. (n)
cannot be sold in portions without prejudice to
the parties, the whole shall be ordered to be Section 8. Applicability of other provisions. — The
sold in the first instance, and the entire debt provisions of sections 31, 32 and 34 of Rule 39
and costs shall be paid, if the proceeds of the shall be applicable to the judicial foreclosure of
sale be sufficient therefor, there being a rebate real estate mortgages under this Rule insofar as
of interest where such rebate is proper. (5a) the former are not inconsistent with or may serve
to supplement the provisions of the latter. (8a)
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RULE 69 estate may do so (Sec. 1, Rule 69).

Partition
What has to be alleged in the complaint?
Section 1. Complaint in action for partition of - The nature and extent of his title;
real estate. — A person having the right to - Adequate description of the real estate of which
compel the partition of real estate may do so as partition is demanded;
provided in this Rule, setting forth in his - Joining as defendants all other persons interested in the
complaint the nature and extent of his title and property (Sec. 1, Rule 69).
an adequate description of the real estate of
which partition is demanded and joining as What is the procedure after the court declared that co-ownership
defendants all other persons interested in the exists and that the plaintiff has the right to partition the property?
property. (1a) - Court will direct the parties to partition the property among
Partition themselves (Sec. 2, Rule 69).
- Partition is defined as the separation, division and assignment - If the don’t agree, the parties shall appoint three (3)
of a thing held in common among those to whom it may belong independent commissioners to make the partition (Sec. 2, Rule
(Art. 1079, CC). 69).
- Partition presupposes the existence of a co-ownership over a - Commissioners will submit their full and accurate report. The
property between two or more persons. Thus, a division of Court upon receipt of the report, shall through its clerk of court
property cannot be ordered by the court unless the existence furnished the parties of the report. They are allowed to comment
of co-ownership is first established (Co Giuk Lun vs. Co, 655 or register their objection to the report within (10) days from the
SCRA 131, 138). receipt thereof (Sec. 7, Rule 69).
Instances where co-owner may not demand partition What should be the action of the court after the filing of the
- There is agreement not to divide for a period of time, not report?
exceeding ten (10) years (Art. 494). - Court may, upon hearing, accept the report and render
- The partition is prohibited by the donor for a period not judgment in accordance therewith;
exceeding 20 years (Art. 494 and 1083 CC) -For cause shown, recommit the same to the commissioners for
- When partition is prohibited by law (494, CC) further report of facts;
- When property is not subject to a physical division - Or set aside the report and appoint new commissioners;
(495, CC) - Or accept the report in part and reject it in part; and may make
- When condition is imposed but not yet fulfilled (1084, CC) such order and render such judgment as shall effectuate a fair and
just partition of the real estate, or of its value, if assigned or sold
Prescription of action for partition as above provided, between
- It does not prescribe. Thus, a co-owner may filed the action the several owners thereof (Sec. 7, Rule 69).
for partition anytime (494, CC).
- However, when of the co-owner repudiated the co- Section 2. Order for partition and partition by
ownership, and the co-owner is advice of the repudiation such agreement thereunder. — If after the trial the
repudiating co-owner may acquire ownership thereof thru court finds that the plaintiff has the right thereto,
prescription (Heirs of Restar vs. Heirs of Cichon, 475 SCRA 731, it shall order the partition of the real estate among
738). all the parties in interest. Thereupon the parties
may, if they are able to agree, make the partition
Which court has jurisdiction? among themselves by proper instruments of
- Partition is a real action. Thus, jurisdiction depends on the conveyance, and the court shall confirm the
assessed value of real property. partition so agreed upon by all the parties, and
- Thus, if the value of real property is 20K below in the such partition, together with the order of the
provinces of 50K below in the NCR, the jurisdiction is with the court confirming the same, shall be recorded in
MTC; otherwise, it is the RTC the registry of deeds of the place in which the
property is situated. (2a)
What are the stages of partition? A final order decreeing partition and accounting
First phase may be appealed by any party aggrieved thereby.
• Determination whether co-ownership exists. This phase may (n)
end up with the declaration that plaintiff is not entitled to
partition. Section 3. Commissioners to make partition when
Second phase parties fail to agree. — If the parties are unable to
• Partition shall be done by the court in case the parties could agree upon the partition, the court shall appoint
not agree among themselves. not more than three (3) competent and
disinterested persons as commissioners to make
Please take note: the partition, commanding them to set off to the
- Both phases are subject to appeal. plaintiff and to each party in interest such part and
- The action for partition is subject to multiple appeals and proportion of the property as the court shall
would require record on appeal (Roman Catholic Archbishop of direct. (3a)
Manila vs. CA, 258 SCRA 186, 194).
Section 4. Oath and duties of commissioners. —
Who may file the petition? Before making such partition; the commissioners
- A person having the right to compel the partition of real shall take and subscribe an oath that they will
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faithfully perform their duties as Section 8. Accounting for rent and profits in action
commissioners, which oath shall be filed in for partition. — In an action for partition in
court with the other proceedings in the case. In accordance with this Rule, a party shall recover
making the partition, the commissioners shall from another his just share of rents and profits
view and examine the real estate, after due received by such other party from the real estate
notice to the parties to attend at such view and in question, and the judgment shall include an
examination, and shall hear the parties as to allowance for such rents and profits. (8a)
their preference in the portion of the property
to be set apart to them and the comparative Section 9. Power of guardian in such proceedings.
value thereof, and shall set apart the same to — The guardian or guardian ad litem of a minor or
the parties in lots or parcels as will be most person judicially declared to be incompetent may,
advantageous and equitable, having due regard with the approval of the court first had, do and
to the improvements, situation and quality of perform on behalf of his ward any act, matter, or
the different parts thereof. (4a) thing respecting the partition of real estate, which
the minor or person judicially declared to be
Section 5. Assignment or sale of real estate by incompetent could do in partition proceedings if
commissioners. — When it is made to appear he were of age or competent. (9a)
to the commissioners that the real state, or a
portion thereof, cannot be divided without Section 10. Costs and expenses to be taxed and
prejudice to the interests of the parties, the collected. — The court shall equitably tax and
court may order it assigned to one of the apportion between or among the parties the costs
parties willing to take the same, provided he and expenses which accrue in the action, including
pays to the other parties such amount as the the compensation of the commissioners, having
commissioners deem equitable, unless one of regard to the interests of the parties, and
the interested parties asks that the property be execution may issue therefor as in other cases.
sold instead of being so assigned, in which case (10a)
the court shall order the commissioners to sell
the real estate at public sale under such Section 11. The judgment and its effect; copy to be
conditions and within such time as the court recorded in registry of deeds. — If actual partition
may determine. (5a) of property is made, the judgment shall state
definitely, by metes and bounds and adequate
Section 6. Report of commissioners; description, the particular portion of the real
proceedings not binding until confirmed. — The estate assigned to each party, and the effect of the
commissioners shall make a full and accurate judgment shall be to vest in each party to the
report to the court of all their proceedings as to action in severalty the portion of the real estate
the partition, or the assignment of real estate assigned to him. If the whole property is assigned
to one of the parties, or the sale of the same. to one of the parties upon his paying to the others
Upon the filing of such report, the clerk of court the sum or sums ordered by the court, the
shall serve copies thereof on all the interested judgment shall state the fact of such payment and
parties with notice that they are allowed ten of the assignment of the real estate to the party
(10) days within which to file objections to the making the payment, and the effect of the
findings of the report, if they so desire. No judgment shall be to vest in the party making the
proceeding had before or conducted by the payment the whole of the real estate free from
commissioners and rendered judgment any interest on the part of the other parties to the
thereon. (6a) action. If the property is sold and the sale
confirmed by the court, the judgment shall state
Section 7. Action of the court upon the name of the purchaser or purchasers and a
commissioners report. — Upon the expiration definite description of the parcels of real estate
of the period of ten (10) days referred to in the sold to each purchaser, and the effect of the
preceding section or even before the expiration judgment shall be to vest the real estate in the
of such period but after the interested parties purchaser or purchasers making the payment or
have filed their objections to the report or their payments, free from the claims of any of the
statement of agreement therewith the court parties to the action. A certified copy of the
may, upon hearing, accept the report and judgment shall in either case be recorded in the
render judgment in accordance therewith, or, registry of deeds of the place in which the real
for cause shown recommit the same to the estate is situated, and the expenses of such
commissioners for further report of facts; or set recording shall be taxed as part of the costs of the
aside the report and appoint new action. (11a)
commissioners; or accept the report in part and
reject it in part; and may make such order and Section 12. Neither paramount rights nor
render such judgment as shall effectuate a fair amicable partition affected by this Rule. —
and just partition of the real estate, or of its Nothing in this Rule contained shall be construed
value, if assigned or sold as above provided, so as to prejudice, defeat, or destroy the right or
between the several owners thereof. (7) title of any person claiming the real estate
involved by title under any other person, or by
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title paramount to the title of the parties

among whom the partition may have been
made, nor so as to restrict or prevent persons
holding real estate jointly or in common from
making an amicable partition thereof by
agreement and suitable instruments of
conveyance without recourse to an action.
(12a)
Section 13. Partition of personal property. —

The provisions of this Rule shall apply to
partitions of estates composed of personal
property, or of both real and personal property,
in so far as the same may be applicable. (13)
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RULE 70 of disposition because if lapse ng 1 yr, accion publiciana na sya.

Forcible Entry and Unlawful Detainer -MAS MABILIS ang accion interdictal vs. accion publiciana
Section 1. Who may institute proceedings, and Please take note:

when. — Subject to the provisions of the next >Prior physical possession-is the primary consideration in a forcible
succeeding section, a person deprived of the entry case. A party who can prove prior physical possession can
possession of any land or building by force, recover such possession even against the owner himself (Antazo vs.
intimidation, threat, strategy, or stealth, or a Doblada, 611 SCRA 586).
lessor, vendor, vendee, or other person against
whom the possession of any land or building is What is the meaning of prior physical possession in forcible entry
unlawfully withheld after the expiration or cases?
termination of the right to hold possession, by - While prior physical possession is an indispensable requirement
virtue of any contract, express or implied, or in forcible entry cases, emphasis should be made however that
the legal representatives or assigns of any such possession can be acquired not only by material occupation, but
lessor, vendor, vendee, or other person, may, also by the fact that a thing is subject to the action of one's will or
at any time within one (1) year after such by the proper acts and legal formalities established for acquiring
unlawful deprivation or withholding of such right.
possession, bring an action in the proper - Possession can be acquired by juridical acts. These are acts to
Municipal Trial Court against the person or which the law gives the force of acts of possession.
persons unlawfully withholding or depriving of - Juridical acts were sufficient to establish the plaintiff's prior
possession, or any person or persons claiming possession of the subject property. (Mangaser vs. Ugay, December
under them, for the restitution of such 3, 2014).
possession, together with damages and costs.
(1a) What should be alleged in the complaint for unlawful detainer?
1. Possession of the property by the defendant was by contract
What are the three (3) kinds of possessory action? with or by tolerance of the plaintiff.
1. Accion interdictal- action for recovery of real property 2. Such possession became illegal upon notice by the plaintiff to the
2. Accion publiciana- action for recovery of real property; defendant of the termination of the latter’s possession.
difference is 1 yr prescription period 3. Defendant remained in possession of the property and deprived
3. Accion reinvindicatoria the plaintiff enjoyment thereof.
4. Within one (I) year from the last demand on the defendant to
Which court has jurisdiction over possessory actions? vacate the property, the plaintiff instituted the complaint for
- Accion interdictal – MTC, regardless of the value of real ejectment (Romullo vs. Samahang Magkakapitbahay ng Bayanihan
property and amount of damages or unpaid rentals. Compound Homeowners Association, 632 SCRA 411, 419-420).
- Accion publiciana – MTC or RTC, depending on the
assessed value of the real property. What is the effect if there is failure to alleged facts necessary for
- Accion reindivicatoria – MTC or RTC, depending on the value of forcible entry and unlawful detainer?
the real property. - The jurisdictional facts must appear on the face of the complaint.
When the complaint fails to aver facts constitutive of forcible entry
What are the two causes of actions under Rule 70? or unlawful detainer, as where it does not state how entry was
-sample of accion interdictal effected or how and when dispossession started, the remedy
1. Forcible entry – an action to recover possession of a property should either be an accion publiciana or accion reinvindicatoria
from the defendant whose occupation thereof is illegal from the (Jose vs. Alfuerto, November 26, 2012; Suarez vs. Emboy, March
beginning since he acquired possession by force, intimidation, 12, 2014).
threat, strategy or stealth [FITSS]
2. Unlawful detainer – an action for recovery of possession from Forcible entry vs. unlawful detainer
the defendant whose possession of the property was lawful - In forcible entry, there must be an allegation of prior possession
from the beginning, but became illegal when he continued his of the plaintiff; in unlawful detainer, the allegation should how the
possession despite the termination of his right thereunder possession of the defendant becomes illegal.
(Sarmieta vs. Manalite Homeowners Association, 632 SCRA 538, - In forcible entry, demand to vacate is not needed; in unlawful
546). detainer, demand to vacate is a prerequisite.
- In forcible entry, the one-year period to file action should be
Section 1, Rule 70 gives the two causes of action counted from the date of actual entry; while in unlawful detainer
- a person deprived of the possession of any land or building by the one-year period to file action must be counted from the date
force, intimidation, threat, strategy, or stealth – forcible entry of the last demand to vacate.
- lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after Please take note:
the expiration or termination of the right to hold possession, by - When the entry is by stealth, the one-year period to file action
virtue of any contract, express or implied – unlawful detainer should reckoned from the discovery of entry (Nunez vs. SLTEAS
Phoenix Solutions, Inc., 618 SCRA 134, 142).
What should be alleged in forcible entry? - When possession is by tolerance, it becomes illegal upon demand
1. allegation that plaintiff had prior physical possession. to vacate by the owner and the possessor by tolerance refuses to
2. That defendant deprived plaintiff of his possession by means comply with such demand (Piedad vs. Gurieza, June 18, 2014).
of force, intimidation, threat, strategy or stealth (FITSS). - The rule on tolerance does not apply in a case where there was
3. There must be showing that the complaint is filed within 1 yr forcible entry at the start (Munoz vs. CA, 214 SCRA 216, 224).
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Amilhamja, Adj.
Hence, in this case, unlawful detainer is not the proper remedy shall be governed by the summary procedure hereunder provided
(Jose vs. Alfuerto, November 26, 2012). (Sec. 3, Rule 70).
Nature of interdictal cases Section 4. Pleadings allowed. — The only

- It is both real and in personam pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim pleaded
Unlawful detainer in lease contract cases in the answer, and the answers thereto. All
- Unless otherwise stipulated, such action by the lessor shall be pleadings shall be verified. (3a, RSP)
commenced only after demand to pay or comply with the Pleadings allowed
conditions of the lease and to vacate is made upon the lessee, -The only pleadings allowed to be filed are the complaint,
or by serving written notice of such demand upon the person compulsory counterclaim and cross-claim pleaded in the answer,
found on the premises, or by posting such notice on the and the answers thereto. All pleadings shall be verified (Sec. 4,
premises if no person be found thereon, and the lessee fails to Rule 70).
comply therewith after fifteen (15) days in the case of land or
five (5) days in the case of buildings (Sec. 2, Rule 70). Can the court motu propio dismiss the complaint?
- YES
Demand is to “pay unpaid rental or to vacate”. Will this make - The court may, from an examination of the
out a case of unlawful detainer? allegations in the complaint and such evidence as may be
- No. It should be demand to pay and vacate. attached thereto, dismiss the case outright on any of the grounds
- A demand in the alternative to pay the increased rental or for the dismissal of a civil action which are apparent therein. If no
otherwise vacate the land is not a demand that will give rise to ground for dismissal is found, it shall forthwith issue summons
an unlawful detainer case (Penas vs. CA, (Sec. 5, Rule 5)
233 SCRA 744, 747).
Section 5. Action on complaint. — The court may,
Section 2. Lessor to proceed against lessee only from an examination of the allegations in the
after demand. — Unless otherwise stipulated, complaint and such evidence as may be attached
such action by the lesser shall be commenced thereto, dismiss the case outright on any of the
only after demand to pay or comply with the grounds for the dismissal of a civil action which
conditions of the lease and to vacate is made are apparent therein. If no ground for dismissal is
upon the lessee, or by serving written notice of found, it shall forthwith issue summons. (n)
such demand upon the person found on the
premises if no person be found thereon, and Section 6. Answers. — Within ten (10) days from
the lessee fails to comply therewith after service of summons, the defendant shall file his
fifteen (15) days in the case of land or five (5) answer to the complaint and serve a copy thereof
days in the case of buildings. (2a) on the plaintiff. Affirmative and negative defenses
What is the form of demand? not pleaded therein shall be deemed waived,
- Written notice of such demand upon the person found on the except lack of jurisdiction over the subject matter.
premises, or by posting such notice on the premises if no Cross-claims and compulsory counterclaims not
person be found thereon (Sec. 2, Rule 70). asserted in the answer shall be considered barred.
- How about verbal demand? The answer to counterclaims or cross-claims shall
- Yes (Jakihaca vs.Aquino, 181 SCRA 67) be served and filed within ten (10) days from
service of the answer in which they are pleaded.
When is right to commence action in lease contract? (5 RSP)
- When the lessee fails to comply therewith after fifteen (15)
days in the case of land or five (5) days in the case of buildings. Answer to Complaint
- Within ten (10) days from service of summons, the defendant
“Tacita reconduccion” shall file his answer to the complaint and serve a copy thereof on
- at the end of the lease contract, the lessee should continue the plaintiff. Affirmative and negative defenses not pleaded
enjoying the property leased for 15 days with the consent of therein shall be deemed waived, except lack of jurisdiction over
the lessor, and no notice to the contrary has been given, it is the subject matter.
understood that there is an implied new lease contract (1670, - Cross-claims and compulsory counterclaims not asserted in the
CC). answer shall be considered barred. The answer to counterclaims
Section 3. Summary procedure. — Except in or cross-claims shall be served and filed within ten (10) days from
cases covered by the agricultural tenancy laws service of the answer in which they are pleaded (Sec. 6, Rule 70).
or when the law otherwise expressly provides,
all actions for forcible entry and unlawful Section 7. Effect of failure to answer. — Should the
detainer, irrespective of the amount of defendant fail to answer the complaint within the
damages or unpaid rentals sought to be period above provided, the court, motu proprio or
recovered, shall be governed by the summary on motion of the plaintiff, shall render judgment
procedure hereunder provided. (n) as may be warranted by the facts alleged in the
What procedure should govern ejectment cases? complaint and limited to what is prayed for
-Except in cases covered by the agricultural tenancy laws or therein. The court may in its discretion reduce the
when the law otherwise expressly provides, all actions for amount of damages and attorney's fees claimed
forcible entry and unlawful detainer, irrespective of the for being excessive or otherwise unconscionable,
amount of damages or unpaid rentals sought to be recovered, without prejudice to the applicability of section 3
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Amilhamja, Adj.
(c), Rule 9 if there are two or more defendants. Section 9. Record of preliminary conference. —
(6, RSP) Within five (5) days after the termination of the
Is there default in ejectment cases? preliminary conference, the court shall issue an
- NO. order stating the matters taken up therein,
-Should the defendant fail to answer the including but not limited to:
complaint within the period above provided, the court, motu 1. Whether the parties have arrived at an
proprio or on motion of the plaintiff, shall render judgment as amicable settlement, and if so, the terms thereof;
may be warranted by the facts alleged in the complaint and 2. The stipulations or admissions entered into by
limited to what is prayed for therein (Sec. 7, Rule 70). the parties;
3. Whether, on the basis of the pleadings and the
What should the court do in case tenancy relationship is stipulations and admission made by the parties,
alleged in the answer? judgment may be rendered without the need of
- Where tenancy is raised as a defense, the court must conduct further proceedings, in which event the judgment
a hearing on the matter to determine the veracity of the shall be rendered within thirty (30) days from
allegations of tenancy (Onquit vs. Binamira-Parcia, 297 SCRA issuance of the order;
354). 4. A clear specification of material facts which
remain converted; and
5. Such other matters intended to expedite the
disposition of the case. (8, RSP)
Section 10. Submission of affidavits and position

papers. — Within ten (10) days from receipt of the
order mentioned in the next preceding section,
the parties shall submit the affidavits of their
witnesses and other evidence on the factual issues
defined in the order, together with their position
papers setting forth the law and the facts relied
upon by them. (9, RSP)
Section 11. Period for rendition of judgment. —

Within thirty (30) days after receipt of the
affidavits and position papers, or the expiration of
Immediate execution the period for filing the same, the court shall
-If judgment is rendered against the defendant, execution shall render judgment.
issue immediately upon motion. However, should the court find it necessary to
clarify certain material facts, during the said
period, issue an order specifying the matters to be
Section 8. Preliminary conference; appearance clarified, and require the parties to submit
of parties. — Not later than thirty (30) days affidavits or other evidence on the said matters
after the last answer is filed, a preliminary within ten (10) days from receipt of said order.
conference shall be held. The provisions of Rule Judgment shall be rendered within fifteen (15)
18 on pre-trial shall be applicable to the days after the receipt of the last affidavit or the
preliminary conference unless inconsistent expiration of the period for filing the same.
with the provisions of this Rule. The court shall not resort to the foregoing
The failure of the plaintiff to appear in the procedure just to gain time for the rendition of the
preliminary conference shall be cause for the judgment. (n)
dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be Section 12. Referral for conciliation. — Cases
entitled to judgment on his counterclaim in requiring referral for conciliation, where there is
accordance with the next preceding section. All no showing of compliance with such requirement,
cross-claims shall be dismissed. (7, RSP) shall be dismissed without prejudice, and may be
If a sole defendant shall fail to appear, the revived only after that requirement shall have
plaintiff shall likewise be entitled to judgment been complied with. (18a, RSP)
in accordance with the next preceding section.
This procedure shall not apply where one of Section 13. Prohibited pleadings and motions. —
two or more defendants sued under a common The following petitions, motions, or pleadings
cause of action defense shall appear at the shall not be allowed:
preliminary conference. 1. Motion to dismiss the complaint except on the
No postponement of the preliminary ground of lack of jurisdiction over the subject
conference shall be granted except for highly matter, or failure to comply with section 12;
meritorious grounds and without prejudice to 2. Motion for a bill of particulars;
such sanctions as the court in the exercise of 3. Motion for new trial, or for reconsideration of a
sound discretion may impose on the movant. judgment, or for reopening of trial;
(n) 4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
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affidavits or any other paper; judgment shall not bar an action between the
6. Memoranda; same parties respecting title to the land or
7. Petition for certiorari, mandamus, or building.
prohibition against any interlocutory order The judgment or final order shall be appealable to
issued by the court; the appropriate Regional Trial Court which shall
8. Motion to declare the defendant in default; decide the same on the basis of the entire record
9. Dilatory motions for postponement; of the proceedings had in the court of origin and
10. Reply; such memoranda and/or briefs as may be
11. Third-party complaints; submitted by the parties or required by the
12. Interventions. (19a, RSP) Regional Trial Court. (7a)
Section 14. Affidavits. — The affidavits required Section 19. Immediate execution of judgment;
to be submitted under this Rule shall state only how to stay same. — If judgment is rendered
facts of direct personal knowledge of the against the defendant, execution shall issue
affiants which are admissible in evidence, and immediately upon motion unless an appeal has
shall show their competence to testify to the been perfected and the defendant to stay
matters stated therein. execution files a sufficient supersedeas bond,
A violation of this requirement may subject the approved by the Municipal Trial Court and
party or the counsel who submits the same to executed in favor of the plaintiff to pay the rents,
disciplinary action, and shall be cause to damages, and costs accruing down to the time of
expunge the inadmissible affidavit or portion the judgment appealed from, and unless, during
thereof from the record. (20, RSP) the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time
Section 15. Preliminary injunction. — The court to time under the contract, if any, as determined
may grant preliminary injunction, in by the judgment of the Municipal Trial Court. In
accordance with the provisions of Rule 58 the absence of a contract, he shall deposit with
hereof, to prevent the defendant from the Regional Trial Court the reasonable value of
committing further acts of dispossession the use and occupation of the premises for the
against the plaintiff. preceding month or period at the rate determined
A possessor deprived of his possession through by the judgment of the lower court on or before
forcible from the filing of the complaint, the tenth day of each succeeding month or period.
present a motion in the action for forcible entry The supersedeas bond shall be transmitted by the
or unlawful detainer for the issuance of a writ Municipal Trial Court, with the papers, to the clerk
of preliminary mandatory injunction to restore of the Regional Trial Court to which the action is
him in his possession. The court shall decide the appealed.
motion within thirty (30) days from the filing All amounts so paid to the appellate court shall be
thereof. (3a) deposited with said court or authorized
government depositary bank, and shall be held
Section 16. Resolving defense of ownership. — there until the final disposition of the appeal,
When the defendant raises the defense of unless the court, by agreement of the interested
ownership in his pleadings and the question of parties, or in the absence of reasonable grounds
possession cannot be resolved without of opposition to a motion to withdraw, or for
deciding the issue of ownership, the issue of justifiable reasons, shall decree otherwise. Should
ownership shall be resolved only to determine the defendant fail to make the payments above
the issue of possession. (4a) prescribed from time to time during the pendency
of the appeal, the appellate court, upon motion of
Section 17. Judgment. — If after trial court finds the plaintiff, and upon proof of such failure, shall
that the allegations of the complaint are true, it order the execution of the judgment appealed
shall render judgment in favor of the plaintiff from with respect to the restoration of
for the restitution of the premises, the sum possession, but such execution shall not be a bar
justly due as arrears of rent or as reasonable to the appeal taking its course until the final
compensation for the use and occupation of disposition thereof on the merits.
the premises, attorney's fees and costs. If a After the case is decided by the Regional Trial
counterclaim is established, the court shall Court, any money paid to the court by the
render judgment for the sum found in arrears defendant for purposes of the stay of execution
from either party and award costs as justice shall be disposed of in accordance with the
requires. (6a) provisions of the judgment of the Regional Trial
Court. In any case wherein it appears that the
Section 18. Judgment conclusive only on defendant has been deprived of the lawful
possession; not conclusive in actions involving possession of land or building pending the appeal
title or ownership. — The judgment rendered in by virtue of the execution of the judgment of the
an action for forcible entry or detainer shall be Municipal Trial Court, damages for such
conclusive with respect to the possession only deprivation of possession and restoration of
and shall in no wise bind the title or affect the possession and restoration of possession may be
ownership of the land or building. Such allowed the defendant in the judgment of the
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Regional Trial Court disposing of the appeal.

(8a)
How to stay the execution of judgment
-Appeal is perfected and the defendant files a sufficient
supersedeas bond, approved by the Municipal Trial Court and
executed in favor of the plaintiff to pay the rents, damages,
and costs accruing down to the time of the judgment appealed
from. (Sec. 19, Rule 70).

-And during the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to time
under the contract, if any, as determined by the judgment of
the Municipal Trial Court. (Sec. 19, Rule 70).

- In the absence of a contract, he shall deposit with the
Regional Trial Court the reasonable value of the use and
occupation of the premises for the preceding month or period
at the rate determined by the judgment of the lower court on
or before the tenth day of each succeeding month or period
(Sec. 19, Rule 70).
Section 20. Preliminary mandatory injunction

in case of appeal. — Upon motion of the
plaintiff, within ten (10) days from the
perfection of the appeal to the Regional Trial
Court, the latter may issue a writ of preliminary
mandatory injunction to restore the plaintiff in
possession if the court is satisfied that the
defendant's appeal is frivolous or dilatory or
that the appeal of the plaintiff is prima facie
meritorious. (9a)
Section 21. Immediate execution on appeal to

Court of Appeals or Supreme Court. — The
judgment of the Regional Trial Court against
the defendant shall be immediately executory,
without prejudice to a further appeal that may
be taken therefrom. (10a)
Decision of the RTC is executory

- The judgment of the Regional Trial Court against the
defendant shall be immediately executory, without prejudice
to a further appeal that may be taken therefrom (Sec. 21, Rule
70).
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Amilhamja, Adj.
RULE 71 Section 3. Indirect contempt to be punished after

Contempt charge and hearing. — After a charge in writing
has been filed, and an opportunity given to the
Section 1. Direct contempt punished respondent to comment thereon within such
summarily. — A person guilty of misbehavior in period as may be fixed by the court and to be
the presence of or so near a court as to obstruct heard by himself or counsel, a person guilty of any
or interrupt the proceedings before the same, of the following acts may be punished for indirect
including disrespect toward the court, contempt;
offensive personalities toward others, or (a) Misbehavior of an officer of a court in the
refusal to be sworn or to answer as a witness, performance of his official duties or in his official
or to subscribe an affidavit or deposition when transactions;
lawfully required to do so, may be summarily (b) Disobedience of or resistance to a lawful writ,
adjudged in contempt by such court and process, order, or judgment of a court, including
punished by a fine not exceeding two thousand the act of a person who, after being dispossessed
pesos or imprisonment not exceeding ten (10) or ejected from any real property by the judgment
days, or both, if it be a Regional Trial Court or a or process of any court of competent jurisdiction,
court of equivalent or higher rank, or by a fine enters or attempts or induces another to enter
not exceeding two hundred pesos or into or upon such real property, for the purpose of
imprisonment not exceeding one (1) day, or executing acts of ownership or possession, or in
both, if it be a lower court. (1a) any manner disturbs the possession given to the
person adjudged to be entitled thereto;
Rule 71 Contempt (c) Any abuse of or any unlawful interference with
- Direct contempt the processes or proceedings of a court not
- A person guilty of misbehavior in the presence of or constituting direct contempt under section 1 of
so near a court as to obstruct or interrupt the proceedings this Rule;
before the same, including disrespect toward the court, (d) Any improper conduct tending, directly or
offensive personalities toward others, or refusal to be sworn or indirectly, to impede, obstruct, or degrade the
to answer as a witness, or to subscribe an affidavit or administration of justice;
deposition when lawfully required to do so, may be summarily (e) Assuming to be an attorney or an officer of a
adjudged in contempt by such court (Sec. I, Rule 71) court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
Penalty for direct contempt (g) The rescue, or attempted rescue, of a person or
-a fine not exceeding two thousand pesos or imprisonment not property in the custody of an officer by virtue of
exceeding ten (10) days, or both, if it be a Regional Trial Court an order or process of a court held by him.
or a court of equivalent or higher rank, or But nothing in this section shall be so construed as
- by a fine not exceeding two hundred pesos or imprisonment to prevent the court from issuing process to bring
not exceeding one (1) day, or both, if it be a lower court (Sec. 1, the respondent into court, or from holding him in
Rule 71). custody pending such proceedings. (3a)
Section 2. Remedy therefrom. — The person Acts constituting indirect contempt

adjudged in direct contempt by any court may - Misbehavior of an officer of a court in the performance of his
not appeal therefrom, but may avail himself of official duties or in his official transactions;
the remedies of certiorari or prohibition. The - Disobedience of or resistance to a lawful writ, process, order, or
execution of the judgment shall be suspended judgment of a court;
pending resolution of such petition, provided - Any abuse of or any unlawful interference with the processes or
such person files a bond fixed by the court proceedings of a court not constituting direct contempt under
which rendered the judgment and conditioned Section 1 of this Rule;
that he will abide by and perform the judgment - Any improper conduct tending, directly or indirectly, to impede,
should the petition be decided against him. (2a) obstruct, or degrade the administration of justice;
- Assuming to be an attorney or an officer of a court, and acting as
Remedy of the person adjudged of direct contempt such without authority;
- The person adjudged in direct contempt by any court - Failure to obey a subpoena duly served;
may not appeal therefrom, but may avail himself of the - The rescue, or attempted rescue, of a person or
remedies of certiorari or prohibition. The execution of the property in the custody of an officer by virtue of an order or
judgment shall be suspended pending resolution of such process of a court held by him (Sec. 3, Rule 71).
petition, provided such person files a bond fixed by the court
which rendered the judgment and conditioned that he will Section 4. How proceedings commenced. —
abide by and perform the judgment should the petition be Proceedings for indirect contempt may be
decided against him.(Sec. 2, Rule 71). initiated motu propio by the court against which
the contempt was committed by an order or any
other formal charge requiring the respondent to
show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt
shall be commenced by a verified petition with
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Amilhamja, Adj.
supporting particulars and certified true copies one (1) month, or both. If the contempt consists in
of documents or papers involved therein, and the violation of a writ of injunction, temporary
upon full compliance with the requirements for restraining order or status quo order, he may also
filing initiatory pleadings for civil actions in the be ordered to make complete restitution to the
court concerned. If the contempt charges arose party injured by such violation of the property
out of or are related to a principal action involved or such amount as may be alleged and
pending in the court, the petition for contempt proved.
shall allege that fact but said petition shall be The writ of execution, as in ordinary civil actions,
docketed, heard and decided separately, unless shall issue for the enforcement of a judgment
the court in its discretion orders the imposing a fine unless the court otherwise
consolidation of the contempt charge and the provides. (6a)
principal action for joint hearing and decision.
(n) Section 8. Imprisonment until order obeyed. —
How is indirect contempt commenced? When the contempt consists in the refusal or
- By order of the court, or a formal charge by the offended omission to do an act which is yet in the power of
court. This is in the nature of a show cause order. the respondent to perform, he may be imprisoned
- By verified petition with full requirements of initiatory by order of the court concerned until he performs
pleading for civil action. It is treated as a separate case to be it. (7a)
docketed separately (Sec. 4, Rule 71).
Section 9. Proceeding when party released on bail
Section 5. Where charge to be filed. — Where fails to answer. — When a respondent released on
the charge for indirect contempt has been bail fails to appear on the day fixed for the
committed against a Regional Trial Court or a hearing, the court may issue another order of
court of equivalent or higher rank, or against an arrest or may order the bond for his appearance
officer appointed by it, the charge may be filed to be forfeited and confiscated, or both; and, if the
with such court. Where such contempt has bond be proceeded against, the measure of
been committed against a lower court, the damages shall be the extent of the loss or injury
charge may be filed with the Regional Trial sustained by the aggrieved party by reason of the
Court of the place in which the lower court is misconduct for which the contempt charge was
sitting; but the proceedings may also be prosecuted, with the costs of the proceedings, and
instituted in such lower court subject to appeal such recovery shall be for the benefit of the party
to the Regional Trial Court of such place in the injured. If there is no aggrieved party, the bond
same manner as provided in section 11 of this shall be liable and disposed of as in criminal cases.
Rule. (4a; Bar Matter No. 803, 21 July 1998) (8a)
Where should the charge be filed?
- Where the charge for indirect contempt has been committed Section 10. Court may release respondent. — The
against a Regional Trial Court or a court of equivalent or higher court which issued the order imprisoning a person
rank, or against an officer appointed by it, the charge may be for contempt may discharge him from
filed with such court; imprisonment when it appears that public interest
- Where such contempt has been committed against a lower will not be prejudiced by his release. (9a)
court, the charge may be filed with the Regional Trial Court of
the place in which the lower court is sitting. Section 11. Review of judgment or final order;
- proceedings may also be instituted in such lower court subject bond for stay. — The judgment or final order of a
to appeal to the Regional Trial Court of such place in the same court in a case of indirect contempt may be
manner as provided in Section 2 of this Rule (Sec. 5, Rule 71). appealed to the proper court as in criminal cases.
Section 6. Hearing; release on bail. — If the But execution of the judgment or final order shall
hearing is not ordered to be had forthwith, the not be suspended until a bond is filed by the
respondent may be released from custody person adjudged in contempt, in an amount fixed
upon filing a bond, in an amount fixed by the by the court from which the appeal is taken,
court, for his appearance at the hearing of the conditioned that if the appeal be decided against
charge. On the day set therefor, the court shall him he will abide by and perform the judgment or
proceed to investigate the charge and consider final order. (10a)
such comment, testimony or defense as the
respondent may make or offer. (5a) Section 12. Contempt against quasi-judicial
entities. — Unless otherwise provided by law, this
Section 7. Punishment for indirect contempt. — Rule shall apply to contempt committed against
If the respondent is adjudged guilty of indirect persons, entities, bodies or agencies exercising
contempt committed against a Regional Trial quasi-judicial functions, or shall have suppletory
Court or a court of equivalent or higher rank, he effect to such rules as they may have adopted
may be punished by a fine not exceeding thirty pursuant to authority granted to them by law to
thousand pesos or imprisonment not exceeding punish for contempt. The Regional Trial Court of
six (6) months, or both. If he is adjudged guilty the place wherein the contempt has been
of contempt committed against a lower court, committed shall have jurisdiction over such
he may be punished by a fine not exceeding five charges as may be filed therefor. (n)
thousand pesos or imprisonment not exceeding
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Civil Procedure With The 2019 Amendments

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What are the major divisions of law discussed?

What are the major divisions of law discussed?

What are the sources of remedial law?

What are the sources of remedial law?

REVIEWER IN CIVIL

By: Adjceline L. Amilhamja

Disclaimer: Errors/mistakes are solely due to the

1. Major divisions in law: ◦ Integrated bar

Rule-making powers of the Supreme Court Q: What is a court?

Constitution. SUPREME COURT

So, judicial power is not exercised only by one court, but by

There is a division of labor and this division is done thru

2.) Judge Note:

Jurisdiction and Concurrent or Coordinate

Note that in certiorari petition, the action of the superior court is

READ: Exception to the rule that jurisdiction is determined by the

It is the power to bind the “thing”. JURISDICTION OVER THE ISSUES

c.) Cases raising novel questions of law; 2) CSC (RA 7902);

service of an appointive employee, by CSC.

defined shall be deemed to be the territorial area

CA. Commissioner of Customs and/or to the CTA as provided for in the

Q: Suppose the unpaid rentals already amount to almost half a

Q: Now, what is this delegated jurisdiction all about?

The value of the lot shall be ascertained by the affidavit of the

C.) SPECIAL JURISDICTION OF MTC

Sec. 35. Special jurisdiction in certain cases.

This is what we call special jurisdiction. It only applies to two (2)

Remember that habeas corpus is not within the jurisdiction of the

What are the special civil actions? CLASSIFICATION AS TO CAUSE OR FOUNDATION:

thus, is deemed to be a real action. In personam action

Action in Rem 7) An action for specific performance is an action in personam

2) When an illegitimate child files a case against the father,

DE GUZMAN vs SANDIGANBAYAN - 256 SCRA 171

In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s

That’s why the SC said in another case:

SANTOS vs. CA – 198 SCRA 806

BAR QUESTION: When may lapses in the literal observance in the

ORDINARY CIVIL ACTIONS

Illustration Q: Define right of action.

Splitting a cause of action and joinder of causes of action of action

There is misjoinder when two (2) or more causes of action were

EXAMPLE: A case joining an accion publiciana case and a forcible

Example: If an action for forcible entry is joined in one complaint

Under Section 6, if there is misjoinder, you do not dismiss the

“ENTITIES AUTHORIZED BY LAW”

Sec. 7. Compulsory joinder of indispensable *Effect of failure to implead indispensable party

against somebody to recover property which they believe was owned

VI. ALTERNATIVE DEFENDANTS defendant.

Although the law is silent, if there is such a thing as “alternative Requisites:

Meaning, until it becomes final and executory. opportunity to be heard.

Q: But of course, if the judgment is favorable to you (the plaintiff),

Such authority shall include an exemption

Any adverse party may contest the grant of

In criminal cases, the court assigns a counsel de officio. Under the

In civil cases, a plaintiff need not pay docket fee if he is an indigent

Sec. 22. Notice to the Solicitor General. In any

EXAMPLE: M files a case against K for declaration of nullity on the

Means of waiving venue: Forcible entry and detainer actions shall be