SPECIAL PROCEDURES IN THE SHARI’AH

COURTS SECTIONS 4 AND 5

Presented by:

ATTY. NURWAHID N. LAKIM, RN

SAMSUDIN M. KITAB
Section 4. Answer. -- The defendant shall file an answer within ten (l0) days from
receipt of the summons either personally or by counsel, or with the assistance of
the clerk of court.
Answer, defined. An answer is a pleading in which a defending party sets forth his
defenses (Sec. 4, Rule 6, Rules of Court) which may be negative and/or affirmative
defenses.
 Kinds of defenses:
(a) Negative defense - is the specific denial of the material fact or facts alleged in
the pleading of the claimant essential to his cause or causes of action (Sec. 5,
Ibid.).

(b) Affirmative defense - is an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him. The affirmative defenses include
fraud, statute of limitations, release, payment, illegality, statute of frauds,
estoppel, former recovery, discharge in bankruptcy, and any other matter by
way of confession and avoidance (Ibid.).
 Kinds of denial:

a. Absolute denial - is a specific denial of a material allegation of fact and setting

forth the substance of the matters relied upon to support the denial.

b. Qualified denial - is a denial of only a part of the averment and admitting the
remainder.

c. Plain denial - is a denial where the pleader states that he has no knowledge or
information sufficient to form a belief as to the truth of a material averment.
 How to allege specific denial?

A defendant must specify each material allegation of fact the truth of which he does
not admit and, whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant desires to deny only
a part of an averment, he shall specify so much of it as is true and material and
shall deny only the remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material averment made in
the complaint he shall so state, and this shall have the effect of a denial (Sec. 10,
Ibid.).
 Period to file and serve answer
The defendant's answer shall be filed with the court and served upon the plaintiff
within ten (l0) days from receipt of the summons (Sec. 4, Special Rules). A motion
for extension of time to file answer is not allowed (Sec. l3, Ibid.).
 Answer, by whom prepared.

The defendant's answer may be prepared by the defendant personally or by his

counsel, or with the assistance of the clerk of court (Sec. 4, Ibid.). However, where
the plaintiff's complaint has been prepared by the clerk of court, it is believed that
the latter should inhibit himself from assisting the defendant in preparing the
answer.
 Counter-claim and cross-claim in the
answer.
A compulsory counterclaim or a cross-claim that a defending party has at the time
he files his answer shall be contained in the answer (Sec. 8, Rule 11, Rules of
Court). When a counterclaim or a cross-claim either matured or was acquired by
the defending party after serving his answer, he may, with the permission of the
court, present the same as a counterclaim or cross-claim by supplemental pleading
before judgment (see Sec. 9, Ibid.). When he fails to set up a counterclaim or
cross-claim through oversight, inadvertence, or excusable neglect, or when justice
requires, he may, by leave of court, set up the counterclaim or cross-claim by
amendment before judgment (Sec. 10, Ibid.).
 Counter-claim, defined

A counterclaim is any claim which a defending party may have against an opposing
party (Sec. 6, Rule 6, Ibid.).
 Cross-claim, defined.
A cross-claim is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of
a counterclaim therein. Such cross-claim may include a claim that a party against
whom it is asserted is, or may be liable to the cross-claimant for all or part of a
claim asserted in the action against the cross-claimant (Sec. 8, Ibid.).
 Kinds of counterclaim.
Counterclaims are classified and distinguished as follows:

a. Compulsory counterclaim - is one which arises out of and is necessarily

connected with the transaction or occurrence that is the subject matter of the
opposing party's claim (United Coconut Planter's Bank vs. IAC, G.R. 72664-65,
March 20, l990). This also known as "recoupment" (Lopez vs. Gloria, 40 Phil
26).

b. Permissive counter-claim - is one which does not arise out of, nor is it
necessarily connected with the subject matter of the opposing party's claim
(Int'l Container Terminal Services, Inc. vs. CA, 214 SCRA 456, 463 [1992]).
This is also known as "set off" (Lopez v. Gloria, 40 Phil. 26).
 Counterclaim, bringing new parties
The general rule that, 'a defendant cannot by counterclaim bring into the action any
claim against persons other than the plaintiff' admits of an exception under Sec. l2,
Rule 6 of the Rules of Court which provides that "when the presence of parties
other than those to the original action is required for the granting of complete relief
in the determination of a counterclaim or cross-claim, the court shall order them to
be brought in as defendants, if jurisdiction over them can be obtained (Sapugay vs.
CA, G.R. 86792, Mar. 21, 1990).
 Cross-claim is compulsory.
A cross-claim is always compulsory as it must arise out of the transaction or
occurrence that is the subject matter of either of the original action or of a
counterclaim therein. When the cross-claim is not connected with such transaction
or occurrence, it can not be raised in the pleading. Hence, the cross-claim must
perforce be raised in the answer; otherwise it shall be barred.
 Answer to the counter-claim or cross-
claim.
When a pleading raises a counterclaim or cross-claim, it must be answered within
ten (l0) days from the service of the pleading raising the counterclaim or cross-
claim (Sec. 4, Rule 11, Rules of Court). But a counterclaim or crossclaim need not
be answered if it is based on and inseparable from the very defense raised by the
opposing party as it will merely result in said opposing party pleading the same
facts already raised in his former pleading (I Regalado, (1988 ed.), p. 92 citing
Navarro vs. Bello, 54 O.G. 6488).
 Reply to the answer.
When the defendant raises an affirmative defense or defenses, the plaintiff need
not file a reply because it is disallowed by Section 13 of the Special Rules and all
the new matters alleged in the answer constituting the affirmative defenses are
deemed controverted (Sec. 11, Rule 11, Rules of Court)
 Reply, defined.
A reply is a pleading, the office or function of which is to deny, or allege facts in
denial or avoidance of new matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters (Sec. 9, Rule 6, Ibid.).
 Allegations not specifically denied
deemed admitted.

Material averment in the complaint, other than those as to the amount of

unliquidated damages, shall be deemed admitted when not specifically denied.
Allegations of usury to recover usurious interest are deemed admitted if not denied
under oath (Sec. 11, Rule 8, Ibid.)
 Defenses and objections not pleaded
deemed waived.
Defenses and objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations, the court shall
dismiss the claim (Sec. 1, Rule 9, Ibid.). Whenever it appears that the court has no
jurisdiction over the subject matter, it shall dismiss the action (Al-Awadhi vs. Astih,
G.R. 8l969, Sept. 26, l988). In the Shari'a courts, considering that a motion to
dismiss is disallowed, defenses and objections which constitute grounds for a
motion to dismiss should be pleaded as affirmative defenses (Sec. 5, Rule l6,
Ibid.), or else they are deemed waived (Sec. 2, Rule 9, Ibid.).
 Filing, defined
Filing is the act of presenting the pleading or other paper to the clerk of court (Sec.
2, Rule 13, Ibid.)
 Service, defined.
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is ordered
by the court. Where one counsel appears for several parties, he shall only be
entitled to one copy of any paper served upon him by the opposite side (Ibid.).
 Manner of filing answer.

The filing of the answer with the court shall be made by filing it personally with the
clerk of the court or by sending it by registered mail. In the first case, the clerk shall
endorse on the pleading the date and hour of filing. In the second case, the date of
the mailing of the answer, as shown by the post office stamp on the envelope or
the registry receipt, shall be considered as the date of its filing in court. The
envelope shall be attached to the record of the case (Sec. 1, Rule 13, Ibid.). A copy
of the answer should be served upon the adverse party before the answer is filed
with the court. Parenthetically, the rules on filing and service of the answer apply to
all other pleadings, appearances, motions, notices, orders, judgments, and other
papers (Ibid.).
 Papers required to be filed and
served.
Every judgment, resolution, order, pleading subsequent to the complaint, written
motion, notice, appearance, demand, offer or judgment or similar papers shall be
filed with the court, and served upon the parties affected (Sec. 4, Ibid.). Notably,
the complaint and other initiatory pleadings need not be served by the pleader to
the adverse party unless the Rules specifically require.
 Modes of service.

Service of pleadings, motions, notices, orders, judgments and other papers shall
be made either personally or by mail (Sec. 3, Ibid.). Service of pleading may also
be effected by substituted service (Sec. 6, Ibid.).
a. Personal service. - Service of the papers may be made by delivering personally a copy to the
party or his attorney, or by leaving it in his office with his clerk or with a person having charge
thereof. If no person is found in his office, or his office is not known, then by leaving the copy,
between the hours of eight in the morning and six in the evening, at the party's or attorney's
residence, if known, with a person of sufficient discretion to receive the same (Sec. 4, Ibid.).
b. Service by mail.-If service is not made personally, service by registered mail shall be required if
registry service exists in the locality; otherwise, service may be made by depositing the copy in
the post office, in a sealed envelope, plainly addressed to the party or his attorney at his office,
if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions
to the postmaster to return the mail to the sender after ten (10) days if undelivered (Sec. 5,
Ibid.)
c. Substituted service. - If service cannot be made either personally or by mail, the office and
place of residence of the party or his attorney being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery (Sec. 6, Ibid.)
 Priorities in modes of service
Whenever practicable, the service and filing of pleadings and other papers shall be
done personally. Except with respect to papers emanating from the court, a resort
to other modes of service must be accompanied by a written explanation why the
service or filing was not done personally. A violation of this Rule may be a cause to
consider the paper as not filed (Sec. 11, Ibid.)
 Completeness of service
Personal service is complete upon delivery. Service by ordinary mail is complete
upon the expiration of five (5) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual receipt by the
addressee; but if he fails to claim his mail from the post office within five (5) days
from the date of first notice of the postmaster, service shall take effect at the
expiration of such time (Sec. 8, Ibid.).
 Proof of service
Proof of personal service shall consist of a written admission of the party served, or
the affidavit of the party serving, containing a full statement of the date, place and
manner of service. If the service is by ordinary mail, proof thereof shall consist of
an affidavit of the person mailing of facts showing compliance with Section 5 of
Rule 13 of the Rules of Court of the Philippines. If service is made by registered
mail, proof shall be made by such affidavit and the receipt issued by the mailing
office. The registry return card shall be filed immediately upon receipt thereof by
the sender, or in lieu thereof the letter unclaimed together with the certified or
sworn copy of the notice given by the postmaster to the addressee (Sec. 10, Ibid.)
Section 5. Failure to Answer. - Should the defendant fail to
answer the complaint within ten (l0) days from service, the
court shall proceed to receive the evidence ex parte upon
which judgment shall be rendered.
 Ex parte judgment in Islamic law.
Islamic adjective law requires that, whenever a party appears before a qadi (judge)
praying for judgment, he ought summon the defendant (Azad, Ghulam, Judicial
System in Islam, p.71). If despite summons, the defendant does not appear, the
qadi shall record the evidence produced by the plaintiff and after appreciation of
the evidence pass an ex parte judgment (Azad, Ibid., p. 75 citing Husam al-Din, K.
Sharh Adab al-Qadi, II, 303-342)
 Declaration of default is disallowed.
In the regular courts, the defendant who did not file an answer may, on motion of the
plaintiff with notice to the defendant, be declared in default upon proof of such failure to
answer. Such declaration deprives the defendant of his right to take part in the trial though
he shall be entitled to notice of subsequent proceedings (Sec. 3, Rule 9, Rules of Court).
In the Shari'a courts, when the defendant fails to file and serve an answer within the
reglementary period, he can not be declared in default either motu proprio, or on motion of
the plaintiff. The Special Rules disallow the filing of a motion to declare defendant in
default. In addition, in the Shari'a courts, the defendant does not lose his personality in the
action for failure to file an answer. He may, at any time, appear before judgment to protect
his rights. This is one feature of Islamic procedure that keeps open the door for the
defendant to participate in the proceedings before judgment is rendered against him
(Rasul, J., Commentaries on Special Rules of Procedure in Shari'a Courts, CLBPI, (l984),
Quezon City, p. 50). As such, consistent with the procedural rule in the regular courts, the
non-answering defendant shall be entitled to notice of subsequent proceedings.
 Manner of reception of evidence.
A problem arises regarding the manner of receiving ex parte the plaintiff's
testimonial evidence. Are the witnesses required to appear personally in court to
testify? Or may their testimony be reduced in affidavit form and submitted to the
Court? It is believed that the manner of receiving such evidence rests with the
sound discretion of the court. But as a matter of precaution, if such evidence is
received in the form of affidavit, the witnesses should be required to affirm
personally their statements in open court.
 Remedies of a non-answering
defendant
The remedies of a non-answering defendant are:

(1) Motion for leave to file answer. - Before the rendition of judgment, he may ask
the court by motion to file an answer to the complaint attaching in said motion
the answer he intends to file; or

(2) Motion for new trial. - he may, if judgment has already been rendered but
before it becomes final and executory, file a motion for new trial under Rule 37
of the Rules of Court (Leyte vs. Cusi, Jr., 152 SCRA 496, 498 [1987]) attaching
therein the affidavits of merits (see PCIB vs. Ortiz, 150 SCRA 380, 390 [1987]);
Yap vs. Tañada, G.R. 32917, July 18, 1988); or
(3) Appeal. - he may, if judgment has already been rendered but before it becomes
final and executory, appeal from such judgment as contrary to the evidence or to
the law (Sec. 9, Special Rules); or

(4) Petition for relief. - he may, if he fails to avail himself of the remedy of appeal
and the judgment has become final and executory, file a petition for relief in the
court that rendered the judgment (Sec. 1, Rule 38, Rules of Court; LCC Corp. vs.
Faroles, 128 SCRA 650 [1984]; Flora vs. Pajarillaga, 95 SCRA 100 [1980]); or

(5) Petition for annulment of judgment. - if he fails to avail of the petition for relief,
he may file in the appropriate court, if warranted, a petition for annulment of
judgment on the ground of lack of jurisdiction (see Art. 1144, par. 3, Civil Code;
Calimlim vs. Ramirez, 118 SCRA 399 [1982]) or extrinsic fraud (Sec. 2, Rule 47;
Sumaoang vs. Judge, RTC, Br. XXXI, Guimba, Nueva Ecija, 215 SCRA 136, 143
[1992]; Montinola vs. Gonzales, 178 SCRA 677 [1989])
WA BILLAHI TAWFIQ WAL HIDAYA

SHUKRAN!