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[ IKEBUKURO NOTES ]

2015 CONSOLIDATED NOTES: CIVIL PROCEDURE

duty to dismiss the claim and can do so motu proprio (citing


Rule 9, Section 1, p. 62-63).
Q: Is it the duty of the court that dismissed the complaint
on the ground of lack of jurisdiction to forward it to the
proper court?
Dean Riano: No. No such duty is dictated by the Rules of
Court.

This tome attempts to consolidate the hundred lecture notes by


Dean Jara, the books of Dean Riano and Dean Regalado, and
the Survey of Supreme Court decisions and addendums by
Dean Albano.
The intellectual property over the content of this compilation
belongs to them. All errors in the transcription, however, are
mine to bear. Unless stated otherwise, any passage without an
express citation refers to Dean Jara.
Due credit and appreciation are granted to the people who
transcribed the wonderful MAS POGI and POGI notes; the
2004, 2014, 2015 San Beda BarOps; the San Beda Law
Journal; and all people who helped in one way or another.

Please indulge the compiler if you find grammar, spelling, and


formatting mistakes.

JURISDICTION OF THE SUPREME COURT


BP 129 does not mention anything about the SC. It begins
with the CA downwards, up to the MTC and the Sharia
Courts. Supreme Court exercises its authority from the
Constitution. In the Constitution, the SC exercises original
jurisdiction and appellate jurisdiction. But the Constitution
does not say that original jurisdiction of the SC is exclusive,
nor about the appellate jurisdiction being exclusive. The basis
for this is in the old Judiciary Act of 1948 where SC
jurisdiction is delineated in a very thorough manner, providing
exclusive original and appellate jurisdiction of the SC. Note
that BP 129 did not repeal the old Judiciary Act and hence it is
still in force. What BP 129 repealed are provisions of
Judiciary Act of 1948 that are inconsistent with BP 129. The
best argument to support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129, paragraph 3, last sentence:
3. Exclusive appellate jurisdiction over all
final judgments, resolutions, orders or
awards of Regional Trial Courts and quasijudicial agencies, instrumentalities, boards
or commission, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission and the Civil Service
Commission, Except those falling within the
appellate jurisdiction of the Supreme Court
in accordance with the Constitution, the
Labor Code of the Philippines under
Presidential Decree No. 442, as amended,
the provisions of this Act, and of
subparagraph (1) of the third paragraph and
subparagraph 4 of the fourth paragraph of
Section 17 of the Judiciary Act of 1948.

This is version three, Sandara Park.


This work has not been polished, edited, or proofread. Read at
your own risk!

JURISDICTION: GENERAL NOTES


Jurisdiction is the power and authority of a court to hear, try,
and decide a case, and execute its judgment.
Premise: Jurisdiction is a matter of substantive law.
This is not necessarily true.
Substantive law deals with jurisdiction over the subject matter
and/or jurisdiction over the nature of the action. This is the
aspect of jurisdiction governed by BP 129 and the other
substantive laws on jurisdiction.
Dean Riano: Since jurisdiction over the subject matter is a
matter of substantive law, it cannot be granted by agreement
of the parties; acquired, waived, enlarged, or diminished by
any act or omission of the parties; or conferred by the
acquiescence of the courts.
Jurisdiction over the person of the litigants, jurisdiction over
the property involved, and jurisdiction over the issues of the
case, on one hand, are governed by the Rules of Court.
The test of jurisdiction is whether the court has the power to
enter into the inquiry and not whether the decision is right or
wrong. The fact that the decision is erroneous does not divest
the court that rendered it of the jurisdiction conferred by law
to try the case.
When it appears that the court has no jurisdiction over the
subject matter of a complaint filed before it, the court has the

The Constitution provides for a limited number of cases over


which the SC can exercise original jurisdiction and limited
number of cases over which it can exercise appellate
jurisdiction. Unlike the old Judiciary Act, the Constitution did
not state that the jurisdiction of the Supreme Court is
exclusive.
SC: EXCLUSIVE ORIGINAL JURISDICTION
Petitions for certiorari, prohibition and mandamus against the
CA, COMELEC, CoA, Sandiganbayan, and Court of Tax
Appeals.
SC: CONCURRENT ORIGINAL JURISDICTION
1.

With the RTC:


Cases affecting ambassadors, other public ministers
and consuls

2.

With the CA:


a. Petitions for certiorari, prohibition or
mandamus against the RTC, Civil Service

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b.
3.

4.

Commission, CBAA, NLRC, and other


quasi-judicial agencies
Petitions for Writ of Kalikasan

With the RTC and CA:


a. Petition for habeas corpus
b. Petition for quo warranto
c. Petitions for certiorari, prohibition or
mandamus against MTC and other bodies
With the RTC, CA and Sandiganbayan:
a. Petition for Writ of Amparo
b. Petition for Writ of Habeas Data

SC: APPELLATE JURISDICTION


1. By way of certiorari under Rule 45 against the CA,
Sandiganbayan, RTC (pure questions of law only),
CTA en banc, and
2. Cases on the constitutionality and validity of a law or
treaty, international agreement or executive
agreement, presidential decree, proclamation order,
instruction, ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty, jurisdiction of a
lower court.
Certiorari, Prohibition and Mandamus have been greatly
limited by certain procedural rules. The limitation is known as
the hierarchy of courts. Thus, while theoretically a petition can
be filed directly to the SC, one should follow the procedure
under the principle of hierarchy of courts. In Rule 65, it is
expressly provided that petitions for Certiorari, Prohibition
and Mandamus (and even Quo Warranto and Habeas Corpus Dean Jara) should be filed directly only with two courts, the
RTC or the CA.
It should be further noted that although the Supreme Court, the
CA, and the RTC have concurrent jurisdiction on petitions for
certiorari, prohibition, mandamus, habeas corpus, and quo
warranto, the RTC may only enforce these writs in any part
of their respective regions. The CA, on one hand, was once
limited to issue these writs only in aid of its appellate
jurisdiction, but BP 129 repealed this rule, stating now the
phrase, whether or not in aid of its appellate jurisdiction.
As contrast, the Sandiganbayan also has jurisdiction to hear
petitions for certiorari, prohibition, and mandamus, but may
only issue these writs only in aid of its appellate jurisdiction.
Q: Jurisdiction of courts must be expressly conferred by
law. Has the CTA certiorari powers even though there is
no express grant of such power?
Dean Albano: Yes. In order for any appellate court to
effectively exercise its appellate jurisdiction, it must have the
authority to issue, among others, a writ of certiorari. In
transferring exclusive jurisdiction over appealed tax cases to
the CTA, it can be reasonably be assumed that the law
intended to transfer also such power as is deemed necessary, if
not indispensable, in aid of such appellate jurisdiction.
Furthermore, under Section 6, Rule 135, when by law,
jurisdiction is conferred on a court or a judicial officer, all
auxiliary writs, processes, and other means necessary to carry
it into effect may be employed by such court or officer (citing
City of Manila v. Grecia-Cuerdo).
Q: There is an apparent conflict between the Family Court
Law, BP 129, and the Constitution. Under the Family
Courts Act of 1997, the Family Court shall have exclusive
original jurisdiction, among others, over petitions for
guardianship, custody of children, habeas corpus in

relation to the latter. The Constitution dictates that the


Supreme Court has jurisdiction over habeas corpus cases,
and BP 129, though enacted on an earlier date than the
Family Court Act, states that the RTC and CA shall also
have jurisdiction over habeas corpus cases. How do you
resolve this apparent conflict?
Under Thornton vs. Thornton, G.R. No. 154598, decided
August 16, 2004, the Supreme Court held that RA 8369 (the
Family Court Act) did not divest the Court of Appeals and the
Supreme Court of their jurisdiction over habeas corpus cases
involving the custody of minors because:
1. It could not have been the intention of the lawmakers
to limit the writ to Family Courts which are limited
only to respective territories,
2. the primordial consideration is the welfare and best
interests of the child,
3. that a literal interpretation of the word exclusive
will result in grave injustice,
4. that implied repeals are not favored, and
5. that A.M. 03-03-04-SC, or the Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to
Custody of Minors, state that the Supreme Court and
Court of Appeals shall have concurrent jurisdiction
over said writs.
Among the basic principles of the enactment of BP 129 was to
do away with the concept of concurrent jurisdiction. BP 129
has not been able to do away entirely with concurrent
jurisdiction. BP 129 does not use the term concurrent in
vesting jurisdiction upon courts. Generally, BP 129 has been
able to do away with the concept of concurrence of
jurisdiction, except with respect to certiorari, prohibition,
mandamus, quo warranto and habeas corpus. Since the
Constitution and BP 129 allocate original jurisdiction upon 3
courts, then it is safe to conclude that these 3 courts exercise
original and concurrent jurisdiction over these petitions.

JURISDICTION OF THE COURT OF APPEALS


CA: EXCLUSIVE ORIGINAL JURISDICTION
Cases of annulment of judgment of an RTC.
CA: EXCLUSIVE APPELLATE JURISDICTION
1. Ordinary appeal from RTC and Family Courts
2. Petition for review from RTC in exercise of its
appellate jurisdiction
3. Petition for review from decisions, resolutions, orders
or awards from CSC, Ombudsman in administrative
cases and other quasi-judicial agencies in exercise of
its quasi-judicial functions as mentioned in Sec. 1
Rule 43.
CA: CONCURRENT ORIGINAL JURISDICTION
1. With the SC:
a. Petitions for certiorari, prohibition or
mandamus against the RTC, Civil Service
Commission, CBAA, NLRC, and other
quasi-judicial agencies
b. Petitions for Writ of Kalikasan
2.

With the RTC and SC:


a. Petition for habeas corpus
b. Petition for Quo warranto
c. Petitions for certiorari, prohibition or
mandamus against the MTC and other
bodies

3.

With the SC, RTC and Sandiganbayan:


a. Petition for Writ of Amparo
b. Petition for Writ of Habeas Data

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Q: Is the SC a court of general jurisdiction?


A: The SC, despite being the highest court of the land, is not a
court of general jurisdiction, it exercises only limited original
jurisdiction as provided for under the Constitution. It is
generally not a trier of facts. The same is true in the CA. In
Sec. 9 BP 129, the CAs authority is very limited.

It does not mean that the decisions of the CA are immune


from annulment. The SC could still exercise its equity
jurisdiction, most likely under Rule 65, in order to annul a
judgment of the CA, based on the same grounds given under
Rule 47, extrinsic fraud and lack of jurisdiction.

JURISDICTION OF THE REGIONAL TRIAL COURT


Under BP 129, the Court of Appeals may authorize itself to
conduct new trials and receive evidence in proper cases. The
Constitution, and even the Rules of Court, is silent whether or
not the same power may be done by the Supreme Court.
Q: CA has exclusive original jurisdiction over Annulment
of Judgment of an RTC under Rule 47. Does it mean that
the CA can annul a judgment rendered by an MTC?
A: Since the CA is a court of limited jurisdiction, it is allowed
to annul judgment only judgments from the RTC. It cannot
annul decisions of an MTC.
Q: Would it mean that the judgment of an MTC is
immune from annulment of its judgment by the CA?
Yes. The decision of an RTC can be annulled by the CA. But
the decision of an MTC is immune from annulment by the
CA. But, the decision of an MTC can be annulled by an RTC.
It is not so provided in BP 129 that an RTC can annul a
judgment of an MTC, but it is provided for under Section 10
of Rule 47 on Annulment of Judgment in the Rules. Thus,
jurisdiction is vested in the RTC under the Rules for it to be
able to annul judgments rendered by an MTC.
Q: Can we then challenge the jurisdiction of RTC as BP
129, a special law, should take precedence over a
substantive law, as BP 129 does not expressly give the RTC
the authority to annul judgment of an MTC? Why?
A: We cannot. This is because, under BP 129 there is an
allocation to the RTC of jurisdiction to entertain and decide all
kinds of actions which are not especially given to other courts.
This is the provision why an RTC can annul judgments of the
MTC as well as the reason why the RTC is considered as the
real court of general jurisdiction in our justice system. Since
no substantive law has allocated to other courts the jurisdiction
to annul judgments of an MTC, it follows now that the RTC is
the proper court to decide on the matter as provided under BP
129 for an RTC to entertain and decide all kinds of actions not
especially given to other courts.
See: Islamic Da'wah Case
Q: Can RTC entertain and decide on cases of annulment
of judgments of another RTC prior to BP 129? Why?
Before BP 129, SC held yes, because the RTC is a court of
general jurisdiction. This is the reason why in BP 129,
Congress deemed it necessary to incorporate a provision
giving exclusive authority to the CA to annul a judgment
rendered by the RTC to do away with the anomalous situation
where an RTC is able to annul judgments rendered by another
RTC, as there was no specific substantive law prior to BP 129
which allocated to other courts the authority to annul
judgments of the RTC.
Q: Can the SC annul the judgment of the CA?
Technically, no, it may not. The Constitution and BP 129 does
not provide authority for the SC to annul judgments rendered
by the CA. There is no substantive law or special law
authorizing SC to annul judgments rendered by the CA.

There are three factors that determine whether or not the


Regional Trial Court has jurisdiction over a given civil case:
1. Whether or not action is capable of pecuniary
estimation;
2. Whether or not the action is a real action; and
3. If the amount is known, whether the amount is
within the ambit of the jurisdictional amount.
RTC: INCAPABLE OF PECUNIARY ESTIMATION
Not all actions incapable of pecuniary estimation are
cognizable by RTC.
For example, the following actions, though incapable of
pecuniary estimation, are not exclusively cognizable by the
RTC:
1. Annulment of judgment rendered by RTC not
capable of pecuniary estimation, cognizable only by
the CA.
2. Annulment of arbitral award by barangay court acting
as arbitral body cognizable by MTC, as provided
by the LGC, although incapable of pecuniary
estimation.
3. Certiorari, prohibition and mandamus not
exclusively cognizable by RTC, although incapable
of pecuniary estimation.
Dean Albano: Settled jurisprudence considers some civil
actions as incapable of pecuniary estimation, viz:
1. Actions for specific performance (Personal Note:
except if it is a prayer for specific performance to
convey real property, in which case, it is not always
subject to RTC);
2. Actions for support which will require determination
of the civil status;
3. The right to support of the plaintiff;
4. Those for the annulment of decisions of lower courts;
5. Those for the rescission or reformation of contracts
(Personal Note: Again, if rescission is not the primary
purpose of the contract but reconveyance is, it not
always subject to RTC); and
6. Interpretation of a contractual stipulation.
RTC: JURISDICTION IN REAL ACTIONS
Q: Is it possible a real action is at the same time one
incapable of pecuniary estimation?
A: Yes. A good example of a real action that is incapable of
pecuniary estimation is foreclosure of real estate mortgage. It
is not capable of pecuniary estimation as the determinative
issue here is the right of the mortgagee to foreclose, not the
value of the property.
Q: What do we do in determining jurisdiction of an action
is a real action but is incapable of pecuniary estimation?
What factor will be determinative to determine
jurisdiction of the court?
A: SC held in a line of cases that if the action carries the
feature of real action and one incapable of pecuniary
estimation, then the determinative factor is the feature of
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incapable of pecuniary estimation. Thus, RTC has exclusive


jurisdiction of foreclosure actions, even if the assessed value
of the property involved is less than the jurisdictional amount
of the RTC. As long as the action is foreclosure of mortgage,
the RTC has jurisdiction.
The feature of foreclosure of mortgage as a real action will
only be important in determining the venue, not the
jurisdiction.
A similar action which applies the same principle is
expropriation. Expropriation of a piece of land is one
involving real action, but it does not take into account the
assessed value of the land in determining jurisdiction. Thus, it
is real action, although incapable of pecuniary estimation, as
the right to expropriate is the main issue, not the value of the
land involved.
HOWEVER, and you should take note of this, under the latest
case on the matter, the Supreme Court held in Barrido v.
Norato, G.R. No. 176492, October 20, 2014, that the MTCC
has jurisdiction to take cognizance of real actions or those
affecting title to real property, or for the recovery of
possession, or for the partition or condemnation of, or
foreclosure of a mortgage on real property. Although the
main issue involved in the case is partition, it is unknown if
the same rule may be applied to expropriation and foreclosure
proceedings.
Dean Riano: When it comes to expropriation and partition
proceedings, the rule to follow now is that of real actions, not
those incapable of pecuniary estimation.
Q: Between the plaintiffs allegation in his complaint for
reconveyance of possession of real property that the
property is estimated to be worth P50,000, and an
uncontroverted (common evidence) tax declaration that
states the property has an assessed value of P11,160, which
amount should prevail for the purpose of jurisdiction?
Dean Riano: The uncontroverted tax declaration should
prevail and under BP 129, MTC should have jurisdiction over
the complaint. The estimated value, commonly referred to as
the fair market value, is entirely different from the assessed
value of the property (p. 122).
Q: What if the property has no assessed value? What value
will then be used for purposes of jurisdiction?
There are several properties in the country which have not
been assessed for tax purposes. To determine jurisdiction, you
go to the neighboring lots until you locate a property that has
an assessed value. And that will be the basis in ascertaining
the jurisdiction of the court.
RTC: JURISDICTION IN MONEY CLAIMS
When it comes to personal actions, under BP 129, the
determining factor will be the amount sought to be recovered
if it is a claim for money, or if it is recovery of personal
property, it is the value of the personal property as alleged in
the complaint.
The determining factor for jurisdiction in a pure collection suit
is the principal sought to be recovered, exclusive of charges
interest, attorneys fees, damages, etc (IDALEC). If the
amount sought to be recovered by the plaintiff is 1M, it may
be cognizable by the RTC if the principal amount exceeds the
jurisdictional amount (P200,000 or P400,000 as the case may

be), excluding IDALEC. If the principal is only P200k and the


rest are charges, damages, interest, etc., then the MTC has
jurisdiction over the case. It is therefore wrong to say that a
claim for P1 million is always cognizable by the RTC.
The entire amount, however, inclusive of IDALEC, shall be
used to fix the filing fees.
Q: What if the plaintiff seeks only recovery of damages
inclusive of actual, moral, nominal, among others? For
example, plaintiff sought 100K actual, 500K moral and
500k exemplary damages. How do we determine
jurisdiction here?
If the complaint is purely for damages, the aggregate (total)
amount of damages will determine jurisdiction, not the
specific amounts claimed. Thus, in the example, the RTC has
jurisdiction. Even if the complaint specified the amount of
damages for each aspect, the aggregate amount shall
determine the jurisdiction.
Q: There is a complaint for a sum of money amounting to
P150,000. The case was filed with the MTC. During the
trial, the plaintiff presents evidence that he is entitled to
P700,000. May MTC award the P700,000?
No. The award is more than the jurisdictional amount granted
by law to inferior courts. The court cannot award the entire
P700,000.
Q: What should the plaintiff do in this case?
He may waive the excess, but if he insists he should be
awarded the entire P700,000, the decision of the MTC is null
and void.
Q: What if its in the reverse? What if there is a complaint
for a sum of money worth P700,000 but during trial the
plaintiff was only able to prove he is only entitled to
P150,000? May the RTC award P150,000?
Yes, applying the principle of adherence to jurisdiction.
RTC: RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only
in the case of real properties. Personal property values have no
bearing in jurisdiction. The value as stated in the complaint
shall be determinative (whether the figure is true or not).
Q: Plaintiff sought recovery of the car through replevin,
claiming that it is worth 800k. If the defendant challenges
the value, stating that the car is 30 years old, and willing to
submit evidence to show true value, will the court
entertain the defendants motion?
A: No. The court shall rely only on the allegations in the
complaint. Once the court acquires jurisdiction, it cannot be
ousted; the court proceeds with the case until finally
adjudicated.
Q: What if it is found during trial that the car is actually
worth far less than the value claimed? Will the court
remand the case to the lower court?
A: No. It will continue to hear until final judgment. There will
be adherence of jurisdiction of the court over the case. The
court will continue trying the case until it is finally
adjudicated.
The only way to oust jurisdiction in this regard is if Congress
files a law abandoning the principle of adherence of
jurisdiction over a particular case.
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Q: Is there any exception to the rule that the court will not
look further the allegations in the complaint?
Dean Riano: Yes, in ejectment cases in which the defendant
averred the defense of the existence of a tenancy relationship
between the parties. However, there must first be a reception
of evidence and, if after hearing, tenancy had in fact been
shown to be the real issue, the court should dismiss the case
for lack of jurisdiction (citing Ignacio v. CFI of Bulacan and
Hilado v. Chavez, p. 74-75).
Dean Albano: Although respondent averred tenancy as an
affirmative / special defense in his answer, this did not
automatically divest the MTC of jurisdiction over the
complaint. It continued to have the authority to hear the case
precisely to determine whether it had jurisdiction to dispose of
the ejectment suit on its merits (citing Mendoza v. Geronimo,
November 2010)

JURISDICTION OF MUNICIAL TRIAL COURTS


With respect to MTCs, notwithstanding the expanded
jurisdiction thereof, practically all cases decided by the RTC
pertaining to personal property can also be decided by the
MTC, depending only on the value of the property involved.
MTC is still a court of limited jurisdiction despite the
expanded jurisdiction under BP 129 as amended. It can only
try the cases given to it under substantive law. The provision
in BP 129 making the RTCs courts of general jurisdiction is
not given to MTCs. BP 129 stated explicitly that the RTC
shall have exclusive original jurisdiction over all actions that
are not specially assigned to any other court. This is not
contained in the allocation of jurisdiction of MTCs.
MTC: TOTALITY TEST
The totality test in BP 129 (Sec. 33(1), last proviso) is a
proviso for ascertainment of jurisdiction, more encompassing
than that provided in the Rules.
Q: What is the difference between the totality test in BP
129 and the totality test in the Rules of Court?
Rules of Court The totality test in Rule 2, Section 5(d)
concerns causes of action for money as to the amount. The
totality of the money claims shall be determinative of
jurisdiction of courts.
BP 129 The totality test refers to of all claims or causes of
actions in a complaint, whether they refer to the same or
different parties or arising out of the same or differing
transactions. This is more encompassing in scope.
MTC: DELEGATED JURISDICTION
The MTC, in its delegated jurisdiction, acts as if it were an
RTC.
MTC acts as if it was a cadastral court (usually done by RTC).
If the land registration or cadastral case is contested, the
assessed value of the contested property is determinative of
jurisdiction. If uncontested, MTC acts as a cadastral as if it
were an RTC, there being no limitation as to jurisdiction. But
BP 129 clearly states that if MTC acts as a cadastral court the
MTCs decisions on cadastral cases shall be appealable in the
CA, not to the RTC (hierarchy of courts is not followed).

Q: What is the step-ladder approach?


It states that appeals, as a general rule, have to follow the
order of the courts from the lowest to the highest court. Thus,
appeals from the inferior courts should go to RTC, and the
RTC to the CA, so on.
MTC: SPECIAL / INTERLOCUTORY JURISDICTION
Habeas Corpus proceedings can be heard in the MTC, but only
in situations where petition was filed in the RTC, but no
judges are available in the RTC, so the petition is transferred
to an MTC wherein a judge is available. The MTC gains
jurisdiction as habeas corpus cases are urgent. In fact, habeas
corpus cases are always given special preference by the courts;
and thus, if no RTC judges are available to hear the petition,
the clerk of court in the RTC must transfer the case to the
MTC, issuing in the process a certification that there are no
RTC judges to hear the case, and MTC must hear the petition
promptly. BP 129 does not authorize the filing of the habeas
corpus case directly in the MTC. Petition for habeas corpus
filed in the MTC can be challenged on jurisdictional grounds
because BP 129 does not vest unto an MTC an authority to
entertain a petition for habeas corpus. It is only under
circumstances where there are no RTC judges available to
entertain a petition for habeas corpus when an MTC judge can
now analyze and study the propriety the issuing of the writ of
habeas corpus.

RESIDUAL JURISDICTION
Take note that the trial court still has residual jurisdiction to
act on certain matters even if the case is already on appeal. See
Rules 41 and 42. It is not correct to assume that if a case has
been decided by the trial court, after an appeal is perfected, the
case is now under the jurisdiction of the appellate court. Do
not assume that the case is entirely divested from the
jurisdiction of the trial court, even if there is a perfected
appeal. The trial court continues to exercise jurisdiction over
certain matters for a limited period of time in its residual
jurisdiction. After the expiration of that period, absolute
jurisdiction will now be exercised by the appellate court.

PRIMARY JURISDICTION
In primary jurisdiction, this involves quasi-judicial bodies.
What happens in primary jurisdiction is that Congress enacts a
law which vests jurisdiction unto a quasi-judicial body to try
and decide cases which are cognizable by regular courts under
BP 129. The reason why Congress enacts these laws is that
Congress feels that the quasi-judicial body is better equipped
to decide disputes of litigants in certain cases than the regular
courts.
For example, the HLURB has exclusive original jurisdiction to
adjudicate disputes between subdivision buyer/s and the
subdivision developers. In cases of breach of contract under
the NCC on matters pertaining to the jurisdiction of quasijudicial bodies, the trial court cannot take cognizance of these
matters, although BP 129 gives jurisdiction to regular courts
over such matters, given the fact that there is a substantive law
vesting jurisdiction to the HLURB to decide on such disputes.
This is because it is presumed that the HLURB is better
equipped than a regular court to decide on such cases due to
its expertise.
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Q: What if the subdivision developer filed in the MTC a


complaint for ejectment of a subdivision buyer who
allegedly violated the terms of the contract? The
subdivision developer sought to recover the property from
the buyer, among other prayers. The subdivision buyer
challenged that MTC has no jurisdiction over the case, and
that it is HLURB which is the proper body to take
cognizance of the complaint. Does HLURB have
jurisdiction over the ejectment case?
SC held that the primary jurisdiction of the HLURB does not
extend to complaints of ejectment filed by one party against
the other. In the case of primary jurisdiction vested by
substantive law to quasi-judicial bodies, the authority of the
quasi-judicial body is interpreted strictly. Ejectment could
really be a dispute between developer and buyer, but since the
complaint was for recovery of physical possession of the
property (or even accion publiciana), SC held that regular
courts should take cognizance.

DOCTRINE OF JUDICIAL STABILITY


Dean Riano: Courts of equal and coordinate jurisdiction
cannot interfere with each others orders. The principle also
bars a court from reviewing or interfering with the judgment
of a co-equal court over which it has no appellate jurisdiction
or power of review (p. 34).

RULES OF COURT: GENERAL PROVISIONS


Q: What are the limitations provided in the Constitution
limiting SCs authority in promulgating rules of procedure?
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive
rights
Any rule on procedure violating any one of the limitations
given in the Constitution, the rule can be properly challenged
as to its validity and applicability.
Q: A litigant challenged a rule on criminal procedure,
stating that Rule 115 (Rights of the Accused) is not
procedural. He argues that Rule 115 modifies substantive
rights as espoused in the Constitution, and should be
deleted in the Rules of Court. Decide.
The petition will be denied. SC said that while the authority of
the SC is to promulgate rules on proceedings, practice and
procedure, and substantive rights should not be covered by the
provisions of the Rules, SC said that it is practically
impossible for rules of procedure to be devised without
incorporating certain provisions that are dealing substantive
law. The standard is that we take the Rules as a whole, and
determine whether it is procedural in character. If the
answer is yes, and there are certain provisions speaking about
substantive rights, that should not be a justification of deleting
these provisions in the Rules of Court.
Also, SC noted that the NCC, a substantive law, contains
procedural articles concerning court processes such as those
concerning unlawful detainer and forcible entry, but NCC still
remain a substantive law.
According to the Rules, the Rules of Court should be
interpreted liberally. But the interpretation is one not in favor
of the plaintiff or defendant. The meaning of liberal

interpretation is to promote the ends of justice, to carry out the


duty of the SC under the limitations given under the
Constitution.
Read: Alonso v. Villamor
Q: May the Rules be suspended in the interest of justice?
Qualify. The SC may suspend the Rules in favor of
substantive law or substantive rights. Lower courts may not
suspend, but they have the power and duty to construe and
apply technical rules liberally in favor of law and justice.
Q: Are they any Rules that require strict construction?
Yes. For example, the reglementary period for appeals is more
often than not strictly applied by the Courts. The perfection of
an appeal in the manner and within the period permitted by
law is not only mandatory but also jurisdictional.
Dean Riano: Furthermore, a reading of jurisprudence will
reveal that the rule on liberal construction cannot be
successfully invoked where a party seeking for its application
cannot show a justification for his deviation from the Rules (p.
16).
Dean Albano: Liberal application of procedural rules is
allowed only when two requisites are present:
1. There is a plausible explanation for the noncompliance; and
2. The outright dismissal would defeat the
administration of justice (citing Domingo v. CA and
Tible and Tible Co. v. Royal Savings and Loan
Association)

DOCKET FEES
Q: Are docket fees jurisdictional?
A: Yes. This is known as the Manchester rule, after the ruling
in Manchester Development Corporation v. Court of Appeals.
If you look at Rule 141, that is the rule prescribing docket
fees, you will see that docket fees are not only limited to
complaints but all claim pleadings.
Q: Are docket fees required for compulsory
counterclaims?
A: Although the Rules of Court state that there should be
docket fees for compulsory counterclaims, the Supreme Court
relaxed the rule and stated that compulsory counterclaims do
not require docket fees to be filed.
Q: When are docket fees not required to be paid?
A: If you take a look at the last section of Rule 141, that is,
Section 22 of that rule, you will see that the Government is
exempt from paying docket fees. Also, if you take a look at
A.M. 09-6-8-SC, or the Rules of Procedure for Environmental
Cases, you will see that a Writ of Kalikasan and a Petition for
Continuing Mandamus do not require docket fees.
Dean Albano: The rule on docket fees, and its exception
where the party does not deliberately intend to defraud the
court in payment of docket fees, and manifest its willingness
to abide by the rules by paying additional docket fees when
required by the court may be found in a 2014 case, Gipa v.
Southern Luzon Institute.

RULE 1, SECTION 5
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A civil action is always commenced with the filing of a


complaint. This is the general rule. Some cases are
commenced by a petition, most notably in special civil actions.
The filing of a complaint has given rise to the action that when
the case is filed, the court acquires jurisdiction over the action.
The court will then have to gain jurisdiction over the person of
the defendant. Service of summons will gain jurisdiction over
the defendant.
A recent decision of the SC held that if the person filing the
case is not authorized to file the case, then the court does not
acquire jurisdiction over the person of the plaintiff, and will
not acquire even the jurisdiction to decide the case. The court
can examine whether or not the person who filed the case is
authorized. If not so authorized, the court will not acquire
jurisdiction over the person of the accused and it will not
acquire the authority to decide the case. The court will be
absolutely without jurisdiction to try and decide the case.
In complaints properly filed by the plaintiff, the plaintiff can
amend the complaint as a matter of right under Rule 10,
provided an answer has not yet been filed. If amendment is to
implead a new defendant, the court will accept such amended
complaint as it is a matter of right. As to the new defendant,
the period to file an answer will relate to the filing of the
original complaint (Relating Back Doctrine).
But, if a new cause of action is introduced along with the new
defendant, it is not an amendment, as a new cause of action is
being included.

RULE 1, SECTION 3, correlating with RULE 2,


SECTION 2
Q: Should there always be a violation of a right for cause
of action to accrue?
No. In the definition of a civil action, it is very clear that we
do not necessarily follow the definition of a cause of action as
defined in Rule 2. Under said rule, for a cause of action to
accrue, the plaintiff must allege he has a right, and then allege
the defendant had violated that right.
There are two elements under the definition in Rule 2:
1. Plaintiff must allege he has a right.
2. Plaintiff must allege the defendant has violated that
right.
The implication given by the definition of a cause of action in
Rule 2 is that the right holder must wait for a violation of his
right before he can have a cause of action against such person
who violated his right and have a reason to go to court. That
cause of action should always be correlated to the definition of
a civil action found in Section 3(a) Rule 1.
Under Rule 1, a civil action is one by which a party sues
another for the enforcement or protection of a right, or the
prevention or redress of a wrong.
Civil action does not require prior violation of a right
before right holder can proceed to court. A plaintiff need
not have his right actually violated before a case can be
filed. Even a threat to violate a right gives rise to a cause of
action.
Premise: All civil actions require a cause of action.

This is not correct. Read the Rules. All ordinary civil actions
require a cause of action. There are at least two special civil
actions that do not require a cause of action. The first is a
complaint for interpleader. The second is a petition for
declaratory relief. In interpleader and declaratory relief, there
is no cause of action that is alleged in the complaint.
Q: Should the plaintiff allege that he suffered damages
before he may file an ordinary civil case in court?
No. Cause of action accrues when there is an allegation of a
right and an allegation of a violation of or a threat to violate
that right. There is no need to allege that he suffered damages.

CAUSE OF ACTION AND THE PRINCIPLE OF


CONDITION PRECEDENT
Q: The Rules of Procedure becomes more complicated if
there are several rights that are violated by one and the
same wrongful act. If there is just one wrongful act and
there are several rights violated, how will the causes of
action accrue?
In order to determine whether several causes of actions will
arise, if there is one wrongful act and there are several rights
that are violated, is to determine whether these rights belong to
the same person or to different persons.
Several rights of one person violated by one and the same act:
1 cause of action = 1 complaint.
Several rights of several persons violated by one and the same
act:
Several causes of action = separate
complaints.
Q: If a person drives his car negligently, and causes
damage or wrecks 3 cars, how many causes of action
accrue against him using the standard given by the court?
Using the standard, determine whether the three cars belong to
one person only or the cars belong to three different persons.
If the 3 cars belong to only one person, only one cause of
action will accrue. The owner of the cars can only file one
case against the negligent driver. Otherwise, that will be
splitting of causes of action. The owner had only one right that
was violated by the negligent driver.
If these 3 cars belong to 3 different owners, there are 3
separate causes of action. Because there are 3 causes of action
that arise, they can file separate complaints, and they dont
have to be joined. Conceivably, one owner can file his case in
the RTC if he claims the damages suffered by him amounted
to more than 500k. Another owner can file his case in the
MTC if he claims that his car incurred damages amounting to
200k. The filing of these complaints by 3 different owners will
depend on the amount of damages each will respectively claim
in their respective complaints. The fact that there are 3
different causes of action does not mean that they should go to
the same court in order to recover the damages suffered by
them.
Q: Using the first example where the owner of the 3 cars
can only file one complaint for recovery of damages, can
he properly and rightfully go to court right away?
No. If we rely solely on substantive law alone, it would
seemingly be yes. But if we apply other procedural principles,
the owner may be precluded from filing a complaint right
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away. The owner has to first satisfy certain conditions


precedent before cause of action could accrue. If these
conditions precedent are not satisfied, the filing of the
complaint shall be premature and shall cause the dismissal of
his complaint.
Q: What are some examples of condition precedents?
Conditions precedent given under procedural rules and
substantive law are as follows:
1. Prior barangay conciliation
2. Arbitration clause
3. Certification on non-forum shopping
4. Exhaustion of administrative remedies
5. Earnest efforts towards a compromise
Prior Barangay Conciliation
Even if a right has been violated and a cause of action indeed
accrued, if the action is covered under the circular on prior
barangay conciliation, the trial court can dismiss or not
entertain the case and order the parties to undergo barangay
conciliation first.
Arbitration Clause
Invariably provides that in case of breach of contract, the
parties must first undergo arbitration before a complaint can
be filed by the innocent party.
Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on
Non-Forum Shopping. The effect of a complaint/initiatory
pleading without Certification on Non-Forum Shopping is that
the court acquires jurisdiction over the case, but the court can
order the dismissal of the case for non-observance of
Certification on Non-Forum Shopping as a condition
precedent.

In the NCC, in disputes between members of the same family,


it must be shown that earnest efforts to reconcile or
compromise have been attempted but was unsuccessful. There
are, however, exceptions to the rule.
Q: If prior recourse to compromise in a complaint between
immediate members of a family is not alleged, is it
waivable?
Dean Albano: Yes. It is waivable if not pointed out by the
defendant in a Motion to Dismiss. Since it is not one of the
four non-waivable defenses, the court may not dismiss the
case motu proprio.
Thus, the definition of a cause of action under the Rules is
now qualified by certain conditions precedent before the
injured party can go to court. He must see to it that these
conditions precedent, if applicable, must first be observed. The
risk of not doing so is that the court, although competent and
may have jurisdiction over the case, may refuse to file the case
and issue an order directing the plaintiff to undergo or comply
with these conditions precedent.
If the conditions precedents have been met, the general rule
that we follow is that for every cause of action, the
plaintiff/right holder can file one complaint.
Q: What if the designation of the complaint states it is a
case for unlawful detainer, but the body of the complaint
states that it is for the recovery of P1 million in principal
loan, which court has jurisdiction over the case?
The RTC. The cause of action in a complaint is not what the
designation of the complaint states, but what the allegations in
the body of the complaint define and describe.

SPLITTING A CAUSE OF ACTION


Q: Is there forum shopping if there is a variation of the
causes of action but founded on same facts and evidence?
Dean Albano: Yes. Forum shopping can be committed in three
ways:
1. Filing multiple cases based on the same cause of
action and with the same prayer, the previous not
having been resolved yet (litis pendencia)
2. Filing multiple cases based on the same cause of
action and the same prayer, the previous case having
been finally resolved (res judicata); or
3. Filing multiple cases based on the same cause of
action, but with different prayers (splitting a cause of
action, where the ground for dismissal is also either
litis pendencia or res judicata).
Common in these types of forum shopping is the identity of
the causes of action in the difference cases filed (citing Asia
United Bank v. Goodland Co., Inc.).
Q: Is the absence of a certificate of non-forum shopping
jurisdictional?
Dean Albano: No. While the certification requirement is
obligatory, non-compliance or a defect in the certificate could
be cured by its subsequent correction or submission under
special circumstances or compelling reasons, or on the ground
of substantial compliance (citing Lim v. CA and Mindanao
Station).
Exhaustion of Administrative Remedies
This is in keeping with the doctrine of primary jurisdiction.
Earnest Efforts towards a Compromise

Splitting a cause of action is abhorred by the court.


For example, a creditor filed one civil action for the recovery
of the principal and another action for the interest earned by
the principal. Even if there are two different courts where
these complaints are filed, there is still splitting a cause of
actions.
Q: What are the sanctions for splitting a cause of action?
1. Filing of one could be used to dismiss the other due
to litis pendencia
2. If one of the case has been decided, the other case
can be dismissed due to res judicata
3. Both cases can be dismissed on the ground of forum
shopping.
It is now settled that if the party is guilty of splitting his cause
of action, he is also guilty of forum shopping. There is no need
to elaborate as to whether there is forum shopping as long as it
can be shown that there is splitting causes of action.
Q: Why do the Rules prohibit splitting?
It is because the effect of splitting a cause of action could be
harmful to the integrity of our courts. If splitting is allowed,
and one case each will be filed for example in the RTC and
MTC, there is the possibility that one court will decide
differently from the other and would result in the courts
looking funny, even if the same facts, the same parties and the
same pieces of evidence were presented therein. The rule on
splitting is designed more for protecting the integrity of our
courts. The likelihood that different courts will render
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conflicting decisions involving the same issue, the same


parties and the same pieces of evidence and thus destroy the
credibility of the judicial system is sought to be prevented.
Q: Suppose the plaintiff filed 2 complaints arising from the
same cause of action, but the defendant ignores this.
Defendant did not act on the fact. Can the court motu
propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable
offenses under Rule 9. Even if the defendant did not waive
these, the court motu propio can order dismissal of these cases
once these becomes clear during trial. But if the ground for
dismissal is litis pendencia, only one of the cases will be
dismissed. If the ground for dismissal is res judicata, all cases
filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all
cases, only one can be dismissed.
(Tip: If you are counsel for the defendant, if cases are filed in
2 different courts [RTC and MTC], move for the dismissal of
the case in the RTC as the amount involved in the MTC is
smaller. Hence, if the amount involved in total should have
been 2.2M, and the amount involved in the MTC is only 200k,
only 200k will be extent of liability that your client will have
in case of judgment against him.)
Q: Can we have the defendant have the remedy of
dismissal of both cases filed in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty
of forum shopping, the court shall order the dismissal of ALL
cases. But the qualification is that the dismissal is without
prejudice, not an adjudication on the merits. Exception to the
dismissal being without prejudice is when the forum shopping
was DELIBERATE, then dismissal is with prejudice.
Q: Between forum shopping and the defense of litis
pendencia, which should you use as lawyer of your client?
Dean Albano: It depends. Although taken in its face forum
shopping seems to be more beneficial since it will result to the
dismissal of all the cases, unless there is deliberate forum
shopping on the part of the other party, there may be some
instances when it is beneficial for the client to only allege litis
pendencia.
Collection of Payments Payable on Installments
The rule of thumb is that for each installment that becomes
due and unpaid, one cause of action arises for that particular
installment.
If the installment becomes due and unpaid, the creditor has
one cause of action against the debtor for recovery of money.
But his cause of action against the debtor is only for the
recovery of the installment that was overdue.
Q: Can the creditor insist on recovery of the entire amount
instead of installments?
General rule, no. Each installment must be due so that right of
recovery can be had.
Exception: The contract has an acceleration clause. It is a
clause in contracts payable in installments where parties
stipulate that in case of default in the payment of a certain
number of installments (or even just one), the entire obligation
becomes due.

So if there was an acceleration clause in the contract wherein


the whole obligation becomes due after default of the first
installment, the creditor will have one cause of action only to
recover the entire amount. Suppose the creditor indeed filed
one case only, and later a judgment was decided in his favor
and that has become final, and later the second installment has
become due, he cannot file another case for the recovery of the
second installment by virtue of the acceleration clause. Only
one cause of action shall arise.
But without an acceleration clause, the rule of thumb is that
each installment that is unpaid shall give rise to a different
cause of action when they become due and unpaid. There will
be as many cases as there are installments filed by the creditor
against the same debtor, but each case corresponding to a
different installment.
Read: Larena v. Villanueva
Q: What if all installments are due? For example, plaintiff
did not file a case for the first installment, second
installment until all the installments became due. How
many causes of action will there be?
If all installments are due by the time the complaint is filed,
the plaintiff must seek for the recovery of all the installments
because by then he only has one cause of action. The cause of
action at that time has become complete and total.
Rule on Anticipatory Breach
Even if the obligations are not yet due according to the
contract, but the debtor has expressed formally his desire not
to pay, then that is an anticipatory breach of contract from
which creditor can file a case against the debtor to collect the
entire obligation. This anticipatory breach should be formally
pleaded in the complaint.
The basis for this may be found in Civil Law. The period for
payment is presumed to be for the benefit of both debtor and
creditor. The debtor cannot compel the creditor to receive his
tender of payment before the maturity date, and the creditor
cannot compel the debtor to pay also before such date. When
the debtor expresses his desire not to pay at all, as in Blossom
v. Manila Gas, the debtor loses the benefit of the period and
the creditor may thus compel him to pay even before the
arrival of the maturity date.
Read: Blossom vs. Manila Gas
Q: If such anticipatory breach was not pleaded in the
complaint filed, and defendant failed to file an answer, the
court will set the case for pre-trial. By the time the pretrial was conducted, the first installment had become due.
The trial was scheduled, but by that time, the whole
obligation became due and unpaid. Can the court properly
decide the case in favor of the plaintiff?
No.
If a plaintiff files a complaint in court although he has no
cause of action at all, and the claim of the plaintiff matures at
the time the case is tried, the court still does not have any
authority to decide the case. This is because at the time of the
filing of the complaint, the plaintiff did not have a cause of
action. This is known as the Swagman Rule, after Swagman
Hotel v. Court of Appeals.
Q: Can we not apply Rule 10, Section 5, or amendment to
conform to evidence?

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SC held that we cannot apply amendment to conform to


evidence, if in the first place the plaintiff does not have a
cause of action at the time of the filing of the complaint. It is
essential under the Swagman Rule that a complaint should be
filed after the cause of action has accrued. If there is no cause
of action that has accrued and a complaint is filed, the court
will have no authority to decide the case, even if that
obligation matures and becomes defaulted during the trial of
the case. We apply Rule 10 only if there is a cause of action at
the time of the filing of the complaint.
Read: Swagman Hotel v. Court of Appeals

Under the rules, can a court, motu propio, order the


severance of one of the misjoined causes of action?
Yes. The court can do so. Under the Rules, there is no need for
a motion from the defendant if the court finds out that causes
of action are misjoined. It can motu propio order the severance
of cases. This is done for the benefit of the court, because if
the court will wait for the defendant to make a motion, to raise
the misjoinder of causes, the court will find himself confused
with the procedure he will follow. This is because partition
will involve a different procedure from ordinary civil actions.
In fact, under our Rules now, partition is a multi-stage
proceedings. Rescission is an ordinary civil action.

JOINDER OF CAUSES OF ACTIONS


Splitting is prohibited but joinder of causes of action is
encouraged by the Rules.

The court went ahead and tried the case, until a decision was
finally issued by the court. Only then did the defendant raised,
on appeal to the SC, the misjoinder of causes of action.

The Rules encourages a plaintiff to incorporate as many


causes of action he may have against the same defendant,
although his causes of action are totally unrelated to one
another. This is allowed so long as the parties remain the
same.

If nobody objected, the court may proceed in the disposition of


the case. The Supreme Court held in Ada v. Baylon, if the
court decided on the case despite the misjoinder of causes of
action, the decision will still be valid. SC made a qualification
that these misjoined causes should be within the jurisdiction of
the trial court under BP 129.

A plaintiff can file a complaint against a defendant for accion


reinvindicatoria, for recovery of money arising from the loan,
recovery of damages arising from a quasi-delict committed by
the defendant, although these actions are in reality different
transactions. There is nothing wrong if the plaintiff sets up
three different causes of action in a complaint that arose of
different transactions

In other words, under the Ada v. Baylon ruling, this rule on


misjoined causes could be a ground for severance of these
causes. But it if it is not raised timely, and the court did not
severe the cases and decided on it instead, the courts decision
is valid as long as the trial court has jurisdiction over the
misjoined causes.

There are three limitations to joinder of causes of action under


the Rules of Court, respectively (a), (b), and (c) of Rule 2,
Section 5.

MISJOINDER
JURISDICTION

DUE

TO

INCOMPATIBLE

If the plaintiff files a complaint against the defendant for


accion reinvindicatoria, and the assessed value of the property
is 1k only, and the second cause of action is the recovery of
money, obviously the actions are misjoined. This is because
accion reinvindicatoria, the property being only 1k, is
cognizable only by the MTC.
Q: In a complaint filed by the plaintiff against the
defendant, the first cause of action was for partition, and
second cause of action was for rescission of a donation.
Both actions are cognizable by the RTC.
If we rely solely on Rule 2, is there misjoinder of actions?
Why?
Yes. This is because a complaint for partition is a special civil
action while rescission is an ordinary civil action. They are
governed by different procedures, and thus there is misjoinder
of causes of action under Rule 2 Sec. 5(b).
Q: On the same facts above, the defendant did not notice
the misjoinder and did nothing, whereas the court did
nothing also. The judge most likely waited for the
defendant to move to split the misjoinder causes. But since
nothing was done by defendant, the judge proceeded to try
the two misjoined cases.

Q: Does the RTC have jurisdiction over a complaint for


partition? Does the RTC have jurisdiction over rescission
of a donation?
Note that a case for partition is one incapable of pecuniary
estimation. So even if there are misjoined causes in one
complaint, but this misjoinder is not raised before the trial
court, the parties are deemed to have waived this issue of
misjoinder of causes of action, the judgment rendered by the
court is valid and the same can be executed if it is duly
entered.
If the court does not motu propio order the severance, the
defendant cannot blame the court for it. It is the burden of the
defendant to raise this as an issue before the trial court.
Read: Ada v. Baylon
Q: Can a complaint be filed where these two causes of
action are set up, first, petition for certiorari, and then, as
a second cause, petition for habeas corpus?
Yes, the petition is allowed, by way of exception, according to
SC.
Read: Galvez v. Court of Appeals, G.R. No. 114046
Q: A complaint was filed in the MTC. The first cause of
action was for accion reinvindicatoria where the assessed
value of the land was 1k. The other cause of action is
unlawful detainer of a condominium unit, with value of
back rentals being 2M. Can an MTC have jurisdiction
over the action?
Yes. The assessed value of the land in the accion
reinvindicatoria is only 1K and therefore cognizable by the
MTC. On the other hand, the unlawful detainer case,
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regardless of the amount of back rentals sought to be


recovered, will also be cognizable by the MTC.

may have. The court cannot force him to do so. But there is a
Q: rule against misjoinder of parties.

Q: Are the causes properly joined?


No. There is still misjoinder, although both causes are
cognizable by an MTC. This is because accion
reinvindicatoria, although cognizable by the MTC, shall be
governed by ordinary proceedings while unlawful detainer
will be governed by summary procedure. We cannot join
causes of action which are governed by different Rules of
Procedure, although they may fall within the jurisdiction of
that same court.

Permissive Joinder of Parties


It envisions a situation where there are two or more plaintiffs,
or two or more defendants, or both, and where there is one or a
series of transactions, with common questions of fact
concerning the same parties.

Note:
Dean Jara, in his lecture this year (2015), states that when the
action involves a case of unlawful detainer and a case for
collection of sum of money worth P1 million excluding
IDALEC, although there is in reality misjoinder since they
pertain to different jurisdictions (MTC and RTC respectively),
if the case is filed in the RTC, under Rule 2, Section 5(b), the
joinder will be held valid.
Q: Is there such thing as non-joinder of causes of action?
No. It is purely voluntary in the part of the plaintiff if he
wishes to join his causes of action. There may misjoinder of
causes of action, misjoinder of parties, and non-joinder of
parties, but there is no non-joinder of causes of action.

Q: The owner of a land discovered that his property has


been occupied forcibly by 11 informal settlers and they
retained physical possession thereof. The informal settlers
had constructed houses therein. The owner wanted to
recover the possession thereof. Should the owner file 11
cases of forcible entry or just one against the 11, or one
complaint wherein there is a joinder of parties?
SC said that the owner has the option of choosing any one of
these remedies. Plaintiff can file 11 separate complaints
impleading only one defendant in each complaint. If plaintiff
chooses to file just one action, in that complaint, he must
allege 11 causes of action. The last recourse will involve
joinder of parties.
The joinder of parties is permissive in this case.
Compulsory Joinder of Indispensible Parties
Even if the court tries a case without impleading an
indispensible party, such non-joinder will render the
proceedings void. The decision is void and will never be
entered, and thus cannot be made final and executory.

VOLUNTARY JOINDER OF PARTIES


Q: What are the limitations in joinder of causes which
involve joinder of parties?
The joinder of parties should arise from transactions arising
out of the same contract or series of contracts. The parties
involved are not necessarily indispensable parties. There are
several causes of action involving plurality of parties.
For example, if a truck driven by A hits two cars respectively
owned by B and C, B and C each have a cause of action
against A. Although they may separately file a complaint
against A, they may also join as plaintiffs and file a single
complaint containing two causes of action against A. The
joinder is not mandatory, only permissive. It should be noted
that the two causes of action arose from a single event, i.e., the
vehicular accident.
On another hand, if a tire dealer sold a set of tires of A, and in
a separate transaction sold another set of tires to B, and both A
and B failed to pay their respective obligations, the tire dealer
may NOT file a single complaint against A and B. The two
contracts, though both contracts of sale, are totally different
from each other. The causes of action did not arise from the
same or series of transaction.

JOINDER OF PARTIES: INDISPENSABLE PARTIES


Unlike joinder of parties, there is a rule against misjoinder of
causes of action, in the same way there is a rule on misjoinder
of parties. There is no rule on non-joinder of causes of action,
while there is non-joinder and misjoinder of parties. The
reason why there is no rule on non-joinder of causes is
because it is permissive, it is always at the option of the
plaintiff. The plaintiff can join as many causes of action as he

Before the 1997 Rules of Civil Procedure, the constant ruling


by the SC has always been that failure to implead
indispensable parties will render the judgment void. The
remedy of the defendant would be to file a Motion to Dismiss
on the ground of failure to state a cause of action. If proven,
the case would be dismissed with prejudice.
With the advent of the 1997 Rules of Civil Procedure, the
procedure became much different. Failure to implead
indispensable parties will not always render the judgment
void. This will be explained later in the lecture.
Take note, however, of two cases decided last 2013
Macawadib v. PNP, G.R. No. 186610, and Republic v. Uy,
G.R. No. 198010. Although these cases involve special
proceedings, particularly Rule 108, I think this applies also to
civil actions. In these cases, the SC held, citing Go v.
Distinction Properties, The absence of an indispensable
party renders all subsequent actions of the court null and
void for want of authority to act, not only as to the absent
parties but even to those present.
Dean Albano: There is now a 2014 case which states that if
indispensable parties are not joined, the judgment is null and
void. The case is Crisologo v. JEWM Agro-Industrial Corp.)
Q: Who are indispensable parties?
A: They are parties in interest without whom no final
determination can be had.
Q: What is the sanction if the complaint is filed without
impleading indispensible party?
It is not per se a ground for dismissal as very clearly stated in
Section 11, Rule 3, but if the defendant uses another ground,
i.e., failure to state a cause of action, then the complaint will
be dismissed.

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As stated before, before the 1997 Rules, if the defendant files


a Motion to Dismiss on the ground that there is failure to state
a cause of action, and such ground was proven in court, the
court will dismiss the case without prejudice.
The 1997 Rules, however, particularly Rule 16, allows the
court to order amendment of the pleadings. Under Section 3,
Rule 16, after the hearing [of the Motion to Dismiss], the court
may dismiss the action or claim, deny the motion, or order the
amendment of the pleading. It should also be noted that under
Section 11, Rule 3, the trial court may order any party to be
dropped or added on its own initiative. A Motion to Dismiss
by the defendant therefore is not required before the court may
order the addition of an indispensable party.
If the order is not complied with, the court, on motion or motu
proprio, may dismiss the case under Section 3, Rule 17. It
should be noted that the dismissal here is with prejudice, an
adjudication on the merits, unless otherwise declared by the
court.
This procedure, applying Section 3, Rule 16 first, then Section
3, Rule 17 second, is in keeping with the rule in Section 11,
Rule 3 that non-joinder of parties is not a ground for dismissal.

Q: If the liability of the debtors is joint and several, i.e.,


solidary, do we consider all of them indispensable or
necessary parties?
A: Under the NCC, if the debtors are solidary liable, the
creditor may sue one, or some, or all of them. Each of the
debtors, therefore, is an indispensable party to the entire share.
If there are remaining debtors not impleaded to the complaint,
they are neither considered necessary or indispensable parties.
Q: What is the duty of the plaintiff if a necessary party is
not impleaded?
The only duty of the plaintiff is to tell the court that he has left
out a necessary party. He is not compelled to include such
party. The court will have to determine if it is essential for the
court to order requiring that necessary party to be impleaded.
Q: If plaintiff ignored the court order to implead the
necessary party, is Rule 17 applicable?
No, Rule 3 should apply, which provides for the sanction if
plaintiff refuses to obey an order to implead necessary party.
The case will continue. But the plaintiff would be deemed to
have waived any right of action against necessary party. If
later on, the plaintiff decides to file a complaint against such
necessary party, the complaint will not prosper, as the
necessary party can claim that the right to file a claim against
him has been paid, waived, abandoned or otherwise
extinguished under Rule 16.

NECESSARY PARTIES
Q: How do we distinguish whether a debtor or creditor is
necessary or indispensable?
The rule to guide us in this fact is the NCC on liability of
debtors.
If there are two parties to the contract of loan, one creditor and
one debtor, if in case there is a violation of the contract, both
the creditor and debtor are of course indispensible parties.
If there are two or more debtors, plaintiff should evaluate
whether debtors liabilities are solidary or joint. In the NCC,
in the absence of any other stipulations/factors, when there are
two debtors of the same indebtedness, the assumption will be
that they are joint creditors. If there are stipulations referring
to the debt as solidary, then they are solidary debtors. The
provisions of the NCC will be the guide in this situation.
Q: If we apply the provisions of the NCC, and the creditor
filed a case to recover the entire debt, and debtor A and B
are joint debtors, do we consider both debtors to be
indispensible parties?
Yes. If the purpose of the creditor is to recover the entire
obligation, then both debtors should be impleaded in the
complaint.
Q: Can the creditor file a case against only debtor A?
Yes, applying the provisions of the NCC, the creditor can go
after A, but recovery can be had only to the extent of the
amount owed by A. In this example, debtor A is an
indispensible party.
Q: How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not
indispensible. The court may require B be impleaded to
complete the determination the subject matter.

REPRESENTATIVE PARTIES
Q: In the enumeration of representatives under Rule 3,
Section 3, why is it that only trustees of an express trust
included? Why not the trustees of an implied trust?
It might be possible, it might be highly likely, that the trustee
in an implied trust is unaware that he is the trustee of the
beneficiary or the trustor. Implied trusts are created by
operation of law.
Q: What is the duty of the plaintiff if the defendant is
represented by another party?
The plaintiff should identify not only the representative but
also the real party-in-interest.
Q: May the court compel the plaintiff to identify the real
party in interest?
Yes. The defendant may move to dismiss the case for failure
to state a cause of action and the court may compel the
plaintiff to amend the complaint. If the plaintiff still does not
comply with the order of the court, the court may dismiss the
case under Rule 17 for failure to comply with an order of the
court. This dismissal is with prejudice.
Q: What is interest in real party in interest?
Dean Albano: Interest within the meaning of the Rules means
material interest or an interest in issue to be affected by the
decree or judgment of the case, as distinguished from mere
curiosity about the question involved. One having no material
interest to protect cannot invoke the jurisdiction of the court as
the plaintiff in an action. When the plaintiff is not the real
party in interest, the case is dismissible on the ground of lack
of cause of action.

UNWILLING CO-PLAINTIFF
Q: Who is an unwilling co-plaintiff?
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An unwilling co-plaintiff is a person who has done no wrong


in so far as the plaintiff is concerned but refuses to file a
complaint even if he and the plaintiff have a common interest
over the claim.
Q: May the court compel a person to file a complaint?
No. Under our system, the filing of a complaint is left entirely
to the discretion of the plaintiff. If a plaintiff does not want to
go to court to protect his rights or to enforce his rights there is
nothing which the State or which the law could do.
Since we cannot compel a right-holder to become a partyplaintiff, the only means available under the Rules to another
right-holder with a common interest is to implead the other
right-holder as defendant. By making the other right-holder as
a defendant he will now come within the jurisdiction of the
court.
Q: Must the unwilling co-plaintiff file an Answer?
No. He is impleaded only for the purpose of bringing him
under the jurisdiction of the court. He need not file an Answer
nor should he be declared in default if he does not do so.
If the unwilling co-plaintiff, however, chooses to answer, he
may do so. Usually, the unwilling co-plaintiff files an answer
to set up a counterclaim against the original plaintiff. There is
no prohibition in the Rules of Court.
Q: Is there such thing as an unwilling co-defendant?
No. It is presumed that all defendants are unwilling.

MINOR AND INCOMPETENT PERSONS


Q: Is there any conflict between the Family Court Act and
a complaint with the RTC or MTC as the case may be
impleading a minor accompanied by a prayer or a motion
for the appointment of a guardian ad litem?
Dean Jara: No. The guardianship that is allocated to a Family
Court is what we call a general guardianship, a guardianship
over the property or person of a minor. But when the guardian
is simply a guardian ad litem, that is an incident or collateral
to the main action itself.

ASSIGNMENT/TRANSFER OF INTEREST
There is a creditor who lent 1M to the debtor. The debtor
defaults in payment. But before the creditor filed a
complaint, the creditor felt the need for money. He
assigned his claim to another for a certain value. Such
person now stands in the shoes of the creditor, and may
file a claim against the debtor. The creditor sold his rights
to X for 700K.
Q: Can the assignor/original creditor, file a claim for 1M
against creditor?
No, he is no longer a real party in interest, as he has assigned
his rights to another.
Q: What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor,
so the case will prosper.
Q: How much may the assignee recover?
He is entitled to recover 1M. The assignee steps into the shoes
of the creditor who sold his right to the assignor for 1M.

Q: What if the original creditor has not assigned his credit


for 1M. He files a case against debtor. While the case was
pending in the RTC, the plaintiff/creditor assigned his
claim to another for 700K. Will the assignee be considered
as indispensable party?
No. Under Rule 3, assignee pendente lite, though may be a
real party in interest, is not considered an indispensable party
and the court may ignore such party.
Q: Using the factual details of the preceding question, may
the debtor pay the assignee 700K, and if he does not
accept, tender it in court, so the case will be dismissed
against him?
Yes. This is allowed under Art. 1634 of the NCC.
Article 1634. When a credit or other incorporeal
right in litigation is sold, the debtor shall have a right
to extinguish it by reimbursing the assignee for the
price the latter paid therefor, the judicial costs
incurred by him, and the interest on the price from
the day on which the same was paid.
A credit or other incorporeal right shall be considered
in litigation from the time the complaint concerning
the same is answered.
The debtor may exercise his right within thirty days
from the date the assignee demands payment from
him.
Q: Will Art. 1634 apply if the credit was assigned before
the complaint is filed?
No. In such case the debtor has to pay the assignee the amount
of the credit in full, not only the amount the assignee paid for
such credit.

SPOUSES AS PARTIES
Q: What is the general rule regarding spouses as parties?
Husband and wife shall sue or be sued jointly.
Q: What are the exceptions?
Section 4, Rule 3, states that the exception is that provided by
law.
SC held that the law contemplated in the exemption is the
Family Code or NCC as the case may be. This is pertinent on
the rule of partnership and co-ownership in case of husband
and wife. It is impertinent to compel a husband to implead the
wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without
impleading the co-owners. The same would be applicable to
husband and wife. The wife may file a case without
impleading her husband.
There is a caveat: If the husband as a co-owner files a
complaint against another, he should indicate in the complaint
that he is filing such case as co-owner. But if he claims sole
ownership, he should implead the wife. The law authorizes
either spouse alone to file a complaint. The spouse left behind
is not considered a necessary party as a complete
determination of the case could be had even with just one
spouse as a party.

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Other exceptions:
1. When the husband and wife are judicially declared
legally separated from each other, the other party
must be impleaded; and
2. If the husband and wife are separated in fact for at
least one year.

CLASS SUIT
Q: When is class suit proper?
There is a common interest among persons so numerous that it
would be impracticable to bring them all to court. It is not
required that all be presented in court, but only enough to
represent the rest of those who are party to the same suit.
For example, Oposa vs. Factoran is now enshrined in the Writ
of Kalikasan through the Citizens Suit on behalf of persons
yet unborn. This is effectively a class suit.
Q: Do we consider the members of the class as
indispensable or necessary parties?
SC held that all members of the class involved in the litigation
are considered indispensable parties.
Q: Should they all be identified?
SC held that there is no need. Only a representative number
can be impleaded as they represent all of the class.
Determination made on such representative class is
tantamount to determination for all of the members of the
class.
Q: Why did SC hold that all such members of the class are
deemed indispensable?
SC pointed to the last sentence of Sec. 12 Rule 3 which states
that Any party in interest shall have the right to intervene to
protect his individual interest. This effectively means that
each member of the class is an indispensable party.
Generally, under Rule 19, intervention is subject to the
discretion of the trial court. As an exception, the court cannot
deny intervention of a member of the class in a class suit.

DECEASED LITIGANT
A contract of agency is present when a lawyer is engaged by
his client, an agency which exists until the client dies. The
lawyer has to inform the court about the death of his client.
The court may then cause substitution of the representatives of
the estate of the deceased.
A distinction should be made if it is the plaintiff or the
defendant who died.
If the plaintiff dies, the court would require the lawyer to
submit the names of the heirs in order to act as substitute
plaintiff.

If there is an appeal on the decision of the trial court, the


executor/administrator shall represent the estate. Their
representative capacity ends upon final entry of judgment.
If it is the defendant who died, and his death did not
extinguish the obligation, there is a transfer of interest from
the debtor to his estate. There will have to be proper
substitution of parties similar to that stated with the deceased
plaintiff above.
Q: What criterion do we use to determine if the action
survives the death of the petitioner?
Dean Albano: If the action affects primarily and principally
property or property rights, then it survives the death of the
plaintiff.
A Petition for Declaration of Nullity of Deed of Sale of Real
Property for instance, is one relating to property and property
rights, and thus survives the death of the petitioner (citing
Bonilla v. Barcena, Torres v. Rodellas, Sumaljag v. Literato)
Q: If there is a decision against debtor that was final and
executory, can the substituted party ask for motion for
writ of execution for satisfaction of the deceaseds claim?
No. It cannot be subject to execution under Rule 39. Creditor
must file a claim with the estate, attaching the said judgment
as evidence of a valid claim, under Rule 86.
Q: If the defendant dies, and the lawyer was not able to
inform the court of his death, and the court continued with
the proceedings not knowing the defendant is dead, is the
judgment of said court valid?
A: Yes, the judgment is valid.
Q: If the lawyer informed the court, or the court,
independent of the lawyers notice was able to discover
that the defendant is truly dead, but the court nevertheless
continued with the proceedings, is the judgment valid?
A: No, the judgment is void.

ALTERNATIVE DEFENDANTS
The situation is simply one where the plaintiff has the right
that has been violated but at the time of filing of the complaint
he is not sure as to who, between two or more persons, has
violated the right and who should be held liable for the
violation.
Q: If there are alternative defendants, are there alternative
causes of action?
Yes. See Rule 2, Section 5. It says in the alternative. If you
take a look at Rule 8, Section 2, it also says two or more
statements of a claim alternatively.
Q: How about alternative defenses?
Yes. See Rule 8, Section 2, it says defense alternatively or
hypothetically.

If all heirs refused to act as substitute parties, the court can


require the defendant to seek the appointment of an
administrator or executor of the estate. This may be done by
settlement of estate under special proceedings.

Q: How about an alternative judgment?


Yes. If you take a look at Rule 60, Section 9, it says shall
render judgment in the alternative.

If the executor or administrator has been chosen, he will be


tasked to represent the estate until final judgment.

Q: How about alternative plaintiffs?


There is nothing in the Rules, but if we take a look in the
Federal Rules of Civil Procedure of the United States from

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which we copied some of the provisions of the Rules of Court,


it is expressly allowed.
Q: Give an example of alternative plaintiffs.
Suppose A and B are disputing who between them owns a
specific car. The car was stolen by X. Who can file a
complaint against X for the recovery of the car? Under the
Federal Rules of Civil Procedure a complaint can be filed
naming A or B as plaintiffs in the alternative against X, the
one who has run away with the car.

UNKNOWN DEFENDANT
This usually happens in a case of replevin, or recovery of
possession of personal property.
Usually personal properties are transferred from one hand to
another, so the problem of the creditor who tries to recover the
property is if he files a complaint for replevin against the
person who bought the personal property from him, there is a
chance that when the sheriff goes to this defendant, the
defendant is no longer in possession of the property, so the
sheriff will not be able to confiscate the property. It is possible
that the first possessor of the property has transferred the
possession in the meantime to another person.
In order to avoid this situation, the plaintiff in a case of
replevin will usually implead at least two defendants: the first
possessor of the property or the second possessor if known to
the plaintiff, and then a third defendant called John Doe. John
Doe here is impleaded as an unknown defendant; whoever is
in possession of the personal property will be the John Doe
who is impleaded in that complaint.
Q: Is there an unknown plaintiff?
No. Since it is the plaintiff himself who institutes the action, it
is the duty of the plaintiff to identify himself to the court.
He who knows others is wise. He who knows himself is
enlightened. Lao Tzu.
Believe in Lao Tzu who believes in you. - Transcriber

INDIGENT PARTY
The general rule on motions is that a motion should not be
heard ex parte. When it comes to an indigent litigant, the rule
expressly allows that a motion presented by a litigant to be
allowed to try the case as an indigent could be submitted to the
court through an ex parte motion.
The motion to declare oneself as an indigent party may be
submitted to the court even before filing a complaint. This is
the only motion that may be filed before filing a complaint.
The fact that a person is salaried, is gainfully employed, does
not mean to say he could not become an indigent party. The
only qualification now is that the litigant can prove that he
cannot support himself and his family, even if he is a salaried
employee.
The declaration by a court that a litigant may be considered as
an indigent litigant is purely interlocutory. It could be assailed
later on in the course of the trial as an adverse party.

VENUE OF ACTIONS
The Supreme Court, under the Constitution, may disregard the
rules on venue. All other courts cannot disregard the rules on
venue. The trial courts, however, can incorporate in their
decision an advisory to the defeated party to appeal the matter
to the SC.
In purely civil actions, venue can be subject to stipulation of
parties.
Elements:
1. It must be in writing,
2. It must be contracted before the case is filed, and
3. It must contain features of exclusivity.
If the stipulation will cause undue inconvenience to parties,
then such stipulation can be dispensed with by parties. Rule 4
is designed for the convenience of complaining parties, not for
the benefit of defendants.
Read: Sweet Lines v. Teves
In a real action, the venue, in absence of any stipulation
designating a specific venue, is the place where the property or
a part thereof is located.
In a mixed action action is both real and personal the
venue in absence of stipulation is the same as that of the rule
in real actions.
Dean Riano: Examples of words with restrictive meanings are:
only, solely, exclusively in th si court, in no other court save -,
particularly, nowhere else but / except -, or words of equal
import (p. 172).
Q: What is the venue if it is a personal action and the
defendant does not reside and is not found in the
Philippines?
We normally cannot file a case against someone who does not
reside and is not found in the Philippines. There are only two
instances where a civil case can be filed against them when
the civil action pertains to the civil status of the plaintiff, or if
it involves a property of the non-resident defendant in the
Philippines. In these instances there is a res from which the
court may have jurisdiction.
Q: What if it is the plaintiff who is a non-resident and
cannot be found in the Philippines?
There is no problem. He voluntarily submits to the jurisdiction
of the court once he filed the complaint.
Q: Will rules on venue apply to the SC or CA?
It is not possible to state a rule of venue that applies to the
Supreme Court or the Court of Appeals because unlike trial
courts which are distributed throughout the country, we only
have one Supreme Court based in Manila and the Court of
Appeals that is likewise based in Manila. So the features of
trial courts in different regions do not apply when it comes to
the SC and the CA.
Q: May the parties agree to a change of venue which has
the feature of exclusivity but which is entered after the
case is filed in court?
Yes. The court, however, cannot be forced to enforce this
agreement. Once a case is filed in court, the court will
continue to have authority to try the case notwithstanding any

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agreement on exclusive venue that the parties will enter into


later on.
Q: What is the remedy if there is improper venue?
The defendant must file a Motion to Dismiss or else it is
waived.
Q: May the court motu proprio dismiss the case?
No. Improper venue is not one of the four non-waivable
defenses that the court may use as ground to dismiss the case
motu proprio.
Dean Riano: This is not necessarily true. Under summary
procedure and small claims proceedings, the court may
dismiss the case motu proprio since it has the authority to
examine the complaint and such evidence that may be attached
thereto and dismiss the case on any of the grounds apparent
therefrom for the dismissal of a civil action (p. 175).
Q: What if a corporation sues another corporation? What
should be the venue?
Dean Albano: Follow the ordinary rules on venue if it is a real
action.
If it is a personal action, specifically with respect to a
domestic corporation, it is in a metaphysical sense a resident
of the place where its principal office is located as stated in the
articles of incorporation (citing Golden Arches Dev. Corp v.
St. Francis Square Holdings, Inc.)
Q: What if the Articles of Incorporation state that the
address of the plaintiff is in Manila, but the principal office
is actually in Mandaluyong? Will a case filed in
Mandaluyong be dismissed by the defendant on the
ground of improper venue?
Dean Albano: No. Respondents choice must be respected as
the controlling factor in determining venue for cases is the
primary objection for which said cases are filed (citing
Saludo v. American Express Inc.)

IN REM, IN PERSONAM ACTIONS


The determination of whether or not an action is real or
personal should not be confused whether or not an action is an
action in rem, in personam, or quasi in rem. Not all real
actions are in rem actions, and not all in rem actions are real
actions.
For example, settlement of estate involving personal
properties of the deceased is a personal action, since the action
does not involve title or possession or interest to real property,
but it is still an action in rem since it is enumerated under
Section 47 (a) of Rule 39.
An example of a real action and in personam action, on
another hand, is an accion reinvidicatoria. Although the court
may adjudge A is the owner of the land as between him and B,
this will not stop X, a third party, to file a complaint against A
for another accion reivindicatoria. X is not bound by the
judgment in the first case between A and B.
An example of a real action and in rem action is a cadastral or
land registration proceeding.

The rule on venue does not apply to CA, CTA and SC. It is
only applicable to trial courts and other lower courts.

PRIOR BARANGAY CONCILIATION


Prior barangay conciliation, as a general rule, is a condition
precedent to the accrual of a cause of action.
2 requisites:
1. The parties must be natural persons, and
2. They reside in the same city or municipality
As long as these two requisites are present, as a general rule,
prior barangay conciliation is a must regardless of the nature
of the action. For example, if there is a claim for collection of
a sum of money, regardless of the amount involved, prior
barangay conciliation is still a must. It should be further noted
that prior barangay conciliation is required not only in filing
cases before the MTC or RTC but also the CA, SC, and other
judicial bodies.
Barangay conciliation applies to civil actions, as well as
special civil actions in appropriate cases.
This does not apply to, among others:
1. Rule 65 cases, nor in petition for relief cases.
2. Cases that involve public officers or LGUs.
3. Certiorari, Prohibition, Mandamus
4. It does not apply to expropriation or quo warranto.
In these cases the Government or public officers are usually
involved and according to the LGC are not covered by
barangay conciliation.
Q: If your client, a creditor of a loan worth P1 million,
wishes to file a complaint in court without undergoing
prior barangay conciliation, as lawyer how do you counsel
your client?
A: I will counsel him to attach with his complaint a petition
for a provisional remedy, such as preliminary attachment.
Under the LGC, these cases are also not covered by barangay
conciliation.
Q: If the case is filed directly in court in violation of the
LGC, will the court still acquire jurisdiction?
Yes, under BP 129.
Q: What are the remedies of the defendant and the court if
prior barangay conciliation was not done?
The defendant can file a motion for dismissal for lack of cause
of action while the court can compel, on motion or motu
proprio, both the plaintiff and defendant to submit to barangay
conciliation while the case is being held in suspension. The
court can hold the case in abeyance until conciliation was had
or had failed.
Q: Are barangay courts part of the judiciary?
Barangay Court is not part of the judiciary, but part of the
executive. Inherently, barangay courts are not allowed to
adjudicate, only to mediate, to conciliate, and convince parties
to arrive into a compromise agreement and settle amicably.
They act as an arbitration court; that is, if parties have
mutually agreed in writing to constitute the barangay court as
an arbitration court for their dispute.

An example, finally, of a personal action and in personam


action is a collection suit for a sum of money.
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The barangay courts follow procedurally the same rules as that


of court cases.

agreement as rescinded and file the original claim with the


proper court.

The pleadings could be verbal, although the barangay court


usually asks for pleadings to be written. In Manila, they also
require payment of minimal docket fees, regardless of the
amount of claim.

Q: Why is it the barangay courts are not allowed to levy


real property if they are already allowed to levy on
execution over personal property?
The lawmakers thought it would be best to reserve levy on
execution over real property for the courts. It should be noted
that under Rule 39, levy on execution over real property
involve legal processes such as redemption. These legal
processes require mastery of the law, and in a situation where
lawyers are not even allowed to participate in the proceedings,
it is best that these legal processes will be allowed only in a
court of law.

The barangay court may issue summons and subpoena.


If the complainant fails to appear repeatedly during the
conferences called by the Barangay Court, the Barangay Court
can order the dismissal of the complaint, and that dismissal is
with prejudice. The complainant loses his right to recover
against the respondent.
If it is the defendant who fails to appear, the barangay court
will just issue the certificate that there is failure to
compromise. The plaintiff may then proceed to court.
The rule on venue in barangay conciliation is different from
Rule 4. The venue is the residence of the respondent. If the
complainant and respondent reside in different barangays, the
complaint should be filed in the barangay where the
respondent resides.
If they are unable to settle, the barangay court issues a
certification that no compromise was entered into. This
enables the plaintiff to file a case in court.
Q: What if there is irregularity in the issuance of
certificate to file action by the Barangay Captain?
Dean Albano: First of all, the Barangay Captain, as a public
official, is presumed to act regularly in the performance of
official duty. Even grating, however, that an irregularity had
intervened in the Barangay Captains issuance of the
certification, the SC notes that the irregularity is not a
jurisdictional flaw that warrants the dismissal of the criminal
cases before MTC. The irregularity merely affected the
parties cause of action (citing Sabay v. People).
If they, however, were able to settle before the Barangay
Court and a compromise agreement was made between them,
that agreement will be considered final and executory, subject
to repudiation by any party within 10 days from execution of
the agreement. Grounds are any of the vices of consent. If
there is repudiation, the barangay court will issue certification
allowing plaintiff to file the case in court.
There is no need for the barangay court to ask for confirmation
of the compromise agreement. After the lapse of the 10-day
period, it becomes final and executory. It can become subject
to execution by the barangay court. If the terms of the
agreement are not complied with, the barangay court can
execute the judgment, provided such judgment should be
executed within six months from signing of compromise
agreement.
While the barangay court can make a levy on execution, it is
limited to personal properties belonging to respondents. It
cannot levy on real properties owned by respondents. It can
also sell these levied personal properties at public auction to
satisfy the compromise agreement. If there is no satisfaction of
the claim, the remedy for the creditor is to either (1) file a case
of collection in the MTC to satisfy the compromise agreement;
or, (2) according to Miguel v. Montanez, treat the settlement

There is a difference, however, if the settlement agreement


was submitted to court. The court will render a judgment
based on a compromise and this will become the law between
the parties. Once the judgment is subject to execution, and the
execution failed due to the fault of the judgment debtor, the
judgment creditor cannot enforce his original claim anymore.
He may only enforce the judgment based on a compromise
through Rule 39.
Q: Why is there a difference between a settlement
agreement filed in a court of law, and a settlement
agreement being enforced with the barangay court?
Barangay courts do not have any power to render a judgment
to confirm the settlement or compromise agreement. They are
a part of the executive, not the judiciary. Thus, the most they
can do is only to enforce the settlement agreement.
The parties may also agree in writing to convert the barangay
court to an arbitral tribunal. In such case, the barangay court
becomes a quasi-judicial body. This written agreement may be
repudiated within five days from filing said agreement.
The barangay court, as an arbitration court, can make arbitral
awards. This award may not be appealed. The aggrieved party,
however, may file a petition to nullify the arbitral award,
similar to annulment of judgment, with the MTC.
If this award is not annulled, it becomes final and executory
and like the settlement agreement may be enforced by the
barangay court. If there is no satisfaction of the claim, the
remedy for the creditor is to enforce the award with the MTC.
Q: The claim of the creditor was 500k. The creditor and
the debtor submitted the matter for conciliation in the
barangay court. The claim of 500k was reduced
substantially in the proceedings, i.e., 250k paid in
installments. The debtor failed to comply. The agreement
was not repudiated. The creditor filed a complaint in the
regular court for recovery of the 500k. CA held that the
only recourse of the creditor was to enforce the
compromise agreement as provided in LGC and the
implementing circulars, the creditor having lost the right
to claim the 500k. Decide.
SC held that failure to comply with the compromise agreement
is considered as a repudiation of that compromise agreement.
SC cited Art. 2041 of the NCC which states that when a party
fails to comply with the compromise agreement, the
agreement is rescinded by operation of law, and thus the
creditor is entitled to recover the original claim in the courts of
justice.

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There is no need to file rescission of the compromise


agreement in this instance. The effect is that the creditor who
has agreed to the compromise agreement will be reverted to
his original position as a creditor claiming the amount in his
original claim before the compromise agreement.
Mere refusal or failure to comply with compromise agreement
is tantamount to repudiation of the compromise agreement.
Read: Montaez vs. Miguel

SUMMARY PROCEEDINGS
Summary Proceedings refers to the summary procedure
followed by lower courts in unlawful detainer, forcible entry
and money claims up to P200,000, exclusive of interests and
costs.
Q: Is it correct to say that only MTC follow summary
procedure?
No. There are some cases which follow summary procedure
that is cognizable by the RTC. However, these cases involve
family-related cases. They are not civil actions involving
summary procedures under the rules. If you take a look under
your Family Code, there are cases there that involve summary
procedure and they must be filed either in the RTC or Family
Courts as the case may be.
Under Section 3 of the circular governing summary procedure,
there are only four pleadings that may be filed in court:
1. Complaint
2. Answer
3. Compulsory Counterclaim
4. Cross-Claims
Q: Are permissive counterclaims allowed?
No, permissive counterclaims are not allowed, unlike in small
claims proceedings.
Under Section 19, there is a list of prohibited pleadings and
motions. This list is similar with the list in small claims
proceedings.
One of the motions prohibited by the circular is a Motion to
Dismiss, except on the grounds of lack of jurisdiction over the
subject matter, or failure to comply with a condition
precedent, i.e., prior barangay conciliation.
Q: May the court summarily dismiss the case without a
Motion to Dismiss from the defendant?
Yes. The court itself will examine the contents of the
complaint. If the court finds the case should be dismissed
under Rule 16, it can do so motu propio, without a correlative
motion to dismiss filed by the defendant.
Ordinarily, under ordinary procedures, a court cannot simply
dismiss the case without a correlative motion to dismiss.
The defendant is given time to file a responsive pleading for a
shorter period than in ordinary procedure, i.e., 10 days. The
period is non-extendible.
If defendant ignores the period, but files a motion for
extension of 5 days to file an answer, the court can ignore it,
considering it as if it was not filed. If such a motion was filed,
and there was failure of the defendant to file an answer within
10 days, plaintiff can move for judgment on the pleadings.

Q: The circular does not state that the 10 days is nonextendible. What is the basis for this argument?
It is stated in Section 19. One of the prohibited motions is a
motion for extension of time to file pleadings, affidavits or any
other paper. This is also the reason why the court may ignore
the motion and consider it as not filed.
Q: If the defendant is prohibited from filing a motion to
dismiss, but the defendant, after evaluating the complaint
that the case should be dismissed based on any ground in
Rule 16, can he still make use of these grounds to cause
dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of
the grounds as an affirmative defense in his answer, and later
on raise these issues.
One of the prohibited motions also in Summary Procedure,
and this is also true with Small Claims, is the motion to
declare the defendant in default.
If defendant failed to answer on time, the plaintiff can move
for judgment on the pleadings.
In ordinary proceedings, a motion to declare defendant in
default must be initiated by plaintiff before the court can
declare defendant in default. Unless such motion is made, the
court can do nothing.
The reason why the rules on summary procedure do not allow
the court to declare defendant in default is because the rules
under Rule 9 cannot be allowed in summary proceedings. It
will be tantamount to allowing a defendant in default to ask
for lifting the order of default, defeating the purpose of the
rule on summary proceedings. It will not be summary
anymore.
Motion for new trial, motion for reconsideration and petition
for relief from judgment are prohibited in summary
proceedings. This does not mean the defendant has no remedy
after judgment. The only remedy available for a defendant is
to appeal the judgment. Annulment of judgment under Rule 47
can also be had under these proceedings. But before he can
avail of Rule 47, he must comply with the strict requirements
under Rule 47. Thus the aggrieved party must first appeal if
that is available to him.
One important aspect of Summary Procedure is the presence
of a preliminary conference. This is similar to pre-trial under
civil actions in ordinary procedure.
Q: Is it correct to say that there is no trial or hearing in
summary procedure?
No A trial is not absolutely prohibited in summary
proceedings, as certain criminal cases are governed by
summary proceedings. A trial has to be conducted because the
court cannot deprive the accused of his constitutional right of
confrontation and from cross-examining the witnesses.
Q: Why did not the SC adopt a common summary
procedure for civil and criminal cases? Why disallow trial
in civil cases under summary proceedings?
This is because SC cannot violate the rights of an accused in a
criminal case. The same right is not availing to a defendant in
a civil case under summary procedures.

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Q: If the aggrieved party appeals the case to the RTC, will


RTC follow the rules of summary procedure as well?
No. Summary procedure applies only to inferior courts. Once
the case is elevated to the RTC in appeal, the appellate court
has to comply with the ordinary rules of procedure under the
Rules of Court.
Read: Rule 70 of the Rules of Court

SMALL CLAIMS PROCEEDINGS


A Small Claims Court has jurisdiction over payment of money
where the value of the claim does not exceed P100,000,
exclusive of interest and cost. This is slightly different from
the general rule of exclusive of interest, damages, attorneys
fees, litigation expenses, and cost.
Q: Why are attorneys fees not included?
For the simple reason that lawyers are not allowed to
participate over Small Claims Proceedings.
Joinder of causes of action is allowed, so long as the aggregate
amount should not go beyond P100,000.
Q: From where must this payment of money originate?
According to the circular, the claim or demand may be for (1)
money owed under contract, (2) damages arising from tort,
quasi-contract, or contract, and (3) enforcement of a barangay
amicable settlement or an arbitration award involving a money
claim.
Q: Suppose there is a contract of lease between A and B. A
is the lessor and B, the lessee. Under the contract, B must
pay A P10,000 as monthly rent. B is in arrears for five
months, meaning he is indebted to A for P50,000 in back
rentals. May B go to the Small Claims Court to enforce his
claim for P50,000?
Yes, he may. The claim for P50,000 back rentals is within the
jurisdiction of a Small Claims Court.
Q: Suppose A also wishes to recover possession of the land
from B, may he do so?
No, he may not. If he wishes to recover possession of the land
from B, he must file an unlawful detainer case. The Small
Claims Court only has jurisdiction over purely money claims.
Q: Suppose A filed an unlawful detainer case against B in
the MTC, may he do so?
Yes, there is something wrong with the complaint. Provided
that he has also a pending case with the Small Claims Court,
he cannot split the action so that he is collecting back rentals
from one court, and an unlawful detainer case in another court.
That would be tantamount to splitting a cause of action.
Q: Suppose there is a contract of real estate mortgage
between A and B as security for a loan worth P50,000. A is
the mortgagor-debtor and B, the mortgagee-creditor. May
B go to the Small Claims Court and demand from A his
claim for P50,000?
Yes, he may. The claim for P50,000 is within the jurisdiction
of the Small Claims Court.
Q: Using the above problem, may he foreclose the
mortgage if the claim is not satisfied?
No, he may not. Small Claims Court only has jurisdiction to
enforce money claims. Once the mortgagee-creditor has

enforced his claim in a Small Claims Court, the mortgage is


automatically cancelled by operation of law.
Q: In a contract of lease and a contract of mortgage then,
is it better for the lessor or creditor not to file their cases in
a Small Claims Court?
It depends. If the lessor or creditor wishes to only enforce the
money claim aspect of their cases, the Small Claims Court is a
better court since it is faster and more advantageous to their
interest. However, if they wish to evict the lessee, or foreclose
the mortgage, they are much better not to file their cases with
the Small Claims Court.
The scheme in Small Claims proceedings is that they are not
required to prepare their own pleadings. In Metro Manila, the
MTC assigned to entertain these claims have ready forms for
complaints (called a Statement of Claim) or answer (called a
Response) to be filed in court. The complainant only has to fill
in the blanks. Minimal docket fee is paid.
Unlike Summary Procedure, permissive counterclaims are
allowed in Small Claims Proceedings.
There are prohibited pleadings and motions similar to
Summary Procedure. One of these prohibited pleadings is a
Motion to Dismiss. Like Summary Procedure, however, the
court by itself may dismiss the complaint if one of the grounds
under Rule 16 is apparent in the face of the document. The
unavailability of a Motion to Dismiss does not mean that the
defendant may not incorporate in his Response the defenses
under Rule 16.
At the time of filing the Statement of Claim or Response,
certified photocopies of the actionable documents subject to
the claim or defense as the case may be, as well as the
affidavits of the witnesses and other evidence must be attached
with the Claim or Response.
Judicial Dispute Resolution
The MTC encourages parties as much as possible to enter into
a compromise agreement. Judicial Dispute Resolution is
similar to pre-trial in ordinary civil actions and preliminary
conference in Summary Procedure.
In Manila, based on experience, it is usual that the JDR court
and the actual court that will decide the case are different from
each other. If you take a look in your circulars, absent an
agreement of the parties that the JDR judge will be the same
judge that will decide the case, there will be another pairing
judge that will decide the case instead.
Unlike Summary Procedure, small claims proceedings have
nothing to do with criminal cases, only civil collection cases.
In small claims procedure, the judgment is immediately final
and executory, no appeal is available. Motion for new trial,
motion for reconsideration and petition for relief from
judgment are not available since they are prohibited pleadings
under the circular. The only remedy available to an aggrieved
party is under Rule 65, Certiorari. Thus, there is no appeal,
plain, speedy or adequate remedy available.
Q: Does it mean that the aggrieved party in small claims
procedure is treated more kindly than in summary
procedure?

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No. The availability of Rule 65 in Small Claims procedure is


not really a benefit. A petition under Rule 65 does not stop the
respondent court from carrying out its decision.
Unlike in an appeal, usually, execution is not allowed, except
in forcible entry and unlawful detainer. In case of unlawful
detainer, under Rule 70, the payment of supersedeas bond and
the payment of current rate of monthly rentals can stop
enforcement of the summary proceedings judgment.
The only way Rule 65 can prevent immediate execution in
small claims is that the court taking cognizance of Rule 65
will issue a TRO or writ of preliminary injunction upon
application of appellant. There is a need to post an injunction
bond to avail of the TRO or writ of preliminary injunction.
Q: Is it always practical to proceed with Rule 65 if there is
an adverse decision against a party?
No. Small claims proceedings involve, as the name implies,
small claims. It is sometimes impractical to proceed with Rule
65 since it is possible that the attorneys fees and litigation
expenses will be more than the actual sum to be collected.

PLEADINGS AND CONTENTS OF PLEADINGS


Let us take Rule 6, 7, 8, 9, and 10. Take them as one set, as
they refer to the same thing, pleadings and content of
pleadings.
Pleadings should always be in writing. We do not recognize in
our system oral pleadings.
Pleading is a written statement or allegations of the cause or
defenses submitted to the court for judgment.
Under Rule 6, the litigants are allowed to make use of nine
pleadings, but numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)
There are several pleadings that may only be allowed if
accompanied by another pleading. For example, under Rule
11, Section 8, a compulsory counterclaim or a cross-claim that
a defending party has at the time he files his answer shall be
contained therein. And under Rule 9, Section 2, if he fails to
do so, a compulsory counterclaim, or a cross-claim, not set up
shall be barred.
Q: Are there any actions where some pleadings are not
allowed?
Yes. For example, cases governed under Summary Procedure,
Small Claims Proceedings, Environmental Cases, the Writs of
Kalikasan, Amparo and Habeas Data, and expropriation,
among others, prohibit certain pleadings and motions.

INITIATORY AND NON-INITIATORY PLEADINGS


There are two classification of pleadings under Rule 7:
1. Initiatory Pleadings
Under Rule 7, all claim pleadings are initiatory
pleadings.

There should be a certification on non-forum


shopping, the violation thereof could lead to adverse
consequences such as dismissal with or without
prejudice; and the court shall impose docket fees
under Rule 141. The payment of docket fees is
considered jurisdictional.
2. Non-Initiatory Pleadings
Non-initiatory pleadings need no certification of nonforum shopping; and no docket fees are required.
Q: Compulsory counterclaims and cross-claims are claim
pleadings. Are they also initiatory pleadings?
No, they are not initiatory pleadings and therefore do not
require a certification of non-forum shopping or the payment
of docket fees. It should be noted that they are contained in an
Answer and the latter is not a claim but a responsive pleading.
Q: Rule 141 states that compulsory counterclaims and
cross-claims require docket fees. What is the basis that
compulsory counterclaims do not require docket fees if not
the Rules of Court?
With respect to compulsory counterclaims, courts do not
consider it an initiatory pleading which will necessitate the
payment of docket fees.
See Santo Tomas University v. Surla.
In 2010, SC decided that if the defendant files an answer with
permissive counterclaims, fails to pay docket fees, and the
court has neglected to collect docket fees thereto tries the case
resulting in the dismissal of the complaint and granting the
permissive counterclaim, the decision over the permissive
counterclaim is void due to lack of jurisdiction, there being no
showing that the court acquired jurisdiction over the counterclaim. The defendant has the duty to remind the clerk of court
that docket fees should be collected against the defendant so
as to enable the execution of a decision in favor of the
defendant.

COMPLAINT
Ultimate Facts
In ordinary civil cases, ultimate facts should be alleged in the
complaint. The plaintiff, however, is not sanctioned if
evidentiary facts are included therein. They will only be
considered as surplusage by the court.
In several circulars, in certain proceedings, a complaint need
not state just ultimate facts. In a complaint filed under
Summary Proceedings, plaintiff is encouraged to include in his
complaint evidentiary facts and to attach his evidence in the
document. In Kalikasan proceedings, the plaintiff is required
to attach to his complaints all the evidence that are in the
possession of the plaintiff (documentary, testamentary or
object). Also in Kalikasan cases, the defendant should include
his evidence in the answer, aside from specific denials.
The ultimate facts are those that constitute the cause of action,
an allegation that the plaintiff has a right, an allegation that the
defendant has violated that right, or an allegation of
compliance with conditions precedent that gave rise to accrual
of the cause of action.

ANSWER

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Insofar as the answer is concerned, it is the pleading in


response to a complaint. It may contain positive or negative
defenses or both along with evidentiary facts. The defendant,
however, cannot move for the court to order the plaintiff to
present evidentiary facts in his complaint as the statement of
the ultimate facts alone is sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part
of the answer. A negative defense must always be in the form
of a specific denial.
Q: What is the standard to follow that a denial is specific?
It is found in Section 10, Rule 8. There are three modes, three
ways, in which a denial may be considered specific. These are:
1. Total denial of the allegations in the complaint
with accompanying statements upon which he relies
to support his denial;
2. Part denial and part admission; and
3. Just a statement by defendant that he has no
knowledge or information about the truth of the
allegation.

One which arises out of or is


necessarily connected with
the transaction or occurrence
that is the subject matter of
the opposing partys claim
(Sec.7, Rule 6)

It does not arise out of nor is


it necessarily connected with
the subject matter of the
opposing partys claim

It does not require for its


adjudication the presence of
third parties of whom the
court cannot acquire
jurisdiction

It may require for its


adjudication the presence of
third parties over whom the
court cannot acquire
jurisdiction

Barred if not set up in the


action (Sec. 2, Rule 9)

Not barred even if not set up


in the action

Need not be answered; No


default

Must be answered,:
Otherwise, default

Not an initiatory pleading.

Initiatory pleading. (Riano, p.


336)

Need not be accompanied by


a certification against forum
shopping and certificate to
file action by the Lupong
Tagapamayapa.

Must be accompanied by a
certification against forum
shopping and whenever
required by law, also a
certificate to file action by the
Lupong Tagapamayapa
(Santo Tomas University v.
Surla, G.R. No. 129718, Aug.
17, 1998) (2007 Bar
Question).

The court has jurisdiction to


entertain both as to the
amount and nature (Sec. 7,
Rule 6; Ibid p.331)

Must be within the


jurisdiction of the court
where the case is pending and
cognizable by regular courts
of justice otherwise,
defendant will have to file it
in separate proceeding which
requires payment of docket
fee

Theoretically, the defendant can make use of any mode of


denial right away.
The court, however, has in several cases discouraged the 3rd
mode of specific denial, and imposed some sanctions if a
defendant insists in using the 3rd mode as the only mode
contained in his answer.
SC held that if the defendant had no knowledge or information
on the matter, defendant should explain why. If he fails to do
so, such denial will not be considered as a specific denial. It
will be considered as a general denial, and a general denial
will be treated as a judicial admission to the allegations
contained in the complaint. As a result, a judgment on the
pleadings can be had upon motion of the plaintiff.
Negative Pregnant
Another form of denial frowned upon by jurisprudence are the
following: I specifically deny paragraph 1 because I had not
dealt with the plaintiff or I specifically deny paragraph 2 of
the complaint. They are considered as negative pregnant.
They are specific denials that contain no ground relied upon in
support of the denial, and thus are considered as general
denial. The remedy of the defendant is to amend the answer as
a matter of right as provided in Rule 10.
Q: Are they cases where general denial is allowed?
A general denial is allowed in Habeas Corpus cases, but
expressly prohibited in Writ of Amparo and Habeas Data
cases.

COUNTERCLAIMS
It is a claim made by the defendant against the plaintiff.
Q: What is the difference between a compulsory and
permissive counterclaim?
Compulsory Counterclaim

Permissive Counterclaim

Q: Is there any difference between a compulsory


counterclaim filed in the RTC and a compulsory
counterclaim filed in the MTC?
A compulsory counterclaim filed in RTC cannot be a
compulsory counterclaim filed in the MTC.
For example, a counterclaim filed in the RTC states that the
case filed was unjust and defendant claimed legal expenses
amounting to P200,000. This is considered to be a compulsory
counterclaim in the RTC even if such amount is below the
threshold for claims in the RTC. We cannot challenge the
RTCs jurisdiction by the amounts claimed in the
counterclaim because of the principle of ancillary jurisdiction.
If, on the other hand, the counterclaim filed in the MTC by a
defendant was claiming 500k in moral damages, under the
rules, this is no longer a compulsory counterclaim. It is treated
as a permissive counterclaim. The MTC can order dismissal of
the counterclaim, as the counterclaim is outside the
jurisdiction of the MTC. We cannot apply adherence to
jurisdiction since the amount of P500,000 is over and above
the jurisdictional amount allowed by law, i.e., BP 129.
In sum, if the amount to be recovered is beyond the
jurisdictional amount of the MTC, the compulsory
counterclaim is converted to a permissive counterclaim. If the
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amount to be recovered is below the jurisdictional amount of


the RTC, the counterclaim is still treated as a compulsory
counterclaim.

REPLY
The filing of a reply is generally not necessary. It is in fact
next to useless.
Why is it useless? If the plaintiff does not reply, still, the
matters not answered in the reply are deemed controverted. In
a complaint, if the allegations therein are not specifically
denied or were not dealt with in the answer, they are deemed
admitted. If the defendant does not specifically deny or does
not set up proper affirmative defenses in the answer, the
defendant is sanctioned by law. This will lead the court to
conclude that the defendant has admitted all allegations in the
complaint, and thus will lead to a judgment on the pleadings.
Q: The defendant includes in his answer an affirmative
defense, and the new matter asserts a positive defense of
extinguishment, for example, full payment of the loan. The
plaintiff does not file a reply. Is the plaintiff deemed to
have admitted the new matter?
No. The new matter alleged in the answer is deemed
controverted even without a reply. The plaintiff need not
submit a reply as the rules itself state that the new allegation
or matter is deemed controverted.
Exception to Uselessness of a Reply
There is only one exception to the rule, and that is where the
defense in the answer is based on an actionable document. A
reply under oath Rule 8 must be made. Otherwise, the
genuineness and due execution of the document shall be
deemed admitted, and that admission is considered as a
judicial admission.
Q: How about allegations of usury? Is it an exception?
No. Under our present rules, allegations of usury MUST be
contained in a complaint or similar pleadings. The law is not
specific, but given the liberal interpretation of the rules, it
leads to the conclusion that as long as the allegations of usury
are contained in a complaint or similar pleading like counterclaim or cross-claim, there is a need for specific denial. The
responsive pleading would be an answer, not a reply. If the
allegation of usury is contained in a counterclaim/cross-claim,
the responsive pleading is an answer to the
counterclaim/cross-claim. If the allegation of usury is
contained in an answer, there is no need to specifically deny in
the reply.
Q: What is an actionable document?
It is the document relied upon by the plaintiff and the
defendant for his action or defense (Araneta, Inc. vs. Lyric
Factor Exchange, Inc. 58 Phil 736)

A variance in the substance of the document set forth in the


pleading and the document annexed thereto does not warrant
the dismissal of the action (Convets, Inc. v. National
Development Co., G.R. No. L-10232, Feb. 28, 1958).
However, the contents of the document annexed are
controlling.
For example, the defendant alleges payment in his answer
supported by a receipt issued by the plaintiff, acknowledging
full liquidation of the indemnity. Under law, if the claim or
demand is based on an actionable document, it is imperative
upon the misleader to allege on the pleading the actionable
document.
Q: Can the plaintiff simply file an affidavit in opposing the
actionable document?
The only way that a plaintiff can make a specific denial under
oath against the actionable document alleged in an answer is
by way of a reply. A reply is the only pleading that is available
that responds to an answer. If the plaintiff makes a reply
setting up a specific denial, he should also see to it that the
specific denial is under oath. If he did not do so, the
genuineness and due execution of the actionable document is
deemed admitted.
Q: What if the plaintiff titles his reply as an answer? Will
that be fatal to his defense?
No. The contents of the pleading shall be controlling and not
the title asserted by the one making it.
There are, however, exceptions to the exception. In these
cases, even if the plaintiff does not make a reply under oath, or
the defendant does not make an answer under oath, their
failure to do so will not be considered by the court as a judicial
admission to the genuineness or due execution of the
actionable document. These cases are:
1. When the adverse party does not admit being a
party to that document, or
2. Even if such party is a party to the document, there
being an order issued by the court for the inspection
of the original document, the party does not comply
with that order.
Q: Is impleading an actionable document mandatory?
The mode of impleading an actionable document was held by
the SC to be mandatory. If the party impleading such
document did not follow the modes provided in the Rules, the
party will not be allowed to present proof of his cause of
action or defense as the case may be, as the attachment of the
actionable document after the answer or reply has been filed
will adversely affect the other party.

THIRD-PARTY COMPLAINT

For example, a promissory note in an action for collection of a


sum of money is an actionable document (Riano, Civil
Procedure: A Restatement for the Bar, p. 101, 2009 ed.).

There can potentially be no end to the number of parties in the


complaint as long as the allegations in the pleadings have
something to do with the claim of the plaintiff in his
complaint. If you would notice among the pleadings, it is only
the third/fourth party complaint that requires leave of court.

Q: How are actionable documents pleaded?


1. By setting forth the substance of such document in
the pleading and attaching said document thereto as
an exhibit; or
2. By including the contents of the document
verbatim in the pleading (Sec. 7, Rule 8).

The third/fourth party complaint must allege that the


third/fourth party defendant is liable to said third/fourth party
plaintiff, by reason of contribution, subrogation or any other
relief in relation to the subject matter of the claim in the

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complaint. The third/fourth party complaint is always


connected to the subject matter of the complaint.
If a complaint for instance is for the recovery of an unpaid
loan, a third party complaint cannot contain a claim for the
recovery of ownership of a piece of land. The subject of the
third party complaint should always be related to the subject
of the complaint.
Q: Why do we need leave of court in order to file a third
party complaint?
This is because a third party complaint will forcibly bring into
the action a stranger to the case. The third party defendant is a
stranger to the case. This is why the rules require that the court
should be given discretion whether to allow or not to allow the
third party complaint to see if there is a need to bring a
stranger to the case or even if there may be a need, the claim is
unrelated to the subject to the case. If the court denies the
motion for admission of a third party complaint, the remedy of
the defendant is to file a separate complaint against the third
party defendant.
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) party complaint is a claim that a
defending party may, with leave of court, file against a person
not a party to the action, called the third (fourth, etc.) party
defendant, for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim. (Sec.11, Rule 6)
Q: Distinguish a third-party complaint from the rules on
bringing in new parties under Section 12.
A: A third-party complaint is proper when not one of the
third-party defendants therein is a party to the main action.
Whereas in bringing in new parties, if one or more of the
defendants in a counterclaim or cross-claim is already a party
to the action, then the other necessary parties may be brought
in under the rules on bringing in new parties.
Q: What are the tests to determine whether the third-party
complaint is in relation to the subject matter of the claim
in the complaint?
A:
1. Whether it arises out of the same transaction on
which the plaintiffs claim is based, or, although
arising out of another or different transaction, is
connected with the plaintiffs claim;
2. Whether the third-party defendant would be liable
to the plaintiff or to the defendant for all or part of
the plaintiffs claim against the original defendant;
and
3. Whether the third-party defendant may assert any
defenses which the third-party plaintiff has or may
have to the plaintiffs claim.
Where the trial court has jurisdiction over the main case, it
also has jurisdiction over the third party complaint, regardless
of the amount involved as a third-party complaint is merely
auxiliary to and is a continuation of the main action (Republic
v. Central Surety & Insurance Co., G.R. No. L-27802, Oct. 26,
1968).
A third party complaint is not proper in an action for
declaratory relief. (Commissioner of Customs v. Cloribel, G.R.
No. L-21036, June 30, 1977).
The court is vested with the discretion to allow or disallow a
party to an action to implead an additional party. Thus, a

defendant has no vested right to file a third party complaint


(China Banking Corporation vs. Padilla, G.R no. 143490,
Feb. 2, 2007; Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against UNICAP
for a sum of money. For failure to get full payment, Abby
went after UNICAPs debtor Ben. Ben is a policy holder of
Insular. The courts sheriff then served a notice of
garnishment to Insular over several account receivables
due to Ben. Insular refused to comply with the order
alleging adverse claims over the garnished amounts. The
trial court ordered Insular to release to Abby the said
account receivables of Ben under the policies. Insular then
filed a petition for certiorari with the CA alleging that the
trial judge gravely abused his discretion when he issued
the garnishment order despite its adverse claim on the
garnished amounts. The CA gave due course to the
petition and annulled the order of the trial court. Is the
Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the
proper remedy from the denial of a third-party claim. Since the
third-party claimant is not one of the parties to the action, he
could not, strictly speaking, appeal from the order denying its
claim, but should file a separate reinvindicatory action against
the execution creditor or a complaint for damages against the
bond filed by the judgment creditor in favor of the sheriff. The
rights of a third-party claimant should be decided in a separate
action to be instituted by the third person (Solidum v. CA, G.R.
No. 161647, June 22, 2006).
Q: What is Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
Under its ancillary jurisdiction, a court may determine all
questions relative to the matters brought before it, regulate the
manner in which a trial shall be conducted, determine the
hours at which the witnesses and lawyers may be heard, and
grant an injunction, attachment or garnishment.
Q: Let us say that the subject of the complaint is the
recovery of 1M unpaid loan. The competent court is an
RTC. The defendant asks the court for permission to file
an answer with a third party complaint. In the third party
complaint, the defendant asserts that Juan de la Cruz is
bound to pay defendant the sum of 200K by reason of
contribution, indemnity, subrogation or any other relief.
With respect to the complaint, there is no question as to
jurisdiction as the competent court is really an RTC. It is
with respect to the third party complaint where a
jurisdictional issue is present. The third party complaint is
effectively a complaint filed by the defendant against a
stranger to the case, and the amount sought to be
recovered is 200k, which is an amount not within the
jurisdiction of the RTC. Can the court, upon motion by the
third party defendant, order the dismissal of that third
party complaint on the ground of lack of jurisdiction over
the subject matter of the case?
No. We apply rule of ancillary jurisdiction of a trial court. If
the trial court has jurisdiction over the principal complaint
filed by the plaintiff against the defendant, the same court will
exercise ancillary jurisdiction over all collateral pleadings,
incidental pleadings that are related to the complaint. Thus, the
third party complaint to recover 200k is still cognizable by the
same court.

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Q: Is it correct to say that third party complaint or fourth


party complaint would be the only pleadings which will
enable a litigant to bring in a stranger to the case? Can a
litigant bring in a stranger without a third or fourth party
complaint?
No. The Rule does not say that it is the only means/pleading
available to bring in a stranger to the case.
Q: Can the defendant compel a stranger to be a party to
the case by filing a counterclaim or cross-claim? What is
your basis?
The law authorizes the defendant to bring in a stranger by
filing a permissive or compulsory counter-claim. The law
authorizes the defendant to bring in a stranger to the case
through the filing of a cross-claim. Although the Rules defines
a cross-claim as a claim by a defendant against his codefendant, the Rules does not say that in filing a cross-claim
against a co-defendant that a third person can be impleaded in
the cross-claim.
In the definition of a counterclaim, the defendant could set up
the counterclaim against the plaintiff or against any party or
person who is not yet a party to the case, as long as the court
can acquire jurisdiction over the person of the said person.
The basis is found in Section 12, Rule 6, of the Rules of Court.
Q: Why do we allow a defendant to bring in a stranger to
the case by not using a third-party complaint but by crossclaim or counterclaim, especially when such is
compulsory?
Because there is another provision in the Rules which say that
if there is a compulsory counterclaim or cross-claim not set up
in the answer, that compulsory counterclaim or cross-claim are
barred. If there is a need to implead a stranger, he should be
allowed to implead a stranger, although not via a third party
complaint.

STRIKING OUT OF PLEADING


CONTAINED THEREIN

OR

MATTER

There are certain limitations to matters that may be included in


a motion or pleading. The law does not allow scandalous and
indecent matters to be alleged in a pleading. The remedy of
the other party in these cases is to ask the court to strike out
the pleading itself or the scandalous or indecent matter
contained therein.
Q: If the complaint contains scandalous and indecent
matters and the defendant moves to strike out these
matters, will the running of the period to answer be
suspended?
Yes. The Rules do not expressly say so, but the period is
interrupted until the court has finally resolved the motion.
Personal Opinion: The reason might be that, similar to a
motion for a bill of particulars, the defendant cannot properly
prepare his answer until and unless the court resolves if the
complaint is proper or not.
Q: May striking out of pleadings or any matter contained
therein be done by courts motu proprio?
Yes. The court has authority to do so even without motion
from the adverse party.

FORMS OF A PLEADING: SIGNING


A pleading must always be signed. An unsigned pleading will
be treated as a sham pleading. You cannot submit an unsigned
pleading. The court motu propio can order the striking out of
the pleading.
Q: Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for
him. Either or both can sign the pleading.
Q: Are there pleadings that are inadmissible by the court
if the only signature is that of the lawyers?
By way of exception, yes, in case of marriage annulment
cases. According to the SC Circular, the complaint and the
answer must be signed also by the party himself. If signed
only by the lawyer alone, the court will not accept the
pleading.
But generally, the signature of the counsel is enough for a
pleading to be accepted by the court.
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
2. That to the best of his knowledge, information and
belief there is good ground to support it; and
3. That it is not interposed for delay. (Sec. 3, Rule 7)

FORMS OF A PLEADING: VERIFICATION


Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or
rule, pleadings need not be under oath, verified or
accompanied by affidavit.
Q: What is the significance of verification?
Dean Riano: It is intended to secure an assurance that the
allegations in a pleading are true and correct and not the
product of the imagination or a matter of speculation, and that
the pleading is filed in good faith. The absence of a proper
verification is cause to treat the pleading as unsigned and
dismissible (citing Chua vs. Torres, 468 SCRA 358, p. 60.)
Q: What are the effects of lack of verification?
A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned. Hence, it produces
no legal effect.
It does not, however, necessarily render the pleading
defective. It is only a formal and not a jurisdictional
requirement. The requirement is a condition affecting only the
form of the pleading and non-compliance therewith does not
necessarily render it fatally defective.
The absence of verification may be corrected by requiring an
oath. The rule is in keeping with the principle that rules of
procedure are established to secure substantial justice and that
technical requirements may be dispensed with in meritorious
cases.
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares that the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of his personal
knowledge or based on authentic records.
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If the verification is not according to the tone given in the


Rules, that will be an inadequate or insufficient verification.
And under Rule 7, the absence or inadequacy of the
verification shall result in an effectively unsigned pleading.
But the SC keeps on ignoring the Rules on verification.
Although it would appear in Rule 7 that absence of
verification could be a fatal defect, the SC keeps on ruling that
the absence of verification is only a formal defect. If you come
across a question concerning the need to verify a pleading or
determining the adequacy of verification in a pleading, and
you are asked what the effect is, based on rulings by the SC, in
instances required by law for submission of a pleading with an
inadequate verification is only a formal defect.
Q: A complaint, a permissive counterclaim, cross-claim, a
third/fourth party complaint, all of these being initiatory
pleadings, must have a certification of non-forum
shopping. Does it mean to say that verification of a
pleading is now the general rule, given that in Rule 7,
initiatory pleadings must carry with them a certification of
non-forum shopping?
No. Certification of non-forum shopping is different from
verification of a pleading.
Verification of a pleading refers to the allegations in the
pleading. The verification states that one has read the pleading
and that it is correct based on his personal knowledge or based
on authentic records. The contents of certification of nonforum shopping does not have anything to do with the
contents of an initiatory pleading, as it simply certifies that no
similar case had been filed in any other court, tribunal or body,
and to notify the court right away if one should come to know
of such fact.
In the case of a Certification of Non-Forum Shopping, the SC
appears to have adapted the rule of substantial compliance as
to the requirements of the certifications contents. Take note
that the Rules say that all principal plaintiffs should sign the
certification. Otherwise, the certification will be ineffective.
This defect is not curable by amendment under Rule 7.
There was a recent case wherein the complaint had 5 principal
plaintiffs and only two of them signed. The defendant
challenged the authority of the court receive the case as the
certification was ineffective. The court refused to dismiss the
case. The court said that it will go ahead with the case but will
drop the claims where the non-signing plaintiffs are
concerned. In effect, the court said the signature of the two
plaintiffs will of substantial compliance with the requirement.
As to the issue of a lawyer signing the certification of nonforum shopping, the general rule being that a party himself
must sign, if the lawyer sign for the plaintiff, the lawyer must
be able to show his authority to do so via a special power of
attorney authorizing him to sign in the stead of his client.

CORPORATION EXECUTING THE VERIFICATION


AND CERTIFICATION OF NON-FORUM SHOPPING
Q: What is the rule when the plaintiff is a juridical
person?
Dean Riano: The certification against forum shopping where
the plaintiff is a juridical entity like a corporation, may be
executed by properly authorized person. This person may be a

lawyer of a corporation. As long as he is duly authorized by


the corporation and has personal knowledge of the facts
required to be disclosed in the certification, such may be
signed by the authorized lawyer.
Dean Albano: The following officials or employees of the
company can sign the verification and certification without
need of a board resolution:
1. The Chairperson of the Board
2. The President of the Corporation
3. The General Manager or Acting GM
4. Personnel Officer
5. Employment Specialist in a labor case
Q: If the officer is required to present a Secretarys
Certificate to prove he is authorized but failed to do so,
will the complaint be dismissed?
Dean Albano: Qualify.
The failure to attach the Secretarys Certificate, attesting to the
GMs authority to sign the Verification and Certification of
Non-Forum Shopping, should be not be considered fatal to the
filing of the petition. The subsequent submission of the board
resolution, together with the pertinent documents can be
considered as substantial compliance with the rules.
If there is substantial compliance (but not non-compliance),
the complaint will not be dismissed (citing Mid-Pasig Land
Dev. Corp. v. Tablante).
Q: Corporation XYZ is the petitioner in a civil case.
Alexander, president of corporation XYZ, signed the
certification against forum shopping in behalf of said
corporation without presenting any proof of authority
from the corporation. Is the certification against forum
shopping valid? If not, how may it be cured?
A: No. When the petitioner in a case is a corporation, the
certification against forum shopping should be signed by its
duly authorized director or representative. The authorized
director or representative of the corporation should be vested
with authority by a valid board resolution. A proof of said
authority must be attached with the certification (PAL v.
FASAP, G.R. No. 143088, Jan. 24, 2006).

OMNIBUS MOTION RULE


Q: What is the Omnibus Motion Rule?
All available grounds for objection in attacking a pleading,
order, judgment, or proceeding should be invoked at one time;
otherwise, they shall be deemed waived.
Q: Are there any exceptions to the Omnibus Motion Rule?
The court may dismiss the case motu propio based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendencia;
3. Res judicata; and
4. Barred by statute of limitations (prescription).
These are we call as non-waivable defenses in civil procedure.
Q: Are there any non-waivable defenses in criminal
procedure?
Yes. These grounds are:
1. That the facts charged do not constitute an offense;
2. That the court trying the case has no jurisdiction
over the offense charged;

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3. That the criminal liability has been extinguished;


and
4. Double jeopardy.
A previous decision or judgment will bar the filing of another
case similar or tackling the same issues, having the same
parties, and the same or related reliefs. In a civil case, it is
called res judicata, while in a criminal case, it is called double
jeopardy.
In criminal cases, there is the defense that the information
does not charge an offense. In civil cases, this is equivalent to
failure to state a cause of action. In civil cases, if the
complaint does not properly allege a cause of action and the
complaint was not amended at all, where the defendant does
not file a motion to dismiss, the case went to trial, and the
plaintiff showed in the trial that he indeed has cause of action
without objection from the defendant, the complaint is deemed
amended. This is called amendment to pleadings to conform to
evidence.
Thus, unlike criminal cases, in civil cases, the failure to state a
cause of action is waivable, the remedy being an amendment
to conform to evidence. The court may order such amendment
be made.

Q: What if the plaintiff waits for the date of hearing and


opposes the defendants Motion to Dismiss but lost? May
he still amend his complaint as a matter of right even if
there is an order by the court dismissing the complaint?
Yes. The order of dismissal only becomes final until the lapse
of the 15-day period from the time the order of dismissal is
entered. If the plaintiff does not wish to appeal the order of
dismissal or even file a petition for certiorari under Rule 65 as
the case may be, he has a third remedy and that is to amend his
complaint as a matter of right. The plaintiff may still exercise
this amendatory right before the order of dismissal becomes
final.
Q: The plaintiff changed his cause of action in the
complaint, and the amendment was as a matter of right. Is
this allowed? What if an answer was already filed?
If amendment is a matter of right, the plaintiff can change his
pleadings cause of action.
If amendment is not a matter of right, the plaintiff must be
authorized by the court to amend the pleading to include
another cause of action or change a cause of action.
All pleadings can be amended as a matter of right or with prior
leave of court.
Read: Philippine Ports Authority vs. Gothong

AMENDED / SUPPLEMENTAL PLEADINGS


Q: A plaintiff files a case for accion reinvindicatoria. As
what we learned before in jurisdiction, the assessed value
of the property properly determines jurisdiction. The case
was filed in the RTC. No allegation was included as to the
value of the property. Can RTC dismiss the case?
Yes. If the court is unable to determine that it has jurisdiction
over the case, as in this instant, it may dismiss the case for
lack of jurisdiction over the subject matter of the case.
Q: In the example above the plaintiff failed to make the
necessary jurisdictional averment. Having discovered it, he
amended the complaint and submitted it before the
defendant may answer. Is the plaintiff correct?
Yes. The amendment was an amendment as a matter of right.
The plaintiff has the right amend his complaint once before a
responsive pleading is filed, even to the extent of amending
the averment to confer jurisdiction. Thus, the plaintiff is
correct to amend his pleading to include the jurisdictional
averment.
This situation is also applicable, for example, in unlawful
detainer. If the plaintiff failed to allege in his complaint that a
final demand had been made, the plaintiff may amend his
complaint as a matter of right to include the said allegation.
Q: What if the defendant files a Motion to Dismiss? May
the plaintiff amend his complaint as a matter of right
before the date of hearing for the Motion to Dismiss?
Yes. A Motion to Dismiss is not a responsive pleading. Even
if the defendant files a Motion to Dismiss, the plaintiff
reserves the right to amend his complaint once as a matter of
right.
If the plaintiff does amend his complaint, the trial court has no
other recourse except to deny the Motion to Dismiss. The
defects cited by the defendant are already remedied by the
amended complaint.

Change in the cause of action in the complaint is a matter of


discretion upon the court once an answer had already been
filed. As long as the amendment gives the parties the
opportunity to tell the court what is the true dispute between
the parties, and as long as it does not involve prejudice to
substantial justice. Hence, if the complaint was amended not
as a matter of right, the defendant can also amend his answer,
if needed, to properly respond to the amended complaint. In
the Gothong Case, the SC encouraged trial courts to liberally
the Rule on amendment of pleadings, whether as a matter of
right or as a matter of discretion.
Q: In case the complaint has been amended, are new
summons still required?
If no answer has yet been filed, summons is still necessary. If
there is already an answer, the Court held that there is no more
need to issue new summons. The amendment in that case is
with leave of court and more importantly, the defendant is
furnished a copy of the amended complaint.
Personal Opinion: There will however be a new set of
summons if the amended complaint impleads new defendants.
This is only necessary for due process.
Q: How many amendments may be made by a party?
A: As many times as he wants, but amendment as a matter of
right can only be availed of once, and only before an answer
has been filed. The second, third, fourth amendments need
leave of court.
Q: Can we amend pleadings if the case has already been
decided and is on appeal either in the CA or SC?
Yes. Amendments can be done if it is only formal in nature.
But if the amendment is substantial, appellate courts will
hesitate as such amendment will injure the rights of parties
who had not appealed. What can be brought on appeal are
issues that have been raised from the trial court.

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Q: When is amendment made to conform to or authorize


presentation of evidence?
1. When issues not raised by the pleadings are tried with the
express or implied consent of the parties.
2. Amendment may also be made to authorize presentation of
evidence if evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby.
If the evidence presented by the plaintiff is not material to the
allegations in his complaint, and there is an objection by the
defendant, that objection should be sustained. But if the
presentation of evidence that is not material to the complaint is
not objected to, the court can motu propio tell the plaintiff not
to continue the presentation of that evidence.
Q: A filed an accion reinvidicatoria against B. During the
trial, A presented evidence that B has an outstanding loan
against the former for P500K. Although this loan is
independent and alien to the original action, Bs counsel
did not object to the presentation of evidence in court. May
the trial court in its decision award A with P500K?
Yes. As complaint is deemed to have been amended to
conform to evidence. A does not even have to file a motion
requesting to amend his complaint. Amendment to conform to
evidence takes place by operation of law.
Q: Distinguish an amended pleading from a supplemental
pleading.
A:
Amended Pleading

Supplemental Pleading

Refer to the facts existing at


the time of filing of original
pleading

Refers to facts occurring


after the filing of the
original pleading.

Supersedes the original,


causes of action may be
changed

Merely supplements the


original pleading.

May be amended without


leave of court before a
responsive pleading is filed.

Always with leave of court

Amendment must be
appropriately marked.

There is no such
requirement in supplemental
pleadings (Herrera, Vol. I,
p. 854, 2007 ed.)

Q: What is the effect of an amended pleading?


An amended pleading supersedes the pleading it amends.
However, admissions in the superseded pleading can still be
received in evidence against the pleader. Claims or defenses
alleged therein but not incorporated or reiterated in the
amended pleading are deemed waived.
Q: An amended pleading takes the place of the original
pleading. Will the court discard the original pleading?
No, the court will retain the pleading for court record
purposes. Admissions made in superseded pleadings are
considered extra-judicial admissions. They can be rebutted.
Admissions made in the original pleadings are still
admissions, but cannot be considered as judicial admissions.
They are mere extra-judicial admission by the person making
it.

A judicial admission is always conclusive. It cannot be subject


to rebuttal by evidence.
Q: The information submitted by the prosecutor did not
really allege a crime was committed. But the prosecutor
was able to show in court by the evidence presented that
indeed a crime was committed. Can amendment of
pleadings to conform to evidence be allowed in this case?
No, it cannot be allowed. It will violate the constitutional right
of the accused to be informed of the charges against him. We
can apply amendment of pleadings to conform to evidence in a
criminal case so long as the constitutional right of the
defendant is not violated.

DEFAULT
Q: When is a declaration of default proper?
A: If the defending party fails to answer within the time
allowed therefor, the court shall upon motion of the claiming
party with notice to the defending party, and proof of such
failure, declare the defending party in default.
Q: In what situations where declaration of default is
proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive
pleading despite valid service of summons;
2. Defendant filed an answer or responsive pleading but
beyond the reglementary period; and
3. Defendant filed an answer to the court but failed to
serve the plaintiff a copy as required by the Rules.
Q: Will the plaintiff be in default if he fails to file an
answer with respect to the compulsory counterclaim filed
by the defendant?
No. The compulsory counterclaim is an exception to the
general rule that all claim pleadings may lead to default if
unanswered.
Q: How about a cross-claim?
In one case decided in 1999, the SC held that if a cross-claim
is not answered, the cross-plaintiff or cross-claimant can file a
motion to declare the cross-defendant in default. But the SC
said that court may or may not grant the order of default.
Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in
court. The loss of such standing prevents him from
taking part in the trial.
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings. He may, however, still be a witness for his
co-defendants in case of partial default.
3. A declaration of default is not an admission of the truth
or the validity of the plaintiffs claims.
Under Rule 9, if all the defendants are declared in default, the
court is given two choices:
1. To render a judgment of default based on the
complaint (judgment on the pleadings); or
2. To order the complainant to present evidence exparte in support of his allegations and render a
judgment based on that evidence.
Q: If a defendant is in default, does that mean he
automatically loses the case?
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Not necessarily. A declaration of default is not a judicial


admission of the complaint. The court still has to ascertain if
there is any merit or substance with the complaint.
Q: What are the reliefs from an order of default?
A:
1. After notice of order and before judgment The defendant
must file a verified motion to set aside the order of default
upon proper showing that:
a. His failure to answer was due to fraud, accident,
mistake or excusable negligence; and
b. That he has a meritorious defense. (2000 & 1999
Bar Question)
2. After judgment and before judgment becomes final and
executory He may file a motion for new trial under Rule 37.
He may also appeal from the judgment as being contrary to the
evidence or the law.
3. After the judgment becomes final and executory he may
file a petition for relief from judgment under Rule 38 (2006,
1998 Bar Question)
4. Where the defendant has however, been wrongly or
improvidently declared in default, the court can be considered
to have acted with grave abuse of discretion amounting to lack
or excess of jurisdiction and when the lack of jurisdiction is
patent in the face of the judgment or from the judicial records,
he may avail of the special civil action of certiorari under
Rule 65.
Q: What is the effect of partial default?
As a general rule, the court will try the case against all
defendants upon the answer of some.
Exception: Where the defense is personal to the one who
answered, it will not benefit those who did not answer e.g.
forgery. (1995 Bar Question)
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be different
in kind from that prayed for nor award unliquidated damages.
However, if the court orders submission of evidence,
unliquidated damages may be awarded based on such.
Q: When is default not allowed?
There are several instances where declaration of default is
prohibited like mortgage, the rules on summary procedures,
Writ of Amparo, Writ of Habeas Data, marriage related cases,
and in special civil actions like certiorari, prohibition, and
mandamus (since in these last cases a comment and not a reply
is given by the defendant).
It is not correct to say that it is absolute in civil actions that if a
defendant does not file his responsive pleading, he can be
declared in default. What is clear is the general rule: If a
complaint is filed and summons is served upon the defendant,
but the defendant did not file an answer within the
reglementary period given by the Rules, the defendant can be
declared in default upon motion of the plaintiff.
Q: May the court motu proprio declare the defendant in
default?
The court cannot motu propio declare the defendant in default.
Motion must be made by the plaintiff before declaration of
default can be had. Failure to file the motion for declaration of
default by the plaintiff can result to the complaint being

dismissed for failure to prosecute for an unreasonable length


of time under Rule 17. It is a dismissal with prejudice.
Q: If in a case the plaintiff did not move to declare the
defendant in default, may the court set the case for pretrial?
No. Unless all the pleadings are in, the court has no business
setting the case for pre-trial. If the defendant does not wish to
answer and the plaintiff does not wish to declare the defendant
in default, since the court cannot set up the case for pre-trial,
the most the court can do is to dismiss the complaint under
Rule 17 for failure of the plaintiff to prosecute (nolle
prosequi).
Dean Albano: But you should read Soliman v. Fernandez, a
2014 case. The SC held that the court should not dismiss the
case if the plaintiff fails to take further steps to prosecute or
set it for pre-trial because the further steps is not his, but for
the clerk of court, to take. Within five days from date of filing
of the reply, the plaintiff must move ex parte that the case be
set for pre-trial conference. If the plaintiff fails to file said
motion within the given period, the Branch Clerk of Court
shall file a notice of pre-trial.
Q: Suppose plaintiff files a motion for declaration of
defendant in default, but the motion was for that of an exparte motion to declare defendant in default. The
reasoning is that since the defendant had not bothered to
file an answer, there is no use of serving notice to the
defendant. This is for the plaintiff to prevent the defendant
from entertaining the idea that he must file an answer to
prevent being declared in default. Is plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to declare
defendant in default should be served upon the defendant. If
such copy is not served upon the defendant, that motion will
not be acted upon by the court.
Q: What if the defendant filed an answer after receiving a
copy of the motion to declare him in default, can the court
still declare him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of
policy, an answer filed out of time will not result in the
defendant in being declared in default. SC held repeatedly that
as much as possible the technical aspects of default should not
be applied strictly in the interest of furtherance of justice.
Even if the period to answer has already expired, but an
answer is filed out of time, the courts will still admit that
answer and deny the motion to declare the defendant in
default.
The reason why SC adopted this policy is because at present,
under Rule 9, if defendant is declared in default, the court can
right away render a judgment in default against defendant
without conducting a trial. Under Rule 9, the court is given 2
choices: Render a judgment of default based on the complaint
(judgment on the pleadings), or to order the complainant to
present evidence ex-parte in support of his allegations. At least
in the second option, there can be presentation of evidence,
unlike in the first option where only the pleadings will be the
basis of the judgment. And if there is a trial ex-parte on default
ordered by the court, the defendant will not be allowed to
participate in the proceedings, unless he is able to secure an
order to lift the default.
Rule 9 is very explicit in stating that the award in default
judgments cannot be greater than that prayed for in the

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complaint, even if there is an ex-parte presentation of evidence


showing evidence thereto.
Default Under Rule 18 Pre-Trial
Under Rule 18, if the plaintiff does not appear during the pretrial or failed to submit pre-trial brief, his complaint will be
dismissed and the dismissal is with prejudice.

No, the court cannot do that. In case of several defendants, of


whom some have filed an answer, the most that the court can
do is to declare the non-answering defendants in default. The
court cannot declare the answering defendants in default as
there is no reason to do that. Insofar as the non-answering
defendant is concerned, they shall be declared in default but
there could be a separate judgment that will be rendered.

On the other hand, if the defendant does not appear during


pre-trial or did not submit his pre-trial brief on time, the court
will allow to the plaintiff to present his evidence ex parte and
the court will render a judgment based thereon.

Q: Can the answering defendant call the defendants in


default as witnesses?
Yes. Defendants declared in default can be witnesses,
although he will not be allowed to participate as a litigant.

Although Rule 9 and Rule 18 both contains ex parte


presentation of evidence, there are vital differences between
the two.

Q: If the court finds for the answering defendant, will that


decision also affect the defendants declared in default?
Yes. Whatever happens to the case, the defendants in default
shall be subject to the decisions rendered. Thus, if the
answering defendant wins, the decision shall also be in favor
of the defendants in default. This is one situation where a
defaulting defendant can prevail in the case. The reason is that
the non-answering defendants are sued under a common cause
of action with answering defendants.

Comparison between Rule 9 and Rule 18 Default


Rule 9

Rule 18

In Rule 9, defendant shall be


declared in default for not
filing an answer.

Under Rule 18, a plaintiff


shall be declared in default
for not appearing during
pre-trial or failure to submit
a pre-trial brief, while a
defendant shall be declared
in default for not appearing
or submitting a pre-trial
brief on time.

The court cannot grant a


relief more than that alleged
in the complaint.

The court can grant a relief


more than that alleged,
based on what the plaintiff
can prove based on his
evidence presented.

In Rule 9, the defendant in


default has not filed an
answer at all. The court is
considered to have been
taking pity on a defendant
who had surrendered.

In Rule 18, the defendant


already filed an answered.
The defendants failure to
comply with attending a
pre-trial conference or file a
pre-trial brief is meted with
severe sanction. Also, the
fact that the court gives the
plaintiff the opportunity to
present his evidence, what
the plaintiff proves on
evidence shall be the basis
of the judgment of the
court.

Q: During ex parte presentation during pre-trial, the


plaintiff was able to prove damages of 2M. However, the
complaint alleges only 1M. The court awarded 2M. Is the
court correct? Why?
Yes, the court is correct. This is because the defendant has
failed to comply with a court order to either appear in pre-trial
or to submit a pre-trial brief, and thus the court can sanction
defendant at default. Also, since the court allows the plaintiff,
as provided under Rule 18, to present evidence to prove his
allegations, what the plaintiff was able to prove shall be the
basis of the courts judgment.
Partial Default
There is partial default when one of several defendants, sued
under a common cause of action, is declared in default, while
the others can still participate in the case.
Q: Can there be a judgment in default against the nonanswering defendants?

Q: The creditor sued two defendants where one answered


and the other failed to answer. The one debtor who failed
to answer was declared in default. The plaintiff wisely
moved for the dismissal of the complaint against the
answering defendant. The answering defendant did not
object to the dismissal. The case caption was then changed
to plaintiff versus the defendant in default. Can the court
now ask for presentation of evidence ex-parte?
SC held that it is not necessary. Even if the answering
defendant has been dropped from the case upon the initiative
of the plaintiff, what the trial should examine is whether or not
the answering defendant is an indispensable party to the case.
If answering defendant is an indispensable party, then the
court should require the inclusion of such party. What the
court should do is to order the plaintiff to amend his pleadings
and include the indispensable party. Failure to do so will be
dismissal of the complaint with prejudice under Rule 17. This
is because if answering defendant is an indispensable party but
he is not around, the proceedings of the court could be void, it
would be useless for the court to try the case. And under the
new doctrines enunciated by the SC, if an indispensable party
has not been included or has been dropped from the case, the
court should compel the indispensable party to be impleaded
via an amendment to the complaint. Failure of plaintiff to do
so will allow the court to dismiss the case with prejudice under
Rule 17 for refusal to obey a lawful court order.
Q: Since it is disadvantageous for a non-answering
defendant to be declared in default, what are the remedies
given by law to the defaulting defendant?
The defendant should file a motion to lift the order of default
at any time before judgment. The motion must be filed with an
affidavit of merit along with his proposed answer, alleging
the reasons of why he defaulted and alleging that he has a
good defense as stated in the proposed answer.
An affidavit of merit is required since he has to substantiate
that he was in default because of FAME. He must also his
attach his answer since he has to show that he has a
meritorious defense. These are the two requirements for a
proper motion to lift the order of default.
If the motion to lift the order of default is denied, it is
inappealable, being an interlocutory decision. Although Rule

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65 can be had, i.e., certiorari, the appellant must show that the
court acted with lack or in excess of jurisdiction
If the court has already rendered judgment by default (after
motion to life order of default has been denied), the defendant
can appeal. A judgment by default is adjudication on the
merits, hence appealable. Since appeal is available, Rule 65 is
not available. Rule 65 is only available if there is no remedy
under the Rules or under law.
Aside from appeal, the defendant may also file a motion for
new trial or a motion for reconsideration. If the judgment has
become final and executory, he may even file a petition for
relief from judgment.
Q: In summary procedure and small claims proceedings,
may the plaintiff declare the non-answering defendant in
default?
No. A Motion to Dismiss is prohibited in summary procedure
and small claims proceedings. The court will not declare the
defendant in default.
In summary procedure, if the defendant does not answer, the
court shall render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for
therein
In small claims proceedings, if the defendant fails to file his
response AND fails to appear at the date set for hearing, the
court shall render judgment on the same day.
If he fails to file his response but appears at the date set for
hearing, the court shall ascertain what defense he had to offer
as if a Response has been filed.
Q: What is the remedy of the defendant in summary
procedure and small claims proceedings if there is a
judgment by default?
The defendant cannot assail the judgment by default through a
motion for new trial or a motion for reconsideration. These are
prohibited pleadings in summary procedure and small claims
proceedings. The defendant also cannot file a petition for
relief from judgment because that is prohibited as well.
If the case is governed by summary procedure, the defendant
may appeal. It is not prohibited under summary procedure.
If the case, however, is governed by small claims proceedings,
appeal is not available because the decision of the small
claims court is final and executory. It is unappealable. The
aggrieved party, however, may use Rule 65, but only when he
can prove there is lack of jurisdiction or in excess of its
jurisdiction in the part of the court.

counterclaim, cross-claim or third party complaint, there is a


period fixed in the Rules. Of particular is the period for filing
a cross-claim and a compulsory counter-claim. They must be
filed within the period as that for the filing of an answer.
Why? Will it not violate substantive law?
Even if the cross-claim, counter-claim or third-party complaint
are claim pleadings, the rules do not allow the defending party
to file an answer separately from a counterclaim, cross-claim
or a third-party complaint. These pleadings must be included
in his answer. Thus a defendant must file an answer with a
counterclaim, cross-claim or a third-party complaint.
Otherwise, defendant may file a motion for leave to file an
amended answer with cross-claim, counterclaim, etc. With
respect to a third-party complaint, defendant would have to
first file a motion for leave to file a third-party complaint
along with the amended answer, attaching the amended
answer to the motion.
Because of this rule, the filing of a compulsory counterclaim
should be the same as that provided for the filing of an answer.
If there is an answer filed, but the defendant feels he should
file a counterclaim, he will have to file a motion for leave to
file an amended answer with counterclaim (with a copy of the
amended answer attached).
Q: May the court extend the period to file an answer?
It depends.
In an ordinary civil action, yes, but only if the circumstances
warrant. If the case is under summary procedure or small
claims proceedings (in the form of a response), no. A motion
for extension to file pleadings, affidavits, or any other paper is
one of the prohibited motions in summary procedure and small
claims proceedings.
Q: May the court reduce the period to file an answer?
As a general rule, no.
The only exception is in quo warranto proceedings. Under
Rule 66, the court may, if it deems just, fix a period that is
shorter than that provided in the Rules of Court.

BILL OF PARTICULARS
Q: What is a bill of particulars?
Motion for leave to file bill of particulars is proper if there is
inadequacy of the allegations contained in the complaint.

PERIOD TO FILE PLEADINGS

As a rule, under Rule 16, the inadequacy of the allegations in


the complaint is NOT a ground for the filing of a motion to
dismiss the complaint. Unless the inadequacy is in such a way
that there is failure to state a cause of action, the complaint
may not be dismissed by the court.

In the periods for filing of pleadings, there is nothing


mentioned as to the period as to when a complaint should be
filed. Nothing is fixed in the rules. The reason is that the filing
of the complaint is solely dependent upon the whim of the
plaintiff. If SC does fix such period, it will be invading the turf
of substantive law.

Q: What is the difference of a bill of particulars in civil


actions and a bill of particulars in criminal cases?
There is a great difference. In a civil case, the purpose why a
bill of particulars may be availed of by a litigant to enable him
to prepare a responsive pleading. In a criminal case, the
purpose of the accused is to enable him to prepare for trial.

If there is a period fixed as to when that complaint should be


filed, it is determined by substantive law. Prescription of a
cause of action is a matter of substantive law. With respect to

Q: Is a bill of particulars available to all parties?

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Yes. It is available to any party who has the right to file a


responsive pleading. Even a plaintiff may file a bill of
particulars if the answer of the defendant is particularly vague.
Q: Can there be an instance when a trial court may
dismiss a case on ground of inadequacy or vagueness in the
allegations in the complaint?
Yes, by way of exception. The only instance when a defendant
may file motion to dismiss due to vagueness or inadequacy of
the allegations in the complaint, instead of filing motion for
bill of particulars, is when the RTC is sitting as a commercial
court. In this case, where there is indefiniteness or vagueness
in the allegations of the complaint, defendant may file a
motion to dismiss. This is because, in commercial courts, a
motion for bill of particulars is forbidden as outlined in the
circular for commercial courts.
In ordinary civil cases, motion for bill of particulars is
available to both sides. They should be in the form of a
motion.
Q: What is the difference between an ordinary motion and
a motion for a bill of particulars?
While a motion for bill of particulars should comply with the
requisites of a motion, so as not to be deemed as a useless
piece of paper, when the motion is submitted to the court, the
court can act upon the motion right away, without waiting for
the hearing set for the motion, either granting or denying such
motion.
Q: May the defendant file a motion for a bill of particulars
after filing an answer?
No. By its very nature, a motion for a bill of particulars should
be filed by a defendant before submitting an answer, or in case
of a plaintiff, a reply. It is useless if a defendant files a motion
for bill of particulars after he has already filed his answer. It is
understood that if a defendant has filed an answer, it would
mean that he has understood fully the allegations stated in the
complaint.
Q: When may a party avail a bill of particulars?
A: Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter
which is not averred with sufficient definiteness or
particularity to enable him properly to prepare his responsive
pleading. If the pleading is a reply, the motion must be filed
within 10 days from service thereof.
If the motion is granted, in case of a defendant, the court will
order the submission of an amended complaint or a bill of
particulars, which will form part of the allegations contained
in the complaint.
Q: If the plaintiff does not obey the order of the court to
submit a bill of particulars, what is the remedy of the
defendant?
The remedy is either (1) to strike out the parts of the pleading
that are vague; or, the more practical move, (2) the defendant
may move to strike out the entire pleading, wherein the case is
dismissed.
If the defendant disobeyed the court order to amend his
answer or to supply bill of particulars, the situation will be as
if the defendant has not filed an answer at all. The next
recourse of the plaintiff is to file a motion to declare the
defendant in default. This is one instance where the defendant
can be declared in default even though he had filed an answer

on time. Therefore, if the defendant did not amend his answer


or file a bill of particulars, the court can order the striking out
of the answer and thereafter, upon motion, the defendant can
be declared in default.
If it is the plaintiff who disobeyed the court order, the situation
will be as if the plaintiff has not filed a complaint at all. The
defendant in such case may move to dismiss the case for
failure to state a cause of action.
Q: If the motion for a bill of particulars is denied, may the
aggrieved party appeal?
No. The denial of the motion is an interlocutory order. The
aggrieved party, however, may avail of Rule 65 if proper.

FILING
AND
SERVICE
OF
JUDGMENTS, AND OTHER PAPERS

PLEADINGS,

Q: Which comes first filing or service?


As a general rule, service comes before filing.
Complaint is one of the exceptions. You have to file the
complaint first, and then the complaint will be served to the
defendant together with the summons.
A third-party complaint is an exception. Since third-party
complaints require leave of court, it needs to be filed first
before it can be served to the third-party defendant.
Judgments, resolutions, and orders are exceptions as well.
According to the Rules, the judge will first submit a copy or
the original of the decision with the clerk of court. It is the
duty of the clerk of court to serve copies of the judgment or
order upon the adverse parties.
Q: What is the order of priority when it comes to service?
The order of priority merely states that personal service must
always be resorted to. If personal service is not resorted to,
there must be an explanation given by the party why he has
not resorted to personal service. If a motion is filed and the
motion served through registered mail without an explanation,
the court has every reason to consider that motion as a useless
scrap of paper.
Recently this has been relaxed by the court, depending on the
nature of the case or depending on the nature of the motion to
be served or the pleading filed in the court.
But in case of a motion to dismiss, the courts are very strict,
personal service is a must. If it was served by mail, the court
requires submission of proof of actual delivery/receipt by mail
(the registry return card). If such proof is not presented, the
court will not act on the motion to dismiss for failure to
observe the requirements concerning service of this important
motion.
Q: What are the modes of service of these motions,
pleadings, orders and judgments?
The first in priority when it comes to service is personal
service, then service by mail and then substituted service and
service by publication. Its only in unusual, exceptional
circumstances when there is service by publication.
Q: If the defendant has counsel, to whom should the
service be given the defendant himself, or his counsel?

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Service must be made upon the counsel. If service is not made


upon a counsel but upon the party himself, that is not proper
service.
Q: What is substituted service and how does it differ to
substitute service of summons?
If the motion/pleading/other papers cannot be served in person
or by registered mail, the movant should submit the motion
and the pleadings with the clerk of court with proof that
personal and mail service failed. Upon receipt of court,
substituted service is now completed.
Substitute service of summons: This is resorted to when there
is failure on the part of sheriff to serve summons in person
upon the defendant after several attempts and despite diligent
efforts. Sheriff then can serve the summons at the resident of
the defendant upon a person of sufficient age of discretion, or
instead of the residence, at his place of business, upon a
competent person in charge. The reason for resorting to such
substituted service must be explained.
Q: Service by publication is rare when is this resorted
to?
This is resorted to if a party summoned by publication has
failed to appear in the action. Judgments, final orders and
resolution against him should be served upon him also by
publication at the expense of the prevailing party.
Q: Is service by courier (such as LBC) allowed?
Dean Albano: No. Service and filing of pleadings by courier
service is a mode not provided in the Rules.
Service by courier, however, is allowed under ADR rules.

SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the
action brought against him. An important part of that notice is
a direction to the defendant that he must answer the complaint
within a specified period, and that unless he so answers,
plaintiff will take judgment by default and may be granted the
relief applied for.
Q: What are the purposes of summons?
For actions in personam:
a. To acquire jurisdiction over the person of the
defendant; and
b. To give notice to the defendant that an action has
been commenced against him.
For actions in rem and quasi in rem - not to acquire
jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process.
Q: What is the effect of voluntary appearance before the
court?
As a general rule, the defendants voluntary appearance shall
be equivalent to service of summons and the consequent
submission of ones person to the jurisdiction of the court. If
there are defects in the summons, voluntary appearance cures
such defects.
As an exception, if there is a special appearance in court to
challenge its jurisdiction over his person, it shall not be
deemed as a voluntary appearance. This is true even if the

defendant includes in his Motion to Dismiss several other


grounds aside from lack of jurisdiction over his own person.
Q: What are several instances when appearance of
defendant is not tantamount to voluntary submission to
the jurisdiction of the court?
(a) When defendant files the necessary pleading;
(b) When defendant files a motion for reconsideration of
the judgment by default;
(c) When defendant files a petition to set aside the
judgment of default;
(d) When the parties jointly submit a compromise
agreement for approval of the court;
(e) When defendant files an answer to the contempt
charge;
(f) When defendant files a petition for certiorari without
questioning the courts jurisdiction over his person.
Q: Aside from summons and voluntary appearance, is
there any way a court may obtain jurisdiction over a
person?
Yes, but only in limited circumstances. For example, under
Rule 65, in certiorari, prohibition, and mandamus, the court
does not issue a summons. It simply issues an order addressed
to the defending party to file a comment. That is a process
which will confer upon the court, by compulsion, jurisdiction
over the person of the respondents. As a consequence, the
court cannot declare the respondents in default if they failed to
respond.
Q: What is the proper service of summons upon an
unregistered foreign corporation with no resident agent in
the country?
In a 2011 Circular, summons upon a foreign private
corporation can be served in four ways, with leave of court:
1. Personal service of summons upon a foreign private
corporation not doing business in RP, with assistance of
DFA and the court of the country where the foreign
corporations main office is located;
2. Publication of the summons in the country where the
foreign corporation has its office
3. By facsimile message or by any electronic device
authorized by the trial court
4. A combination of any one of the three as authorized by
the court.
Q: What if the foreign corporation is registered or has an
agent in the Philippines?
Service may be made on its resident agent designated in
accordance with law for that purpose, or if there be no such
agent, on the government official designated by law to that
effect, or on any of its officers or agents within the
Philippines.
Q: What if it is a domestic corporation?
With respect to domestic private corporations, service of
summons must be effected as stated in the Villarosa vs. Benito
case. It must be served upon the officers of the corporation
stated specifically in the Rules of Court (President, Managing
Partner, General Manager, Treasurer, Corporate Secretary or
In-House Counsel - PMGCTI).
In the Villarosa case, the branch manager was the one served
with summons, who is not among those officers listed in the
Rules. Thus, the trial court did not acquire jurisdiction over
the corporation. This is still the rule observed.

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Read: Villarosa v. Benito


Q: What if it is a partnership?
What the rules require is that summons must be made upon the
GM or managing partner as the case may be.
If there are four partners in the partnership, service upon any
of the partners will be a valid service of summons. All
partners under the NCC are considered as managing partners.
Since all partners under the NCC are presumed to be
managing partners, service upon anyone will be a valid service
of summons.
It is in the acquisition of jurisdiction over natural persons that
there is conflict in jurisprudence.
Q: What if the defendant is a minor or an incompetent?
Service of summons must not only be served upon the
guardian but also the minor or incompetent.
Q: What is the order of priority in serving summons?
Service in person will always be preferred over substitute
service. And service by publication cannot be held unless the
court is convinced that personal service or substitute service
have been resorted to but it has not been successfully carried
out.
Personal Service
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The service of
summons must be made by service in person on the defendant.
This is effected by handing a copy of the summons to the
defendant in person, or if he refuses to receive it, by tendering
the copy of the summons to him.
Unlike service of pleadings, motions, and other papers in Rule
13, the meaning of personal service in summons is literal:
Summons should be handed to the defendant himself, not his
counsel.
Substituted Service
Q: When is substituted service of summons proper?
A: In our jurisdiction, for substituted service of summons to be
valid, it is necessary to establish the following:
1. The impossibility of service of summons in person
within a reasonable time;
2. The efforts exerted to locate the person to be served;
and
3. Service upon a person of sufficient age and discretion
in the same place as the defendant or some competent
person in charge of his office or regular place of business
Q: Defendant owed money to a corporation. Defendant
lived in a gated subdivision. The sheriff was not allowed
inside the subdivision. What the sheriff did was to leave a
copy of the summons, together with the complaint, with
the guards. Is there valid service of summons?
To be literal, no, there was no valid substituted service of
summons. If the summons and the complaint were left only
with the security guard, it did not comply with leaving at the
place of residence of the defendant with some person of
suitable age and discretion then residing therein. The
guards do not actually reside in the place of residence of the
defendant.

The SC stated that the meaning of sufficient age and discretion


does not mean that the person to be served could be a minor.
This person means that this person should mean a person at
least 18 years of age with a relationship involving confidence
with the defendant. So, if the service of summons was given to
a person who was only a visitor of the defendant, it will not
comply with this requirement.
In 2009, the SC decided a case involving the validity of a
substituted service of summons not in accordance with the
Rules. If substitute service of summons is not in accordance
with Sec. 7 of Rule 14, the service is invalid, the court does
not acquire jurisdiction over the defendant. Any proceedings
taken by the court are invalidated.
Constructive Service
Q: Is leave of court required in constructive service of
summons?
Yes. This service always requires permission of the court.
When it comes to Sections 14, 15 and 16, you should take note
of two cases Citizens Surety v. Herrera and Santos v.
PNOC.
Lets begin with Citizens Surety.
The sheriff stated that summons could not be served
personally or by substituted service. The plaintiff filed an ex
parte motion to issue a summons by publication. The court
granted it. Plaintiff caused the publication of the summons.
After 60 days, there was no responsive pleading. Plaintiff filed
a motion to declare defendant in default. During the hearing of
the motion, plaintiff presented the court the order authorizing
publication and affidavit of the publisher. Plaintiff expected
the court to grant his motion. The court did not grant it, but
instead asked the plaintiff to explain why the complaint should
not be dismissed. The court stated that publication did not
enable the court to acquire jurisdiction over the defendant. The
requirement left out was a constitutional requirement of due
process.
The proper recourse for the creditor is to locate
properties, real or personal, of the resident defendant
debtor with unknown address and cause them to be
attached, in which case, the attachment converts the action
into a proceeding in rem or quasi in rem and the summons
by publication may be valid.
The court interpreted the Rules to mean that if there is
publication of the summons, there should preliminary
attachment over the properties of the defendant. Otherwise,
the court will be unable to acquire jurisdiction over the person
of the defendant. If we are not able to convert the action in
personam to that in rem, the court will not be able to acquire
jurisdiction over the person of the defendant, and therefore,
the court will not have authority at all to entertain the case.
If the court still did not still acquire jurisdiction over the
defendant despite the attachment of the properties of the
defendant (there might be no properties to attach), then the
case will be archived. There will be no dismissal of the case.
The case will not prescribe since the case will be archived and
prescription will not run during this period.
Q: When will the case be converted from an action in
personam to an action in rem?

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The case will convert from an action in personam to that in


rem once there is actual attachment of personal or real
property. A mere motion requesting for preliminary
attachment will not convert the action
In 2008, Santos vs. PNOC was decided, which changed the
principles held under Citizens Surety vs. Herrera.
Personal service of summons were made to the defendant but
failed because the latter cannot be located in his last known
address despite earnest efforts to do so. Subsequently, on
plaintiffs motion, the trial court allowed service of summons
by publication. Plaintiff caused the publication of the
summons in a newspaper of general circulation in the
Philippines.
Petitioner still failed to answer within the prescribed period
despite the publication of summons. Hence, respondent filed a
motion for the reception of its evidence ex parte. Trial court
granted said motion and proceeded with the ex parte
presentation and formal offer of its evidence.
Petitioner filed an Omnibus Motion for Reconsideration and to
Admit Attached Answer, alleging that the affidavit of service
submitted by respondent failed to comply with Section 19,
Rule 14 of the Rules of Court as it was not executed by the
clerk of court. Trial court denied the said motion and held that
the rules did not require such execution with the clerk of court.
It also denied the motion to admit petitioners answer because
the same was filed way beyond the reglementary period.
The Supreme Court held that:
(1) Section 14, Rule 14 provides that in any action
where the defendant is designated as an unknown
owner or the like or when his whereabouts are
unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected
upon him by publication in a newspaper of
general circulation and in such places and for
such times as the court may order. Since petitioner
could not be personally served with summons despite
diligent efforts to locate his whereabouts, respondent
sought and was granted leave of court to effect the
service of summons upon him by publication in a
newspaper of general circulation. Thus, petitioner
was proper served with summons by publication and
that there is jurisdiction over his person.
(2) The in rem/in personam distinction was
significant under the old rule because it was silent as
to the kind of action to which the rule was applicable
but this has been changed, it now applies to any
action. The present rule expressly states that it applies
in any action where the defendant is designated as
an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained
by diligent inquiry. Hence, the petitioners
contention that the complaint filed against him is not
covered by said rule because the action for recovery
of sum of money is an action in personam is now not
applicable.
(3) The service of summons by publication is
complemented by service of summons by registered
mail to defendants last known address. This
complementary service is evidenced by an affidavit
showing the deposit of a copy of the summons and

order for publication in the post office, postage for


prepaid, directed to the defendant by registered mail
to his last known address. The rules, however, do
not require that the affidavit of complementary
service be executed by the clerk of court. While the
trial court ordinarily does the mailing of copies of its
orders and processes, the duty to make the
complementary service by registered mail is imposed
on the party who resorts to service by publication.
Since 2008, the lawyers have made use of Santos vs. PNOC as
the authority to convince a trial court that there is no need for
a publication of summons for the issuance of a writ of
preliminary attachment before the court could acquire
jurisdiction over the person of the defendant.
In 2010, SC resolved another case, Palma vs. Galvez. In the
case of Palma vs. Galvez, the SC held that we should literally
apply what the Rules provides, particularly Section 16 of Rule
14. If you read Section 16, the defendant is a resident of RP
temporarily out of the country. In relation to Section 14, if the
whereabouts of the defendant is unknown, there could be
publication of summons, and that would enable the court to
acquire jurisdiction over the person of the defendant.
It would seem that the principle adhered to for a long time
since Citizens Surety vs. Herrera is no longer binding. They
can ignore the requirement of prior attachment of properties of
the defendant before availing of a publication of summons to
enable a court to acquire jurisdiction over the person of the
defendant. Read over Sections 14, 15 and 16, correlating them
with the cases of Santos vs. PNOC and Palma vs. Sanchez.
There is really no need for an action in personam to be
converted to an action in rem or quasi in rem, via a writ of
preliminary attachment, in order for a court to be able to
acquire jurisdiction over the person of the defendant.
Q: What is the advantage of using these principles in
Citizens Surety vs. Herrera?
The advantage is that if the plaintiff first moves for
preliminary attachment over properties of the defendant and
then later ask the court for publication of summons, when
compared to just the plaintiff asking for publication of
summons without asking for preliminary attachment, is that
there is a security enjoyed by the plaintiff when the
property of the defendant is attached through a writ
preliminary attachment. If you read Rule 57, that is precisely
the purpose of preliminary attachment over the property of the
defendant, to provide security to the applicant to whatever
judgment rendered in favor of the plaintiff.
If there is a preliminary attachment of a property belonging to
the defendant, the act of actual attachment of the property is
the act which converts the case from in personam to that of in
rem or quasi-in rem. This is because the property is now
within the jurisdiction of the trial court.

MOTIONS
Q: What is a motion?
A: It is an application for relief other than by a pleading.
Q: In what form should a motion be?
As a general rule, if it is not made in open court, the motion
must be reduced into writing. It must satisfy all the
requirements in the Rules concerning motions.
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Q: What are the requirements for a proper motion?


A written motion has two basic requirements:
1. It must be served upon the adverse party; and
2. It must be set for hearing
Q: What is the rule on hearing of motions?
General Rule: Every written motion shall be set for hearing
by the applicant.
Exception: A motion which the court may act upon without
prejudicing the rights of the adverse party.
Q: What shall the notice of hearing specify?
A: It shall specify the time and date of the hearing which shall
not be later than ten (10) days after the filing of the motion
and it shall be addressed to the parties concerned.
Notice of Hearing is usually addressed by lawyers to the
branch clerk of court. This is an error. The notice of hearing
MUST be addressed to the adverse party or the counsel
thereof. Remember that the SC has emphasized that a motion
that does not comply with the requirements set down in the
Rules shall be treated as a scrap of paper.
Note: Failure to comply with the mandatory requirements of
the rule regarding notice of hearing is pro forma and presents
no question which merits the attention of the court.
Q: There are nine pleadings. How many motions are
there?
None. It is not possible for the Supreme Court to enumerate all
the possible motions because a motion will depend almost
completely upon the creativity of the lawyer. If a lawyer
cannot ask for a relief in a pleading, he can always do so in a
motion. And it is up to him to give the name of that motion.
Q: May a motion be filed in appeal?
Yes. Unlike a pleading, a motion may be filed during appeal.
Personal Opinion: The pleadings related to intervention, such
as a complaint-in-intervention or answer-in-intervention, may
be filed on appeal during very exceptional circumstances.
Moreover, there is a difference between a motion filed before
the trial court compared to motions filed before the appellate
courts. A motion filed before the Court of Appeals or Supreme
Court does not have to contain a notice of hearing because the
Court of Appeals or Supreme Court doesnt have what we call
as a motion day.

MOTION TO DISMISS
Motion to dismiss is prohibited in certain proceedings, as set
down by the Rules or based on circulars issued by the SC.
As a general rule, summary procedure, small claims
proceedings, and some special proceedings prohibit the filing
of a motion to dismiss. But under ordinary procedure, a
motion to dismiss is allowed in civil cases. A Motion to
Dismiss under Rule 16 should be filed as a matter of general
practice before an answer can be filed by defendant.
Q: Can the defendant properly file an answer and a
motion to dismiss at the same time?

Under Rule 16, it is allowed that the grounds for a motion to


dismiss to be simply incorporated in the answer. Under Rule
16, if the defendant does submit his responsive pleading right
away, he can incorporate in his answer the grounds in Rule as
affirmative defenses. If a defendant files his answer with
affirmative defenses enumerated under Rule 16 as grounds to
dismiss, he being allowed to do that, once the answer is filed
with the court, the defendant can ask to court to conduct a
preliminary hearing on his affirmative defenses. The court
can grant it as if the defendant has filed previously a motion to
dismiss.
Q: May the defendant file a Motion to Dismiss one after
another?
As a general rule, no. It will violate the Omnibus Motion
Rule. All the defenses known to the defendant must be entered
in one Motion to Dismiss or else it is deemed waived.
However, if the defenses are those that are non-waivable
grounds for dismissal under Rule 9, Section 1, it is possible for
the defendant to file motions to dismiss one after another
without violation of the Omnibus Motion Rule.
Theoretically:
If the first motion to dismiss based on prescription is denied,
the defendant is allowed to file a second motion to dismiss
based on litis pendencia. If that is again denied, the defendant
files his third motion to dismiss founded on lack of
jurisdiction over the person of the defendant. If it is again
denied, the defendant can file a motion to dismiss based on res
judicata.
A motion to dismiss founded on a waivable defense shall
preclude the filing of another motion to dismiss based on other
grounds under Rule 16, except those non-waivable defenses.
There will be waiver of the other grounds because of the
Omnibus Motion Rule, but not those defenses which are nonwaivable. Thus, if the defendant filed a motion to dismiss
solely on the ground of lack of jurisdiction over the person of
the defendant, which is a waivable defense, and the motion
was denied, the defendant is precluded from filing a motion to
dismiss based on the ground of improper venue. What will be
allowed would be the succeeding motions to dismiss are
grounded on non-waivable defenses.
Q: May the plaintiff file a Motion to Dismiss?
No. Rule 16 is designed to be used by the defending party. If
the plaintiff wishes to dismiss his own complaint, he should
make use of Rule 17, not Rule 16.
Q: May the court make use of a Motion to Dismiss?
It is not so much a Motion, but the court may dismiss the case
using the four non-waivable grounds under Rule 9, Section 1.
These four grounds are also included in Rule 16.
Q: What is the duty of the court if there is a Motion to
Dismiss?
In the resolution of a motion to dismiss, Rule 16 gives to the
court three choices: grant the motion, deny the motion, or
order an amendment to the pleading.
Aside from these three, there is a fourth option by virtue of
the law on alternative disputes resolution. The court may refer
the matter to conciliation or mediation or arbitration, as the
case may be, and suspend further hearings.

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Furthermore, the court is mandated to explain the reasons


which support the resolution of the court. In other motions, the
court can simply say, The motion is granted because it is
meritorious or even, Finding no merit, the motion is denied.
But when it comes to a motion to dismiss, whether the court
grants or denies the motion or orders an amendment to the
pleading, the court must give reasons and explain the basis of
its resolution.
The evidence submitted during the hearing for a Motion to
Dismiss and everything that comes during the motion to
dismiss are deemed reproduced during the trial of the case.
There is no more need for a repetition of trial with reference to
the issues already tackled during hearing for a motion to
dismiss.
Q: Is there any procedural advantage if the defendant
simply files an answer setting up as affirmative defenses
those enumerated in Rule 16?
Yes. If the defendant files an answer with affirmative defenses
based on grounds under Rule 16, and after preliminary hearing
of the affirmative defenses the court orders the dismissal of
the case, the defendant will be given an opportunity to recover
his claim for damages based on any counterclaims
(compulsory or permissive) or whatever relief he may have
sought in his answer (answer with affirmative defenses,
permissive and compulsory counterclaims, and other relief).
You will note that in Rule 16, Section 6, the dismissal of the
action will not affect any counterclaim or cross-claim or any
other claim submitted by the defendant in his answer. The
defendant cannot file a Motion to Dismiss with a counterclaim
or cross-claim or any other claim before the court. A Motion
to Dismiss is not a pleading. It is in an answer where we can
have a cross-claim against a co-defendant or counterclaim
against the plaintiff.
First Ground: Lack of Jurisdiction over the Subject
Matter
The source of jurisdiction over the subject matter cannot be
found in the Rules of Court. It is generally found in BP 129.
The general law on jurisdiction, however, must always give
way to a special statute or a special legislation. BP 129 is not
the only source of jurisdiction.
Estoppel by Laches
With respect to lack of jurisdiction over the subject matter or
over the nature of the case, this ground is dealt with in Tijam
vs. Sibonghanoy.
In this case, the trial court did not have jurisdiction over the
subject matter of the case, but the defendant kept silent about
the issue of absence of jurisdiction and allowed the case to
proceed up to the CA. Upon receipt of the adverse decision in
the CA, the appellee challenged the validity of the decision of
the RTC and the CA, stating that the court lacked jurisdiction
from the start.
SC held that there was estoppel by laches. The case has been
pending for 15 years up to the appeal, the defendant appearing
in the case for all those years. SC said that although the
decision may be challenged by lack of jurisdiction over the
subject matter even for the first time on appeal, the defendant
is guilty of estoppel by laches, by his negligence to raise this
issue as promptly as possible. He can no longer challenge the
decision of the court.

The Tijam Doctrine is incorporated in Rule 47, Section 2


before it is barred by laches or estoppel. Estoppel by laches
may be a defense against lack of jurisdiction over the subject
matter.
Estoppel in Pais
In other cases, the SC also used another kind of estoppel in
order to bar the party from raising the issue of jurisdiction,
although the trial court really did not have jurisdiction over the
subject matter. Take a look at Soliven v. Fast Forms.
The aggregate sum to be recovered was P800K. A complaint
for collection of money was filed in the RTC. The amount to
be actually collected was less than the jurisdictional amount of
the RTC based on BP 129 (the P800K includes IDALEC,
hence the confusion).
There was an answer by defendant with a counterclaim. The
court, unaware it lacked jurisdiction over the case, as nobody
brought it up. rendered a judgment in favor of the plaintiff.
The counsel for the defendant found that the court had no
jurisdiction. The defendant filed a motion for reconsideration
and raised lack of jurisdiction, praying for dismissal of the
case. RTC denied the motion, as the defendant was now in
estoppel to challenge the courts jurisdiction just because an
adverse result was had.
The Supreme Court held that the defendant cannot
challenge any more the jurisdiction of the court. SC stated
that estoppel in pais has set in. While jurisdiction may be
assailed at any stage, a litigants participation in all stages of
the case before the trial court, including the invocation of its
authority in asking for affirmative relief, bars such party from
challenging the courts jurisdiction. A party cannot invoke
the jurisdiction of a court to secure affirmative relief
against his opponent and after obtaining or failing to
obtain such relief, repudiate or question that same
jurisdiction. The Court frowns upon the undesirable practice
of a party participating in the proceedings and submitting his
case for decision and then accepting judgment, only if
favorable, and attacking it for lack of jurisdiction, when
adverse.
Q: Is the Soliven case applicable to criminal cases?
No. If it is a criminal case, we need to look at Figueroa v.
People.
The accused was arraigned for reckless imprudence resulting
to homicide. This was filed in the RTC instead of MTC. The
prosecutor was unaware of RTCs lack of jurisdiction and the
counsel for the accused assumed the same. Nobody raised the
issue of jurisdiction in the RTC, so the case went on. A trial
was had. Both parties presented their respective evidence. The
accused was eventually found guilty. On appeal, the accused
interposed the defense of lack of jurisdiction. The Solicitor
General cited Soliven vs. Fast Forms as defense. Active
participation means that the litigant is in estoppel from
challenging the validity of the proceedings. The CA agreed
with the Solicitor General.
The Supreme Court held that the judgment is void as estoppel
in pais is inapplicable in a criminal case. Lack of jurisdiction
in a criminal case can be cited as a defense even on appeal.
The rights of the accused being at stake, estoppel in pais is
inapplicable.

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Thus, if you are confronted with a problem on lack of


jurisdiction in a civil case, apply Soliven. If it is a criminal
case, adopt Figueroa.
Read: Soliven v. Fast Forms, Figueroa v. People, NAPOCOR
v. Province of Quezon
In a hearing of a motion to dismiss grounded to lack of
jurisdiction over the subject matter, the court will not
allow presentation of evidence by the defendant. The reason
is because lack of jurisdiction over the subject matter is a
purely legal question and the only evidence to be taken into
account is the complaint itself, applying the principle that the
court acquires jurisdiction, under BP 129, based on the
allegations contained in the complaint.
In the hearing of a motion, the court will only allow
presentation of evidence if the question that will be raised is a
factual issue like the obligation has been paid, waived or
otherwise extinguished. Thus, in a motion to dismiss on the
ground of lack of jurisdiction over the subject matter, the court
will resolve the motion based on the complaint itself. The
court can easily resolve the said motion based on the
allegations in the pleading itself.
Second Ground: Lack of Jurisdiction over the Defendant
Q: The defendant has a problem when a court issues a
service of summons in violation of Rule 14. The defendant
must file a Motion to Dismiss on ground of lack of
jurisdiction over person of the defendant. If he does file
such motion, does not the defendant admit that the court
has jurisdiction over his person?
No. The filing of a motion to dismiss on that ground is the
only remedy available to him in order to tell the court that the
court had not acquired jurisdiction over his person. In court
cases, what the defendant can do is to tell that court right away
that his appearance before the court in filing the motion to
dismiss should be considered as a special appearance only for
the purpose of telling the court that the court has no
jurisdiction over his person.
This Special Appearance Rule stems from another principle
in the past that when a defendant files a motion to dismiss on
the ground that the court has not acquired any jurisdiction over
his person, when he adds another ground found in Rule 16, the
SC then held that when another ground is added in the motion
to dismiss aside from lack of jurisdiction over the person of
the defendant, he waives the ground of lack of jurisdiction
over his person. This has been changed in the present Rules.
Under the Omnibus Motion Rule, the defendant who files a
motion to dismiss on the ground of lack of jurisdiction over
his person plus any other ground in Rule 16 does not anymore
waive the ground of lack of jurisdiction over his person.
Let us say the defendant who claims that the court has not
acquired jurisdiction over his person does not respond to the
summons, as filing of an answer is a waiver of his defense of
lack of jurisdiction over his person. He received a copy of the
order of the court, and then following the Rules, the defaulting
defendant files a motion to lift the order of default. The filing
of a motion to lift the order of default is acceptance by the
defendant of jurisdiction of the court over his person.
In another instance, the defendant receives the copy of the
judgment of default and the defendant files a motion for
reconsideration and a motion for new trial. The motion for

reconsideration or new trial is a submission of the defendant to


the jurisdiction of the court over his person. This is the reason
why in Palma vs. Galvez, the defendant claims that the court
did not acquire jurisdiction over his person, and when he filed
a motion for new trial, he must qualify the motion must not be
treated as a voluntary submission to the jurisdiction of the
court over his person. He must always qualify his motion with
that ground.
Third Ground: Improper Venue
This has already been taken up in Rule 4.
Fourth Ground: Lack of Capacity to Sue on the Part of
Plaintiff
Q: Suppose it is the defendant who lacks the capacity to be
sued, may he still dismiss the case?
Yes, but not under this ground but under another ground, i.e.,
failure to state a cause of action.
Fifth Ground: Litis Pendencia
Q: When is there litis pendencia?
To answer this question, we need to take a look at Hongkong
and Shanghai Bank v. Aldecoa.
A property was mortgaged to the bank. The mortgagor filed a
case against the bank for the annulment of the mortgage.
During the pendency of that case, the debt became due and the
mortgagor failed to pay the obligation. The bank filed a
complaint for the foreclosure of the same mortgage. The
mortgagor upon receipt of the summons issued in the second
case filed a motion to dismiss founded on litis pendencia.
The Supreme Court held that in litis pendencia, the essential
requisite is that the outcome of anyone of the cases will be res
judicata as to the other cases, regardless of who is going to
prevail in anyone of these cases.
If we are going to use that standard, the argument of the
mortgagor is correct only partially. There are two possibilities.
First, the mortgage will be annulled. In this scenario there
really will be res judicata over the second case. The
mortgagor, however, did not account for the 2nd scenario
the mortgage will be held valid. In this instance there will be
no res judicata over the second case. In this scenario the bank
has all the right to foreclose the mortgage.
There is therefore no litis pendencia between a case asking
annulment of a contract and a case enforcing that contract.
Notice of Lis Pendens
Q: Is there a difference between litis pendencia and a
notice of lis pendens?
Yes. Notice of lis pendens is a constructive notice in real
actions. The notice operates when the case involves title to or
possession of real property (i.e., real action) and one of the
litigants requests the register of deeds to annotate at the back
of the title of the property involved the fact that there is a
pending action between the plaintiff and the defendant
involving that property.
Q: Does the interested party need permission from the
court before he can register a notice of lis pendens?
No. The Register of Deeds has the ministerial duty to record a
notice of lis pendens. The Register of Deeds cannot require the
applicant to produce permission from the court.

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This is the reason why it is called a notice of lis pendens. A


notice of lis pendens does not require to be put in a motion or
a pleading.
Q: What is the purpose of a notice of lis pendens? Will it
prevent the registered owner from disposing of the
property?
A notice of lis pendens is only a notice to the whole world that
there is a pending action between the plaintiff and the
defendant. The registered owner of the property will not be
prevented, he will not be precluded from disposing of the
property. The notice of lis pendens will not be considered as
an obstacle to the conveyance of the property involved in the
litigation.
Q: Does cancellation of a notice of lis pendens require
permission from the court?
Yes. Although the party wishing to register a notice of lis
pendens does not have to obtain permission from the court,
cancellation of the same is a different matter. There should be
an order from the court to carry out the cancellation.
Dean Albano: The cancellation of the annotation of an
encumbrance cannot be ordered without giving notice to the
parties annotated in the certificate of title itself.
Also, notice of lis pendens is not effective if the action is a
personal action like sum of money (citing Gagoomal v. Sps.
Villacort).
Sixth Ground: Failure to State a Cause of Action
The Supreme Court in recent cases emphasize the difference
of lack of a cause of action and failure to state a cause of
action:
Failure to state cause of
action

Lack of cause of action

Insufficiency in the
allegations of the complaint

Failure to prove or establish


by evidence ones stated
cause of action

As a ground for dismissal


Raised in a motion to
dismiss under Rule 16
before a responsive pleading
is filed

Raised in a demurrer to
evidence under Rule 33
after the plaintiff has rested
his case

Determination
Determined only from the
allegations of the pleading
and not from evidentiary
matters

Resolved only on the basis


of the evidence he has
presented in support of his
claim

Failure to state a cause of action will be a ground to dismiss


because of immaturity of action. It assumes that the plaintiff
really has a cause of action, and the fault is due the lawyer
who crafted the complaint.
Q: There is an accion reinvindicatoria filed in the RTC, but
there is no stated assessed value of the property. The
defendant filed a motion to dismiss for lack of jurisdiction
for failure to state a cause of action. A hearing was had.
The plaintiffs attorney failed to see what the motion was
about. The court granted the motion. The plaintiffs
lawyer received the order of dismissal, and then he finally
understood what was wrong with his complaint. Can the
lawyer for the plaintiff amend his complaint?

Yes. The plaintiff or his counsel can still amend his complaint
to incorporate in the allegation the assessed value of the
property. This is because the order of dismissal will not be
entered until after the lapse of 15 days, and the plaintiff can
still amend and rectify the error committed by inserting the
assessed value of the property. He can do so as a matter of
right, because, according to SC, a motion to dismiss is not a
responsive pleading, and as long as the amendment is the first
amendment, under Rule 10, it is an amendment is a matter of
right. The defendant will have to file an answer to the
amended complaint.
:Q: Based on the above problem, if the dismissal became
final and executory, what can the plaintiff do?
Under Sec. 5 Rule 16, the rule makes a distinction between an
Order of Dismissal under Rule 16, letters (f), (h) and (i) - in
addition to laches under the NCC and an order under other
grounds. If it is the former, the dismissal is subject to the right
of appeal. The remedy of the plaintiff is to appeal the order of
dismissal.
If the case was dismissed on other grounds not letters (f), (h)
and (i), it means we should not treat Rule 16 alone. We must
look at other Rules to arrive at the correct remedy. We consult
Sec. 1 under Rule 41. Since the dismissal is without prejudice,
the dismissal should not be appealed.
Q: What are grounds under letters (f), (h), and (i)?
(f) That the cause of action is barred by a prior judgment
or by the statute of limitations;
(h) That the claim or demand set forth in the plaintiffs
pleading has been paid, waived, abandoned, or otherwise
extinguished; and
(i) That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds.
Q: Why is it necessary to relate a motion to dismiss under
Rule 16 with Rule 41, which is a rule on appeal?
If you read Section 1 of Rule 41, there is an enumeration of
orders where no appeal can be had, although they are final in
character.
In the enumeration under Section 1 of Rule 41, the last item is
closely related to Rule 16, that it is a dismissal is without
prejudice. In Rule 16, what the Rule tells us is that under items
f, h and i of Sec. 5 Rule 16 are subject to appeal. That means
the dismissal is with prejudice as the remedy thereof is to
appeal.
But when the dismissal on other grounds other than items f, h
and i under Section 5, Rule 16, they are without prejudice.
And Section 1(h), Rule 41 tells the plaintiff that one of the
recourses available to him when the dismissal is without
prejudice. Appeal is not a remedy available to him. Since the
order is not appealable, the plaintiff must file an appropriate
petition under Rule 65. The plaintiff may file a petition for
certiorari or prohibition with the CA or SC as the case may be.
Q: Why do we allow the plaintiff to file a petition under
Rule 65 challenging the dismissal of his complaint for lack
of jurisdiction, although the order of dismissal has already
been entered after the lapse of 15 day period?
Because under Rule 65, the period for filing the petition under
this rule is 60 days, not 15 days. So if the 15-day period for
entry of judgment has lapsed, the plaintiff has 45 days more to
file a petition under Rule 65.

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But because the dismissal is without prejudice, the plaintiff


can forget about going to a higher court. If the dismissal of his
complaint was without prejudice, he has another alternative:
He can just file a new complaint in the same court involving
the same party with the complaint impleading the necessary
allegations.
If we compare this dismissal under Rule 16 based on lack of
jurisdiction on the ground of f, h and i, we can understand why
they are not appealable. The order of dismissal based on these
items will be a judgment on the merits. If the claim of the
plaintiff alleged in the complaint has really been paid, waived,
abandoned or otherwise extinguished as provided in the NCC,
then it would seem that he really has no claim at all with the
defendant, and thus the complaint is dismissed with prejudice.
If the allegation of the defendant is that the claim has been
paid, waived, abandoned or otherwise extinguished, that
motion presents a factual issue. During the hearing of that
motion, the defendant will be given an opportunity to prove
that the claim has really been paid, waived, abandoned or
otherwise extinguished. The hearing will be as if the court was
actually trying the case, the defendant being allowed to
present witnesses, or present evidence of his allegation that the
claim has been paid, waived, abandoned or otherwise
extinguished based on grounds recognized under substantive
law.
The court said that the results enumerated under Section 16
are not exclusive. We should include laches. Under the NCC,
laches could extinguish an obligation.

Yes. Under Section 1, Rule 41, the aggrieved party may file an
appropriate special civil action as provided in Rule 65.
Q: The defendant files an answer after his Motion to
Dismiss was denied. Can he incorporate the ground in the
motion to dismiss that was denied as an affirmative
defense?
Yes, the defendant is allowed to do that. Under our rules, if
there are objections or grounds not raised in the pleadings,
these grounds are deemed waived.
Q: Using the above scenario - Can the defendant, after
filing his answer with his affirmative defense move for a
preliminary hearing on his affirmative defense?
No, the court will not allow such a hearing anymore as there
had been a prior hearing for the same issue in the prior motion
to dismiss that was denied. Thus, although a defendant is all
owed to use his ground under Rule 16 in a motion to dismiss
that was denied as an affirmative defense, he is not allowed to
have another preliminary hearing as the said defenses had
been already subject to a hearing when the said defenses were
contained as a ground for dismissal in the prior motion that
was denied.
So, during the trial of the case, the defendant may be able to
present to the court additional evidence in order to prove such
ground under Rule 16 that he has relied upon.
Seventh Ground: Res Judicata, Prescription
Eight Ground: Extinguished Claim

Remember that, procedurally, the court will not allow


presentation of evidence in a hearing for a motion to dismiss
entirely based on a legal issue. The court will simply read the
allegations in the complaint. If the issue is factual, the court
will be forced to conduct a hearing for presentation of
evidence therein.
Q: Supposing the plaintiff commits an error in
ascertaining the dismissal. The dismissal was actually with
prejudice. Although the judgment already became final
after 15 days, the plaintiff, 40 days after the judgment for
dismissal was made, files a petition for certiorari. The
petition for certiorari was dismissed by the higher court as
the proper remedy was to appeal. May the plaintiff still
appeal once the petition for certiorari was denied?
At this time, he cannot appeal anymore as the time to appeal
was 15 days from receipt of the order of dismissal. It has long
expired, and the judgment has been entered and had become
final. Also, he cannot file another complaint, as the dismissal
is with prejudice.
Q: Let us say that the defendants motion is founded on
letter h. During the hearing, the defendant presents
evidence. Then, the motion was submitted for resolution.
The court denies the motion. What is the next move for the
defendant if the motion is denied?
The defendant should file an answer during the remaining
period to file, which should not be less than 5 days from the
receipt of the order of denial.
Q: May the defendant appeal the denial of his Motion to
Dismiss?
No. The denial of a Motion to Dismiss is an interlocutory
order and under Rule 41 is not subject to appeal.

Ninth Ground: Unenforceable Contract


The Statute of Frauds only applies to executory contracts. A
partially or totally executed contract may be enforced in court
even if it be oral in form.
Tenth Ground: Condition Precedent
Take note of our discussion on condition precedents such as
prior barangay conciliation, an arbitration clause, certificate of
non-forum shopping, among others.

DISMISSAL OF ACTIONS
Lets attempt to summarize.
If a dismissal is found under Rule 16, we have to determine if
it is with prejudice or without prejudice. The dismissal is with
prejudice if it was dismissed under grounds (f), (h) and (i).
The proper remedy is to appeal.
If it was dismissed on any other ground aside from (f), (h) and
(i), the dismissal is without prejudice and the plaintiff may
either just file another complaint or, if the dismissal is marked
with grave abuse of discretion amounting to lack or excess of
jurisdiction, he may just file a petition under Rule 65.
If a dismissal is found under Rule 17, we follow the same
principle. Rule 17 also states if a dismissal is with and without
prejudice. We follow the principle of dismissal under Rule 41
in relation to Rule 16.
A dismissal under Rule 18, under pre-trial, is always with
prejudice, and the plaintiff must appeal.

Q: May the defendant make use of Rule 65?

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A dismissal under Rule 33, or demurrer on evidence, is a


dismissal with prejudice and the remedy is to file an appeal
from the order of dismissal.
If the dismissal is without prejudice, in general, the plaintiff
has not much to worry. He can actually forget about Rule 41.
He can just file a second complaint, but he must make sure it
is properly crafted. If the plaintiff files a second complaint, but
it was again dismissed, there is the probability that under Rule
17, Section 1 that it will be a dismissal with prejudice under
the two-dismissal rule. Thus, if a complaint has been
dismissed twice, the second dismissal may operate as an
adjudication of the merits.
Q: Does it mean that a second dismissal is always a
dismissal with prejudice?
No. The second dismissal will still be without prejudice as
provided for in Rule 17, unless there is a statement of such
dismissal being with prejudice in the notice of dismissal.
Remember our discussion regarding indispensable parties.
The theory behind the doctrine that a complaint must always
implead an indispensable party is for the court to have a final
determination of the case. If an indispensable party has not
been impleaded, the court may simply order the plaintiff to
amend his complaint to include the indispensable party (either
as a resolution of a Motion to Dismiss for failure to state a
cause of action, OR under its own authority under Section 11,
Rule 3). In this instance, the plaintiff can then just file an
amended complaint, and the case can proceed.
If the plaintiff however failed to obey the order of the court to
amend his complaint, the court may dismiss the case under
Rule 17, and the dismissal is with prejudice. The ground is for
failure to obey a lawful order of the court. The remedy of the
plaintiff in this instance is to appeal.
Generally, the court is given discretion to state whether a
dismissal is with or without prejudice. If the dismissal,
however, is not qualified, Section 3 of Rule 17 is very clear,
that dismissal is with prejudice. Therefore, the remedy of the
aggrieved party is to appeal and not to file a petition under
Rule 65.
We now tackle Sections 1, 2, and 3 of Rule 17 successively.
These sections are also grounds for dismissal.
Sections 1 and 2
Q: The plaintiff files a complaint today and the plaintiff
changed his mind tomorrow and moved to dismiss the
case. The summons had not been sent. May the plaintiff
dismiss his own complaint via a motion?
The plaintiff should not dismiss his case via a motion. The
means for a plaintiff to dismiss his case is provided for under
Section 1, Rule 17. A motion implies that the court has the
discretion to grant or deny the motion.
Q: What if a notice of dismissal was given instead?
The court is left without discretion. The court has to dismiss it.
Filing of a timely notice of dismissal will result in the
dismissal of the case. The dismissal is without prejudice,
unless plaintiff tells the court that the notice of dismissal is to
be considered adjudication on the merits.
Q: When is notice of dismissal proper?

A notice of dismissal is only proper before the service of an


answer or of a motion for summary judgment. If there is
already an answer, the plaintiff must instead file a motion to
dismiss and the court may either grant or deny the same.
Q: The case had been dismissed by the court because of the
plaintiffs notice of dismissal. What if plaintiff changed his
mind after the order of dismissal? What can he do?
He needs to wait ask for revival of the case within 15 days
from the filing of the order of dismissal. No new complaint
need be filed, and no docket fees need be paid again.
Q: Suppose the defendant filed a Motion to Dismiss, and
the plaintiff filed a notice of dismissal before the motion
may even be heard. How can this be resolved?
SC held that the court should confirm the notice of dismissal
by the plaintiff. The plaintiffs notice of dismissal prevails
over the motion to dismiss filed by the defendant.
Two-Dismissal Rule
Q: Plaintiff files a collection case for P500.000 against
defendant. Defendant visits the plaintiff and asked the
plaintiff for the dismissal of the case, promising payment.
Plaintiff acquiesced and files a notice of dismissal. The
court dismisses the case. The defendant still failed to pay.
Can the plaintiff file another case against defendant?
Yes, as the case was dismissed without prejudice.
Q: The defendant again approached plaintiff, asking again
for time. Plaintiff again agrees, and files another notice of
dismissal. It is again dismissed. What will be the effect?
The dismissal is with prejudice this time. If plaintiff files a
case for the same defendant for the same cause and the
defendant again failed to pay, the case will be dismissed as the
second dismissal is one with prejudice, and res judicata will
lie.
Q: What if the defendant files a motion to dismiss but
failed to allege res judicata, can the court proceed to
dismiss?
Yes, the court can do so, even if the defendant failed to allege
it. It is a non-waivable ground of dismissal, and anytime the
court discovers such fact, it will dismiss the case.
Q: Can the court say in its decision of dismissal that the
second dismissal is without prejudice?
No. The court cannot say the second dismissal is without
prejudice as the law itself dictates that such dismissal is with
prejudice. The court has no discretion if the second dismissal
is with or without prejudice. As long as it is the second
dismissal of the same case, it will always be with prejudice
due to res judicata.
Q: Are there any situations where the second dismissal is
without prejudice?
1. If the first case was filed in court which lacked
jurisdiction thereto, and the second case was filed in
a competent court and there was a second dismissal,
the second dismissal is not res judicata. The twodismissal rule will only lie if the case had been filed
in a court competent to hear it.
2.

In Section 2 Rule 17, a plaintiff may dismiss his


complaint via a motion to dismiss. Here, the
defendant has already filed an answer. If the plaintiff
seeks to dismiss the complaint, he must file a motion
to dismiss his complaint, copy furnished to the
defendant.

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Under the second instance, the likelihood is that the defendant


will not object. If the defendant does not object, and the court
dismisses the case without prejudice, the plaintiff is allowed to
file another case against the same defendant based on the same
cause.
The defendant can insist that the dismissal be one with
prejudice. This is allowed because the dismissal is upon the
initiative of the plaintiff, and the defendant is given the
opportunity to object. If you were the defendants counsel,
advise the defendant to object, and state that the dismissal
should be one with prejudice. It will preclude the plaintiff
from filing another case with the same claims against the same
defendant.
Q: What if the defendant has a counterclaim?
There will still be dismissal, but the defendant can ask that the
court to continue hearing on the counterclaim set up by
defendant in his answer. In the alternative, the defendant can
ask the court to try the counterclaim in a separate case.
Q: Will this apply even if the counterclaim is compulsory?
Yes. This is one of rare instances where a compulsory
counterclaim could survive without the principal action.
Section 3
Q: What are the grounds for dismissal under Section 3,
Rule 17?
1. The plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint;
2. Failure to prosecute his action for an unreasonable
length of time, or nolle prosequi;
3. Failure to comply with these Rules; and
4. Failure to comply with any order of the court
Under this section, the initiative for the dismissal of the case
comes from the defendant or the court itself.
Q: What if the plaintiff failed to appear during the trial set
for the presentation of rebuttal evidence? Will there be
dismissal?
No. The plaintiff has already presented his evidence in chief.
There is a difference between evidence in chief and rebuttal
evidence.
Q: How can the court order a dismissal under Section 3 of
Rule 17 upon the ground that the plaintiff failed to obey
the provisions of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In
Rule 18, it is provided expressly that after the last pleading is
filed, it is the duty of the plaintiff to set his complaint for pretrial. He must file a motion to have the complaint set for pretrial. When the plaintiff fails to set the hearing for pre-trial for,
let us say, one year ago up to the present, and there is a finding
that the plaintiff failed to do so, the court can dismiss the case
on the ground that the plaintiff failed to follow the provision
set upon in the Rules. This has been affirmed by the SC. So, if
it is the duty of the plaintiff to set the case for pre-trial, and he
neglects to do so for an unreasonable length of time, there is
every reason for the court to make use of Rule 17, to order the
dismissal of the case under Section 3. This is a dismissal with
prejudice unless the court makes the necessary qualification
that it is a dismissal without prejudice.
Dean Albano: But you should read Soliman v. Fernandez, a
2014 case. The SC held that the court should not dismiss the
case if the plaintiff fails to take further steps to prosecute or

set it for pre-trial because the further steps is not his, but for
the clerk of court, to take. Within five days from date of filing
of the reply, the plaintiff must move ex parte that the case be
set for pre-trial conference. If the plaintiff fails to file said
motion within the given period, the Branch Clerk of Court
shall file a notice of pre-trial.
Dean Jara, continuing: In most courts (RTC or MTC), if the
court calls the case for trial on the merits, and plaintiff does
not appear during trial, the lawyer for the defendant may ask
for the dismissal under Section 3, Rule 17 for failure of the
plaintiff to prosecute for an unreasonable length of time or for
failure of the plaintiff to appear on the date of the presentation
of his evidence in chief on the complaint. And usually, the
trial court accommodates the defendants move because if a
trial court dismisses the case, that is one case where the judge
can present that he has been resolving speedily the cases that
are assigned to him.
The Supreme Court came out with a resolution concerning this
particular provision in relation to Shimizu vs. Magsalin. Study
this case as it would be a good problem in the bar.
In Shimizu, the Court held that an order of dismissal with
prejudice should always comply with Rule 36 and the
Constitution. Otherwise, it shall be open to collateral and
direct attack. A trial court should always specify the reasons
why the complaint was dismissed so that on appeal, the
reviewing court can readily determine the prima facie
justification for the dismissal.
Shimizu involves a case of nolle prosequi, or failure to
prosecute. The court failed to substantiate its judgment aside
from a short sentence the case was dismissed for failure to
prosecute.
A valid judgment must contain factual findings and it must
have conclusions as to the law available. If the court simply
says that the dismissal was for failure to prosecute for an
unreasonable length of time, that is not a factual finding nor a
conclusion based on law. It is just a conclusion of the court.
The SC said that for a trial court to render a valid judgment,
the court should explain why and how the court came to the
conclusion that the plaintiff is guilty of nolle prosequi. The
court should give instances pertaining to the records of the
case that enabled the court to conclude that the plaintiff has
failed to prosecute for an unreasonable length of time. Without
such explanation, even if the judgment is entered, it can be
subjected to direct or collateral attack.
An order of dismissal with prejudice under Rules 16, 17, 33 or
even under any rule allowing dismissal of the action must
comply with the requirements of Section 1, Rule 36.

PRE-TRIAL
Pre-trial is mandatory in all cases, even in summary
procedure, where it is called a preliminary conference. It is
present even in small claims procedure, where there is a
semblance of pre-trial in the preliminary conference called a
Judicial Dispute Resolution.
It is the duty of the plaintiff to schedule his complaint for pretrial after the last pleading has been filed. If he fails to do so,
the case may be dismissed with prejudice under Rule 17.
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Again, following the rule in Shimizu, the order of dismissal


should explain how the court has arrived at the conclusion that
the plaintiff has not obeyed the Rules of Court.
Q: When is pre-trial not mandatory?
It is not mandatory if all the defendants have been declared in
default. The reason is obvious there is no defendant to have
pre-trial with.
Mediation and Conciliation
This rule on pre-trial has been modified by the SC, applying
the rules of mediation and conciliation.
The Trial Court calls the parties to pre-trial. The parties are
told to attend a mediation/conciliation process. The case might
be terminated while in this process. The mediator/conciliator
usually issues notices to the parties as to the schedule of the
mediation/conciliation conference. If the plaintiff does not
appear, he repeatedly ignores the notices, the
mediator/conciliator will submit a report to the trial court and
the court may dismiss the case with prejudice. If the court
orders that the parties should attend a mediation/conciliation
conference, the conference is deemed part of the pre-trial
process. It is tantamount to the plaintiff absenting himself
from a hearing in the trial, and thus a violation of an order of
the court. Thus, such disobedience by the plaintiff shall be a
ground for dismissal with prejudice.
If the mediator/conciliator fails to mediate or to settle the case,
they will file an official report to the trial court. The case will
proceed to pre-trial proper. Parties will be ordered to submit a
pre-trial brief and attend the pre-trial conference.
Pre-Trial Proper
If any one of them fails to submit a pre-trial brief, there are
serious sanctions imposed. Also, even if the parties have
timely submitted their pre-trial brief but a party was absent in
the pre-trial conference, there are serious consequences.
If the plaintiff failed to file a pre-trial brief or attend the pretrial conference, the case will be dismissed and the dismissal is
with prejudice.
If it is the defendant who failed to file a pre-trial brief or
attend the pre-trial conference, the plaintiff is allowed to
present his evidence ex parte. The decision of the court will be
based on such evidence.
Do you still remember the difference between ex parte
presentation of evidence under Rule 9 and Rule 18?
Under Rule 18, if the defendant filed an answer but fails to
submit a pre-trial brief or did not attend pre-trial conference,
the plaintiff can present evidence ex parte and the court will
make an award according with the evidence presented by
plaintiff (application of amendment to pleadings in order to
conform to evidence).
Under Rule 9, the defendant is in default, ex parte evidence
can be presented, and the court will only award those reliefs
prayed for in the complaint.
Q: May a third party such as his counsel appear for the
party?
Yes, but the third party must be armed by a power of attorney,
and in writing, that will empower him to enter into

stipulations, to submit to arbitration or other ADR, or to enter


into a compromise agreement.
Q: What if there are two preliminary conferences; the
defendant attended the first but did not attend the second
one? Will he be sanctioned?
No. After the termination of the first pre-trial conference,
it is arbitrary and capricious on the part of the trial court
to schedule a second conference. But it is essential that the
first one must have been terminated.
Q: What are the differences between a criminal case and a
civil case when it comes to pre-trial?
In a civil case, stipulations of facts can be had; joint
stipulation of facts can be had; parties are encouraged to agree
on the existence of certain facts, making them part of the
records of the case; and verbal stipulations of facts can be
allowed and considered valid. These stipulations need not be
presented in evidence, as the court will take judicial notice of
these stipulations, and will be considered as judicial
admissions.
The rules in a criminal case are much stricter. Stipulation of
facts should be reduced into writing, signed by the counsel of
the accused and accused himself, and approved in court.
Otherwise, it will be inadmissible in court.
Q: One of the purposes for pre-trial is the advisability or
necessity of suspending the proceedings. What are the
grounds for suspending the proceedings?
The grounds are not in the Rules of Court. It is in the NCC.
Read Art. 2030 under Title XIV, or Compromises and
Arbitrations:
Art. 2030. Every civil action or proceeding
shall be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or
both parties; or
2. If it appears that one of the parties,
before the commencement of the
action or proceeding, offered to
discuss a possible compromise but
the other refused the offer
Pre-Trial Order
The court is required to issue a pre-trial order after the
termination of the pre-trial conference, stating therein the
matters to be taken up and will serve to control the
proceedings in trial proper. The court is required to specify the
issues that have not been stipulated upon and what should be
the object of the trial whenever the court finds it necessary to
conduct a trial. This is an important document in a civil case
insofar as the triable issues are concerned.
If we follow the decisions of the SC, since the issues specified
in the pre-trial order control the proceedings to be taken
thereafter by the court, the court may disregard the pleadings
submitted by the parties after the pre-trial.
Q: The complaint was for collection of a large sum of
money amounting to P1M. During pre-trial, the parties
agree that the real issue is to recover possession and
ownership from defendant of a piece of land, instead of
collection of P1M as stated in the complaint. That is the
issue embodied in the pre-trial order. Is the pre-trial order
valid?

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Yes. Although it is in conflict with pleadings, Rule 18 is very


clear that it is the pre-trial order that will govern the
proceedings, not the pleadings.
Although we learn in Evidence that the issues are those found
in the pleadings in a civil case, the triable issues for the
purposes of a civil case are those found in the pre-trial order.
There is nothing wrong in a civil case if we start with a
collection of money case and that was converted to a recovery
of property case in pre-trial even without amending the
complaint. This is because what governs the course of the
proceedings is the triable issue that is specified in the pre-trial
order, as specified under the last section of Rule 18. Thus, in
our last example, the court will simply ignore the issue as to
the claim for a sum of money, as the issue to be tried will be
the issue on the recovery of possession and ownership of a
piece of land, the issue found in the pre-trial order.
Q: Why do we allow the trial court to change the issues
without changing the pleadings?
This is because, during the pre-trial hearings, the parties are
present therein. If they both agreed to the change, such as
changing the issues of the complaint from collection for a sum
of money to a recovery of possession and ownership of
property, then the court will be simply following the desire of
the litigants as to what issue to be tried during the trial.
Note, this principle is allowed in civil cases only. It is
inapplicable in a criminal case.
Let us say the court strictly follows the pre-trial order and
reminds the parties that the issue in the trial will be recovery
by the plaintiff of possession and ownership of property from
the defendant. During the trial, if the plaintiff was able to
show that he was indeed entitled to recover, then there is
nothing wrong with that as the evidence is relevant and
material.
Q: What if during the trial, the plaintiff also presented
evidence that he is also entitled to recover 1M along with
the property, will it be allowed?
He cannot, if the defendant objects. If the defendant, however,
failed to object, the plaintiff will be able to present evidence
on an issue not raised in the pre-trial order.
Q: Why do we allow the plaintiff to present evidence on an
issue not raised in the pre-trial order, about his
entitlement to recover from the defendant the amount of
1M?
This is because of the rule of amendment to conform to
evidence. In a civil case, we can jump from one issue to
another so long as parties agree. The issue in the pre-trial
order could be different from that raised in the pleadings, and
even issue tried during trial could be different from that raised
in the pre-trial order. The parties are given much flexibility
and allowance in a civil case to present evidence on any issue
they so desire. The only limitation is that the other party might
object to evidence presented that is not related to the issue
found in the pre-trial order, that the evidence is irrelevant and
immaterial. If evidence is allowed, the court shall issue
judgment based on evidence presented, based on the rule of
amendment to conform to evidence.
Alternative Dispute Resolution (ADR)
The NCC expresses the policy of the state that the courts
should encourage litigants to settle disputes amicably or to

submit to arbitration if they cannot voluntarily agree to settle


the dispute by themselves.
Read: Domestic Arbitration Act (RA 876), and A.M. No. 0711-08-SC Special Rules on ADR
The law on ADR gave autonomy to contracting parties in
submitting their disputes to alternative modes of dispute
resolution, including the prerogative to agree on the procedure
to be followed in case they enter into any mode of ADR.
There are 3 recent cases dealing with ADR. The principles
formed in these 3 cases form the circular on arbitration.
These cases are:
1. Gonzales v. RTC,
2. ABS-CBN Broadcasting Corporation v. World
Interactive Network Systems (WINS) Japan Co., Ltd.,
and
3. Korea Technologies Co., Ltd., v. Hon. Alberto A.
Lerma, et al.
Gonzales v. RTC explains the doctrine of separability or
severability.
Doctrine of Separability / Severability (Case)
This doctrine enunciates that an arbitration agreement is
independent of the main contract. The arbitration agreement
is to be treated as a separate agreement and the arbitration
agreement does not automatically terminate when the contract
of which it is part comes to an end.
The separability of the arbitration agreement is especially
significant to the determination of whether the invalidity of the
main contract also nullifies the arbitration clause. Indeed, the
doctrine denotes that the invalidity of the main contract, also
referred to as the container contract, does not affect the
validity of the arbitration agreement.
Judicial Remedies
ABS-CBN v. WINS enumerates the remedies of a party
aggrieved by an arbitral award.
According to the Supreme Court, a party aggrieved by an
arbitral award has three (3) remedies, to wit:
(a) a petition in the proper trial court to issue an order to
vacate the award under Republic Act No. 876 (which
applies to domestic arbitration);
(b) a petition for review with the Court of Appeals under
Rule 43 of the Rules of Court on questions of fact, of
law, or mixed questions of fact and law; and
(c) a petition for certiorari with the Court of Appeals
under Rule 65 of the Rules of Court if the arbitrator
acted without or in excess of his jurisdiction or with
grave abuse of discretion amounting to lack or excess
of jurisdiction.
The grounds to vacate under Section 24 are:
(a) The award was procured by corruption, fraud, or
other undue means; or
(b) That there was evident partiality or corruption in
the arbitrators or any of them; or
(c) That the arbitrators were guilty of misconduct
in refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear evidence pertinent
and material to the controversy; that one or more of
the arbitrators was disqualified to act as such under
section nine hereof, and willfully refrained from
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disclosing such disqualifications or of any other


misbehavior by which the rights of any party have
been materially prejudiced; or
(d) That the arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and
definite award upon the subject matter submitted to
them was not made.
Rule 43
The Supreme Court noted that Rule 43 of the Rules of Court
expressly applies to awards, judgments, final orders or
resolutions of quasi-judicial agencies, including voluntary
arbitrators authorized by law.
Rule 65
As for the remedy under Rule 65, the Supreme Court stressed
that it will not hesitate to review a voluntary arbitrators award
where there is a showing of grave abuse of authority or
discretion amounting to lack or excess of jurisdiction, and
there is no appeal, nor any plain, speedy remedy in the course
of law.
It should be noted that the Philippine Alternative Dispute
Resolution Act of 2004 (ADR Law) adopted and
incorporated the provisions of the UNCITRAL Model Law on
International Commercial Arbitration (Model Law), which
limits recourse against an international arbitral award only to
the grounds specified under Section 34 of the Model Law
(e.g., incapacity of a party to the arbitration agreement or the
invalidity of the arbitration agreement under the applicable
law). Neither the Model Law, nor the New York Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards, to which the Philippines acceded in 1967, recognize
the setting aside of international/foreign on the broader
grounds of errors of law and/or fact or grave abuse of
discretion.
Notably, the ruling in ABS-CBN treated the case as a
domestic arbitration even though one of the parties, i.e.,
WINS, was a Japanese corporation and a substantial portion of
the obligation, i.e., the distribution and sublicensing of the
The Filipino Channel, was performed in Japan. Perhaps this
may be explained by the fact that the arbitral award in this
case was rendered prior to the enactment of the ADR Law. It
was only under the ADR Law that a distinction was made
between domestic arbitration and international arbitration.
Under the ADR Law, international arbitration shall be
governed by the Model Law, while domestic arbitration shall
be governed by R.A. No, 876. The ADR Law adopts the
definition of international arbitration under Article 1(3) of the
Model Law. Domestic arbitration, on the other hand, defines
domestic arbitration as arbitration that is not international.
Retroactive Effect
In Koreatec v. Lerma, the Supreme Court held that the ADR
Law, being a procedural law, may be given retroactive effect.
Hence, there appears to be a conflict in this respect between
ABS-CBN and Korea Technologies.
While RA 9285 was passed only in 2004, it nonetheless
applies in the instant case since it is a procedural law which
has a retroactive effect.
Likewise, KOGIES filed its
application for arbitration before the KCAB on July 1, 1998
and it is still pending because no arbitral award has yet been
rendered. Thus, RA 9285 is applicable to the instant case.

Well-settled is the rule that procedural laws are construed to


be applicable to actions pending and undetermined at the time
of their passage, and are deemed retroactive in that sense and
to that extent. As a general rule, the retroactive application of
procedural laws does not violate any personal rights because
no vested right has yet attached nor arisen from them.
General Principles and Process
There are certain principles to keep in mind concerning
arbitration proceedings.
Take note particularly of these three principles:
1. Principle of Separability or Severability
2. Principle of Judicial Restraint
3. Competence- Competence
Principle of Separability (Discussion)
Under the pricinple of separability, the arbitration clause is
treated as an agreement independent of the other terms of the
contract of which it forms part. A decision that the contract is
null and void shall not entail ipso jure the invalidity of the
arbitration clause.
If there is a judgment by a court that the container contract is
unenforceable, that will not affect the arbitration clause as it is
a separate contract by itself. This clause will still govern the
relationship of parties concerning the filing of cases in court or
arbitration board as the case may be.
If the arbitration clause is still valid, and one of the parties
filed a case in court, allegedly for the enforcement of his right,
then the court, confronted with the arbitration clause will have
to either dismiss the complaint or suspend the proceedings and
compel the parties to go into arbitration.
Under the decisions of the three cases, the court also
emphasized that there could be a complaint to declare the
unenforceability of or to declare void the arbitration contract.
It is an RTC that has jurisdiction to do so. But even if there is
a pendency of such a case to declare unenforceability of or to
declare void the arbitration contract, it shall not serve to
prevent the parties from proceeding to arbitration. In fact,
these cases came out with a principle which the court called
the Principle of Anti-Suit Injunction.
The Principle of Anti-Suit Injunction means that the court has
no authority to issue a writ of injunction to prevent an
arbitration from proceeding or an arbitration board to be
constituted for the purpose of enforcing the arbitration clause.
Competence-Competence
The principle of competence-competence states that the
arbitral body has the power to initially rule on the question of
its jurisdiction over a dispute including any objections with
respect to the existence or validity of the arbitration agreement
or any condition precedent to the filing of a request of
arbitration.
The Special ADR Rules recognize the principle of
competence-competence, which means that the arbitral
tribunal may initially rule on its own jurisdiction, including
any objections with respect to the existence or validity of the
arbitration agreement or any condition precedent to the filing
of a request for arbitration.
Restatement of the Rule:
Before the arbitral tribunal is constituted, the regular courts
have jurisdiction to determine the issue of competence of a
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tribunal. The moment the arbitral tribunal is constituted, the


arbitral tribunal has the prerogative to rule on its own
jurisdiction.
There arises a policy of judicial restraint, such that the finding
of the court on the jurisdiction of the arbitral tribunal is at best
prima facie.
The RTC has the authority to entertain a petition to declare
void or unenforceable an arbitration clause. The decision of
the RTC, however, is merely prima facie.
Q: Does the prima facie finding of the court mean that
the arbitral tribunal can still be formed?
Yes. If the court finds that the arbitration agreement is null
and void, inoperative or incapable of being performed, a party
may nevertheless commence arbitration and constitute the
arbitral tribunal.
Q: So where does prima facie finding of the court come
in? How is it prima facie?
Since the finding of the court is only prima facie, this means
that the same issue may be passed upon by the arbitral
tribunal, which has the effect of superseding the previous of
the court.
This is the after ruling.
Q: What about the after-after ruling?
The same issue on jurisdiction may be passed upon in an
action to vacate or set aside the arbitral award. In this case, it
is no longer a prima facie determination of such issue or
issues, but will be a full review of such issue with due regard,
however, to the standard of review for arbitral awards.
Personal Opinion:
The relation between the prima facie ruling, after ruling, and
after-after ruling seems to be confusing at first. Try to apply it
in a scenario like this one.
There is a contract between A and B and that contract contains
an arbitration clause. There was a violation of that contract
and A wishes to enforce the arbitration clause. B, however, is
adamant that the adamant clause is actually null and void. He
states he was only forced to agree to the arbitration clause.
Before the arbitration tribunal is constituted, B sought the help
of the court to declare the arbitration clause void. The court
determined the arbitration clause is really void. This
declaration, however, is merely prima facie and is not final.
This is the prima facie ruling part of ADR.
Since the ruling of the court is merely prima facie, the
arbitration tribunal may still be constituted. When it was in
fact constituted and it did here, the tribunal passed upon on the
same issue. It stated the arbitration clause is valid. This is the
after ruling and is the very embodiment of the principle of
competence-competence.
Since the arbitration tribunal determined the clause is valid, B
may petition the appropriate court again for judicial relief. He
may make use of Rule 3 under the Special Rules on ADR if
there is no arbitral award yet, or if there is one, he must vacate
or set aside the award under Rule 11. The ruling of the court
will be the after-after ruling and will be a full review of such
issue.
Read: Rules 3 and 11 of the Special Rules on ADR

The Supreme Court has inserted in the rules remedies


available to the parties in ordinary cases.
If the local court or an arbitral body makes a finding that the
arbitration clause is really valid and binding, it is inappealable.
If the arbitral body makes a finding that the clause is invalid,
the decision is appealable to a trial court. If there is a finding
that the arbitrator is qualified, a motion for reconsideration,
appeal, or a petition under Rule 65 against such finding are all
prohibited. This is to emphasize the policy of judicial restraint
insofar as arbitration proceedings are concerned.
Principle of Judicial Restraint
Under this principle, there should be least intervention by the
courts of law insofar as arbitration proceedings are concerned.
If there is an ongoing arbitration, or even if there is a pending
case where there is a right to compel one of the parties to
submit to arbitration, the court should not interfere in the
constitution of the arbitral board.
The reasoning behind this principle is that when the parties
crafted the arbitration clause, there is an implicit
understanding between the parties that an arbitral board, and
not a court of justice, should resolve their dispute. The court
deems this as a valid contract the policy is to give autonomy to
the parties in choosing the manner to adjudicate their disputes.
They do not need to go to a court of justice. They can go to an
arbitration body, which is a faster and practical means of
settling their disputes.
Q: May an arbitral body grant provisional remedies?
The circular on arbitration as well as jurisprudence states that
yes, an arbitration board can be allowed to grant provisional
remedies or interim relief. The UNCITRAL Model Law on
ICA also grants courts power and jurisdiction to issue interim
measures. Thus, a panel of arbitrators can issue a writ of
preliminary injunction, a writ of preliminary attachment, they
can even appoint a receiver, and issue a protection order so
that the property in dispute may be preserved.
If a court of justice grants interim relief or provisional relief
that is in conflict with the relief granted by the arbitral body, it
is the relief granted by the arbitral body that shall prevail. This
emanates from the principle of Anti-Suit Injunction and
Principle of Judicial Restraint.
Arbitration Process
The complaint in the arbitration board must contain evidence
in the form of attachments and the legal brief, an argument
supporting the partys stand why his claim must be given
weight and granted. The defendant must file a response of
similar composition also with legal brief. The legal brief is
similar to a memorandum (in ordinary civil procedure, when
there is an appeal, as a general rule we require filing of a brief
in court.).In short, this is a shortcut of the civil procedure.
There is no summons issued by the arbitration board, just a
notice for filing a response. Service thereof can be had by
private courier.
Because of the requirement of prior submission of evidence
together with the filing of pleadings and legal brief, it is easy
to appreciate how the arbitration board can easily grasp what
the issues are all about and they can right away render an
arbitral award. The body, however, may still require the

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submission of additional evidence if needed. There is a


provision in the ADR rules which states that the technical
rules of evidence will not govern proceedings therein.
Confirmation, Correction or Vacation of Award
Let us say that the winning party wants the arbitral award to
be treated like a judgment of the court, he simply files with the
RTC to confirm arbitral award. He can do it at any time. If
arbitral award is confirmed by the RTC, the arbitral award
ceases to be such and is now a judgment that can be executed
under Rule 39. Violation of the judgment can cause the
winning party to file motion for execution of judgment. In
arbitration, an arbitral award is final and executory, especially
if confirmed by the RTC.
The losing party can file a petition with the same RTC which
has authority to confirm the award for purpose of vacating,
correcting or modifying said award.
Q: Supposing the RTC vacates the arbitral award and sets
the award aside. Can the RTC make its own decision
concerning the merits of the decision?
Not possible. Although a court of justice can vacate, modify or
correct an arbitral award, it has no authority to render its own
judgment on the merits. The domestic arbitration law and the
SC Circular said that if the court decides to vacate the award,
the court does not have the authority to change the conclusions
of law of the arbiter. A court cannot render its own decision on
a case already submitted for arbitration. While it can vacate,
modify or correct the award, and it does so, the court should
return the decision to the arbitration panel for further study, or
the parties can opt to have a new arbitration panel constituted.
The court cannot impose its own judgment on the merits of the
case. The court can review the case, and modify, vacate or
correct the award, but it cannot reverse the findings of facts
and conclusions of the arbiter.
Q: Supposing the RTC affirms the arbitral award, does
the losing party still have a recourse?
The recourse of the losing party is to appeal in the CA via
Petition for Review under Rule 43. The justification for this
remedy is that in the enumeration of quasi-judicial bodies
whose decision can be reviewed by the CA, it includes the
review of an award made by arbitrators. From Rule 43, there
can be an appeal to the SC via a Petition for Review under
Rule 45. But see personal opinion below.
There is a judicial review for reviewing arbitration cases. But
the reviewing courts will have limited authority concerning
the manner by which the judgment could be held. The court
cannot change the factual findings of an arbitral body. In case
of a review brought to the RTC, CA or SC involving arbitral
award, there are few grounds mentioned. We cannot raise
questions of law or fact. We have to follow the grounds
mentioned in RA 876.
The grounds for justifying a court of justice in issuing an order
to vacate the award are not the usual grounds of appeal in civil
cases. The courts should see to it that causes should be
founded on these grounds for granting the vacation of an
award.
Furthermore, if there is an appeal in the higher court for a
petition for review of an arbitral award, the ADR law provides
that the appellant should file a bond equal to the award given
by the panel of arbitrators. This is an exception to the rule

because in ordinary court procedure, there is no need to file an


appeal bond as it has been done away by BP 129.
Personal Opinion:
This may have been already updated. If you read recent cases
on ADR, particularly the 2015 case of DENR v. United
Planters, the Supreme Court held that the remedies of the
aggrieved party to the confirmation by the RTC of the arbitral
award are Rule 11.2(D) and Rule 19.1(H) of the Special Rules
on ADR.
Rule 11.2 (D) requires the party to file a petition to vacate the
arbitral award in opposition of a pending petition to confirm
the arbitral award, not later than 30 days from receipt of the
award by the petitioner.
On the other hand, Rule 19.1(H) allows the aggrieved party to
file a Motion for Reconsideration in case the RTC confirms
the award.
The Supreme Court further held that failing which, the
aggrieved party may resort to Rule 19.26 of the Special ADR
Rules.
Rule 19.26 allows the aggrieved party to file a special civil
action for certiorari to the Court of Appeals if the RTC acted
without or in excess of jurisdiction, and there is no appeal or
any plain, speedy or adequate remedy in the ordinary course of
law.
Since Rule 19.26 requires that there should be no plain,
speedy, or adequate remedy in the ordinary course of law, if
the aggrieved party did not make use of either Rule 11.2 or
Rule 19.1 first, it may not proceed to CA under Rule 19.26.
Furthermore, under Rule 19.7, the party may not file a civil
action for certiorari if the inquiry is on the merits of the award.
The RTC must have acted without or in excess of jurisdiction.
Finally, the Supreme Court held that the Special ADR Rules
take precedence over the ordinary rules of procedure. Under
the Special ADR rules, the civil action for certiorari must be
filed within 15 days from notice of the judgment to be set
aside. This should control over Rule 65, where it states that
certiorari may be filed within 60 days.
International Commercial Arbitration
With respect to International Commercial Arbitration, the
arbitration may be held here in the Philippines or elsewhere.
The remedy of a winning party in a case decided by a foreign
court, for the enforcement thereof in the country, is to file a
petition for the enforcement of the foreign judgment. There is
no need to file a petition for recognition of a foreign judgment.
Our laws do not recognize a foreign arbitral award as a
judgment of a foreign court. It is just an arbitral award. Thus,
the prevailing party in an arbitral award cannot make use of
Section 48 under Rule 39. He must avail of another remedy
provided by the SC Circular, which is a petition for
recognition and enforcement of foreign arbitral award in the
RTC.
The court can refuse to resolve a petition for recognition and
enforcement of a foreign arbitral award. This is not like the
case of a foreign judgment rendered by a foreign court where
the decision is conclusive upon our courts, subject to the last
paragraph of Section 48, Rule 39. We do not apply Section 48,
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Rule 39 to a foreign arbitral award as it is not a judgment


rendered by a foreign court.
Q: What is the proper court when it comes to construction
disputes?
A: The Construction Industry Arbitration Commission
(CIAC). Executive Order (EO) No. 1008 vests upon the CIAC
original and exclusive jurisdiction over disputes arising from,
or connected with, contracts entered into by parties involved
in construction in the Philippines, whether the dispute arises
before or after the completion of the contract, or after the
abandonment or breach thereof. By express provision of
Section 19 thereof, the arbitral award of the CIAC is final and
unappealable, except on questions of law, which are
appealable to the Supreme Court. With the amendments
introduced by R.A. No. 7902 and promulgation of the 1997
Rules of Civil Procedure, as amended, the CIAC was included
in the enumeration of quasi-judicial agencies whose decisions
or awards may be appealed to the CA in a petition for review
under Rule 43. Such review of the CIAC award may involve
either questions of fact, of law, or of fact and law.

INTERVENTION
There are four kinds of intervention in our Rules of Court and
various circulars by the Supreme Court:
(1) Intervention under Rule 19
Under Rule 19, intervention is upon courts discretion. A
stranger to a case voluntarily introduces himself as a party to
the case, but must seek court permission to do so through a
Motion for Intervention.
The Motion for Intervention should show:
1. The intervenor has direct interest;
2. He has a grievance against both parties in the pending
case;
3. He wants to side with one of the parties; or
4. He is situated in a very unfortunate position wherein
the judgment of the court could adversely affect his
properties.
As a general rule, intervention is not a matter of right because
the intervenor is required to file a motion subject to the courts
decision. In the resolution of the motion, the court has the
discretion to grant or deny the motion. If the motion is denied,
the intervenor can file a separate case against any one, or both,
of the parties. If his case is already filed, he can seek to have
the cases consolidated, in instances where consolidation is
proper.
If the motion is granted, intervenor is required to file a
pleading in the form of a complaint-in-intervention or answerin-intervention.
Q: What is a complaint-in-intervention?
A complaint-in-intervention is filed if the intervenor wants to
side with the complainant or is against both complainant and
defendant in the main complaint.

Q: Since the Rules only allow these two pleadings to be


filed, does that mean the intervenor may not file a crossclaim or a third-party complaint, among others?
The filing of these pleadings does not preclude the intervenor
from availing of the other pleadings allowed in a civil case
(counter-claim, cross-claim, third-party complaint, etc.)
Q: Do we recognize a motion to intervene as a matter of
right on the part of the intervenor?
Yes, this is found on Rule 3, under the provision on class suits,
where any member of the class has the right to intervene as a
matter of right. The court has no option but to grant the
intervention.
(2) Court-mandated intervention
In marriage-related cases under Rule 9, if the defendant does
not answer, the court has no authority to declare the defendant
in default. The court will direct the prosecutor to intervene in
order to determine that there is no collusion between parties.
(3) Forced intervention
There are forced interventions under Rule 39 and 57. These
two have to do with garnishment.
Under Rule 39, when the court issues a writ of execution and
the properties of the losing party have been levied upon, the
sheriff may issue an ancillary writ of garnishment. When the
properties of a judgment debtor in the possession of a third
person are subjected to a writ of garnishment, that third person
becomes a forced intervenor in the proceedings. That person
will have to obey the orders of the court issued in relation to
the execution, whether the third person likes it or not.
Under Rule 57, if there is a writ of preliminary attachment
issued by the court, and following a supplemental writ of
garnishment is issued, and the writs were enforced by the
sheriff upon a third person, that third person becomes a forced
intervenor in the proceedings.
(4) Court-encouraged intervention
Under environmental cases, it is encouraged by the courts for
NGOs and other parties to intervene whenever there is a
petition filed under the environmental laws. The court cannot
compel the intervention of these bodies, only to encourage
them.
There are some cases whose positions it appears to be in
conflict with one another in reference to the intervention under
Rule 19.
Q: Before the court was able to grant a motion for
intervention, the principal case was dismissed. What
happens to the motion for intervention?
It will render the motion academic. The motion presupposes
the presence of a principal action. There can be no
intervention if there is no principal action. As a general rule,
intervention is always ancillary to a principal action.
For the exception, you need to read Metrobank v. CA.

Q: What is an answer-in-intervention?
An answer-in-intervention is filed if the intervenor wants to
side with the defendant.

A motion for intervention was filed while the case was


pending. The court granted the intervention. After receipt of
the order allowing him to intervene, the party filed a
complaint-in-intervention against all the parties in the case.
Intervenor did not realize that the parties of the case were
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settling. The parties did arrive at an amicable settlement. The


parties sought for the dismissal of the case, which was
allowed. The intervenor objected to the idea of having his
petition dismissed. The principal parties told the court that it is
axiomatic in intervention that once the principal action has
been terminated, the subsidiary action is dismissed also.
The Supreme Court held that the intervention was already
allowed. The principle that the contention of the parties was
applicable only in the instance the motion to intervene was not
yet granted. In this case, the court has already granted the
motion to intervene. The interest of intervenor was not
common with the interest against the other parties, having
filed a complaint-in-intervention against both parties.
Thus, the intervention should be allowed to stand, the
standing of which, the intervention is considered a
separate case against the parties. Here, the intervention
survived.
The Metrobank case involves a situation where the
intervention will survive the dismissal of the main complaint.
But for the intervention to survive, the pleading to be filed
must be a complaint-in-intervention against both parties to the
case. This will not be applicable if the intervention was in the
form of a complaint-in-intervention where the intervenor sides
with the plaintiff or if the intervention was via an answer-inintervention.
Read: Metrobank v. CA
Q: Is there any exception to the rule that the intervention
should only be allowed before judgment is rendered by the
trial court?
Yes. Although the rule provides a time frame for an intervenor
to be allowed to intervene, the SC has allowed intervention to
take place, even if there is already a pending appeal before the
CA. The Rule is very clear that intervention should be allowed
before judgment is rendered by the trial court. After judgment
is rendered by the trial court, intervention should no longer be
allowed. But the Supreme Court recognized the propriety of
an intervention even if the case was already pending appeal in
the CA or the SC.
In the first instance where the court will allow an intervention,
even on appeal, is when the intervenor is an indispensible
party. If an intervenor attempts to intervene if the case is
already on appeal, that will save the trial court, CA and SC
from another procedural problem. We learned that if the trial
court renders a decision in a case where an indispensable party
is not impleaded, that decision will never be final and
executory. So, if on appeal, if the indispensable party
intervenes, then he should be allowed to do so, because if he is
allowed, that will cure all the procedural effects that will be
present in this particular case. That will solve the problem of
whether or not there could be a final determination of the case
or whether or not the decision can be finally be executed under
the provisions of Rule 39.
Another situation that the SC allowed an intervention to
happen even if the case is already is on appeal is when the
Republic of the Philippines intervenes in the case. If the
Republic of the Philippines, via the Solicitor General,
intervenes in a case that is already on appeal, the SC said that
the intervention of the Solicitor General must be of national
importance, since the Solicitor General intervenes only when
the case is of paramount interest to the Republic of the
Philippines.

Q: Are there any instances where intervention is


prohibited?
Yes. A motion for intervention is prohibited in summary
procedure and small claims proceedings. It is also not
available in the writs of Amparo and Habeas Data.
Q: What if the motion for intervention is denied? What is
the remedy of the failed intervenor?
This is a gray area, but jurisprudence before the 1997 Rules
state that the intervenor may appeal from the denial.
Q: What if the motion for intervention is granted? May
the original parties appeal?
Although this is another gray area, the general consensus
seems to be, no, it is unappealable since the grant of the
motion for intervention is interlocutory. They may make use
of Rule 65.

CALENDAR OF CASES
The Rules of Court have adopted the Civil Code principle that
in computing periods, exclude the first day and include the
last.
Also, in computing periods, include Saturdays and Sundays.
Q: What is pretermission of holidays?
If the last day falls on a Saturday, Sunday, or a holiday, the
period will be extended until the next working day.
Q: What if it is a holiday in Manila but not Makati?
Take note of the phrase in the place where the court sits.
Thus, if it is a holiday in Manila but not Makati, and the case
is pending with RTC Manila, then there will be pretermission
of holidays. However, if the case is pending in RTC Makati,
even if the complainant or the defendant lives in Manila
(provided it is a real action), pretermission will not apply.
Q: What if the party sought to extend the period to file a
pleading and the due date of that period falls on a holiday?
Dean Albano: Pretermission will still apply. If it was
otherwise, that would unjustly deprive the party of the full
benefit of that extension (citing Reinier Pacific International
Shipping, Inc. v. Capt. Francisco Gueverra).

MODES OF DISCOVERY
The modes of discovery that we have in civil procedure are
also available in a criminal case.
The Supreme Court in the WEBB CASE came out with the
principle that the Modes of Discovery available in civil cases
are also available in criminal cases. The only difference is that
the use of the modes of discovery in a criminal case should not
violate or derogate the constitutional rights of the accused.
For instance, in a civil case, there is nothing wrong if the
plaintiff takes the deposition of the defendant or the other way
around. But in a criminal case, there is something wrong if the
prosecutor takes the deposition of the accused. The prosecutor
cannot take the deposition of the accused in a criminal case
since this is a violation of the constitutional rights of the
accused. The prosecutor, however, can take the deposition of a
witness whom the accused wants to present in court, so long
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as the witness is not the spouse of the accused (due to marital


privilege, or the rule on evidence precluding a spouse being a
witness against the other spouse).
But in a civil case, there is nothing irregular about either the
plaintiff or defendant being subject to deposition. This is even
encouraged by the rules found in civil procedure.
Q: Do the rules compel litigants to avail modes of
discovery?
In Rule 18, the plaintiff is asked to indicate if he desires to
make use modes of discovery or to use ADR. They are
required to manifest that to the court.
Q: Let us say that the plaintiff asked for leave to use
modes of discovery, but he failed to do so. Can the court
compel the plaintiff to avail it?
No, the court cannot compel, merely encourage the use of
modes of discovery. Modes of discovery are always voluntary,
not mandatory, although indirectly, the Rules have instances
where the law compels litigant to use modes of discovery or
otherwise he will suffer some sanctions given in the Rules.
Take, for example, Rule 25 and Rule 26.
In interrogatories to parties, the last section of Rule 25
(Section 6) provides that while the plaintiff can compel the
defendant, an adverse party, to testify during the trial of the
case as a witness for the plaintiff, and at the same time, the
defendant can compel the plaintiff to testify as a witness
during the trial, this cannot be done unless the plaintiff or
defendant has previously served upon the party concerned an
interrogatory. If the plaintiff serves a subpoena ad
testificandum to the defendant, requiring the defendant to
appear and testify in court on behalf of the plaintiff, the
defendant can ask for that subpoena to be quashed for failure
of the plaintiff to comply with requirements contained in Rule
25 Section 6.
The same sanction under Rule 25 Section 6 is practically the
same for admissions under Rule 26. The sanction under Rule
26 is also similar to the rule on actionable documents. If the
other party fails to make a response to a request for admission
of any document, the genuineness and due execution of that
document shall be deemed admitted. And the admission, just
like the rule in actionable documents, will be considered as a
judicial admission.
Q: Is there a conflict between Rule 26, or admission of
adverse party, and the rule on actionable documents?
No. Rule 26 involves only evidentiary matters, not documents
which form basis of the cause of action or defense. In other
words, Rule 26 involves non-actionable documents.
Other than these two rules, there is nothing in our Rules that
requires a party to avail of the modes of discovery. Availment
of a mode of discovery, as a general rule, is purely voluntary
on the part of an interested party.
Q: Do modes of discovery require leave of court?
It depends. Another basic principle in discovery measures is
that after an answer has been filed by the defendant, availment
of the modes of discovery does not require permission of the
court. The plaintiff or defendant is given the prerogative to
avail of the modes like taking of depositions or interrogatories
to parties or admissions to parties. The other modes of
discovery will ALWAYS require leave of court. Thus

production and inspection of documents or things in court will


always require leave of court, as does physical and mental
examination of a person. But in the case of depositions
pending trial, interrogatories or admissions, we do not need
leave of court so long as the defendant has already filed an
answer.
Q: If it does not require permission from the court, who
will take the deposition?
According to the Rules, the taking of depositions may be taken
before a notary public or any person who can administer oaths.
Deposition Before an Action or on Appeal
This is called in the past as perpetuation of testimonies.
Strictly, it is not a mode of discovery, as modes of discovery
assume that there is a pending case in court. A deposition
before an action does not require an action to be pending, and
is thus treated as an independent action by itself. This is
availed of by filing a Petition for Perpetuation of Testimony,
as there is no action filed yet.
Q: Since this is an independent proceeding, with what
court should we file the petition?
RTC. If we follow BP 129, that petition would be cognizable
under the Regional Trial Court since it is an independent
action incapable of pecuniary estimation. Regardless of the
contemplated action which we are going to file, the petition is
always cognizable by an RTC.
Q: Will the court issue summons?
No. There is no respondent. The court will simply issue a
notice that will inform potential adversaries of the request for
the perpetuation of testimony.
Q: If the case is under appeal, what court will take
depositions pending appeal?
The trial court still exercises jurisdiction to allow the taking of
a deposition pending appeal. It is not the appellate court that
has the authority to order the taking of a deposition pending
appeal, it is still the court of origin.
Taking of Depositions
The court has allowed the use of these modes of discovery as a
fishing expedition. Practically there is no limitation as to what
matters can be inquired into insofar as availment of discovery
measures are concerned. It is not required that the matters
sought be discovered are relevant right away to the issues
presented in the case.
When the law says that the statutes of discovery allow a
fishing expedition, it does not mean to say that the statutes of
discovery are intended only to gather evidence on behalf of
the interested party. He may want to obtain information only
for tactical advantage during the course of the case. He does
not have to present evidence in court information that is
gathered by him via these modes of discovery.
Q: How will this help declogging the heavy docket of the
court?
It is possible that, after the parties have availed of these modes
of discovery, they will enter into a stipulation of facts.
If there is a stipulation of facts, it may be possible that there
will be no more probandum, no more trial. At the very least
there will be a shorter trial since the parties have already
agreed on some of the facts of the case.

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If the plaintiff was able to gather information, let us say, from


a witness who according to the pre-trial brief of the defendant
would be a principal witness for the defendant, it does not
mean that the deposition given by such witness will be
admissible in court because of the deposition. The fact that a
party has taken the deposition of a potential witness does not
mean to say that this potential witness will now be excused
from going to court to give his testimony. The giving of
deposition is different from the giving of testimony in open
court.

Q: After the potential witness has given his deposition, and


later on, this witness receives a subpoena requiring him to
give testimony in open court, can the potential witness file
a motion to quash subpoena as he had given a deposition
of his testimony?
No, as the giving of a deposition cannot take the place of
giving testimony in open court. The deponent can always be
compelled to give his testimony in open court. Though his
testimony may be a repetition of his deposition, it still does
not matter. He still has to give his testimony in open court.

A party may give his deposition, but it does not mean that he
is excused from testifying in court. In fact, the Rules require
that if the party has already given his deposition, he is still
required to testify in court. His deposition will not take the
place of his the testimony in court. This is because the taking
of his deposition is only a discovery measure. The deponent
does not appear before the trial court to testify. He gives his
deposition not before a trial judge, but before another person
who is simply authorized to administer oaths.

Q: If the witness has given testimony in open court, what is


the use of the deposition he had previously given?
Deposition previously given can be used to impeach the
witness or corroborate the witness statements in the
testimony. This is the principle of evidence called laying the
predicate.

Q: If the case is pending here in Manila, and there is a


potential witness whose deposition is required by the
plaintiff, and this witness is also a resident of Manila, can
the plaintiff require this potential witness to give his
deposition?
Yes.
Q: What if the witness is in Cebu or Davao?
RTC Manila may not compel the witness to go to Manila even
if the interested party is willing to pay for his transportation.
The reason is that the witness may invoke his viatory right.
Where the witness resides more than one hundred (100)
kilometers from his residence to the place where he is to
testify by the ordinary course of travel, the witness may
invoke that he be not allowed to testify. This is known as
invoking his viatory right.
Q: What is the remedy of the interested party if he really
wishes to obtain the deposition of the Cebu or Davao
resident?
The interested party may ask any RTC in Cebu or Davao to
issue a subpoena. The interested party, therefore, and his
counsel, must go to Cebu or Davao to take the deposition of
the faraway resident.
Q: What if the potential witness is in Ikebukuro, Japan?
The interested party has to make use of a commission or
letters rogatory.
Q: What is a commission?
A commission is a request to the consulate of the Philippines
in the foreign country to take the deposition of the person
residing in that foreign country.
Q: What is a letter rogatory?
It is a request issued by a local court addressed to a foreign
court requesting the latter to take the deposition of a person
who is within the territorial jurisdiction of that foreign
country.
The letter rogatory will be passed to the DFA, who will in turn
pass the letter to our consulate in that foreign country, and
who (meaning, the consul) will in turn deliver the letter to the
foreign court.

Q: What is laying the predicate?


This refers to statements, oral or documentary, made by the
witness sought to be impeached on occasions other than the
trial in which he is testifying.
Q: What are the elements of laying the predicate?
Dean Riano:
1. The alleged statements must be related to the witness
including the circumstances of the times and places
and the persons present. If the statements are in
writing they must be shown to him;
2. He must be asked whether he made such statements
and also to explain them if he admits making those
statements (p. 327).
Q: When is the rule on laying the predicate inapplicable?
Dean Regalado: It is inapplicable if the prior inconsistent
statement appears in a deposition of the adverse party, and not
a mere witness, that adverse party who testifies may be
impeached without laying the predicate as such prior
statements are in the nature of admissions of said adverse
party (Vol. II, p. 852).
Q: What is the purpose of laying the predicate?
The purpose is to allow the witness to admit or deny the
prior statement and afford him an opportunity to explain
the same. Non-compliance with the foundational elements for
this mode of impeachment will be a ground for an objection
based on improper impeachment. Over a timely objection,
extrinsic evidence of a prior inconsistent statement without the
required foundation is not admissible.
Q: Is it possible that the deposition can be the testimony of
the witness?
It is possible.
Where the witness resides more than one hundred (100)
kilometers from his residence to the place where he is to
testify by the ordinary course of travel, the witness may
invoke that he be not allowed to testify. This is known as
invoking his viatory right. The witness can ask the court that
he be excused from giving his testimony in open court. Even if
the court issues a subpoena, the witness may ignore such
subpoena. He cannot be cited in contempt for disobedience.
The remedy of the court is to allow the taking of the
deposition, and the court can then consider the deposition
taken as his testimony. In other words, the fact that a
deposition has already been taken from a person does not
mean that the said person will be excused thereafter from
going to court in order to be a witness. That is possible only in
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exceptional cases mentioned in Rules, one of them being when


the witness invokes his viatory right. Or even if there is no
viatory right, if the witness/deponent is physically incapable of
going to court in order to testify, or is dead, the court can
consider the deposition previously given as his testimony in
court.
Q: What does ordinary course of travel mean?
It means land transportation. Thus, even if Cebu is 45 minutes
away from Manila, the RTC in Manila may not bind a person
in Cebu with a subpoena.
Q: Aside from invoking his viatory right, what other
reasons may a person quash a subpoena?
He may quash the subpoena if it is not properly issued or
served upon the witness.
For example, in subpoena duces tecum, if the books or
documents are totally irrelevant to the issue, or it would
involve trade secrets, it may be quashed by the interested
party.
If it is subpoena ad testificandum, the person may quash the
subpoena if the interested party did not pay the formers
transportation fee or witness fee. It is a good ground for the
quashal of the subpoena.
Q: How do we take the deposition of a witness?
There are two ways. It may be an oral examination, or upon
written interrogatories.
The procedure between the two is practically the same, except
that in deposition upon oral examination, the deponent is
personally present, the lawyer for the plaintiff is personally
present, and the lawyer for the defendant is also personally
present. They will conduct a hearing of sorts; there will be
direct examination, cross, re-direct, re-cross. Everything is
verbal and is presented before the presiding officer of that
proceeding.
If it is deposition upon written interrogatories, the lawyers do
not have to be personally present. They just have to give a
questionnaire in writing. These papers will be sent to the
presiding officer who will read the questions and jot down the
answers given by the deponent.
Q: May the presiding officer rule on objections?
No. Even if the presiding officer is a judge, he cannot rule on
the objections. The presiding officer is unaware of what the
issues really are. This is one of the reasons why depositions,
as a general rule, are not equivalent to testimony in open court.
At least in testimony in open court, the objections will be
ruled by the judged.
Q: What happens if there really is a objection during the
taking of depositions? Do we do away with objections?
No. The presiding officer, however, will simply say, The
objection is noted but the witness should still answer the
question.
Q: What if the deponent refuses to answer?
The interested party has to go back to the court of origin and
ask for the issuance of an order directing the witness to give
an answer for that particular question.
Q: May the deponent or any of the interested parties file a
motion to terminate or limit the examination?

Yes. If the witness or any of the parties can convince the court
that the taking of deposition is designed to primarily annoy or
embarrass the witness, they may ask the court of origin to
issue an order to terminate the taking of the deposition.
Q: What happens if the deposition is over?
The presiding officer will send the transcript of the
proceedings to the court of origin under seal.
Q: Will this transcript be considered evidence?
No. In order that the transcript will be considered as evidence,
it should be submitted, it should be offered as documentary
evidence by anyone of the interested parties. And it is during
this offer of the transcript as evidence when the trial court can
rule on the objections that were noted by the presiding officer.
This time the trial court will have the authority to rule on the
objections because the trial court is the one that is actually
trying the case.
Production and Inspection of Documents and Things
Q: What is the difference between a subpoena duces tecum
and this mode of discovery?
First, in a subpoena duces tecum, the process may be directed
either to a party to the case or a plain witness to the case.
When it comes to production of documents as a mode of
discovery, it could only be addressed to a party.
Second, they differ in purpose. In a subpoena duces tecum,
there is an assumption that the interested party will introduce
these documents as evidence. On the other hand, in production
of documents, the only purpose is for discovery.
Third, the scope of production and inspection of documents
and things are broader. It may involve real estate, it may
involve entry into or inspection of land. Since land is
incapable of manual delivery, it cannot be subject to a
subpoena duces tecum.
Q: What if the party refuses to obey the order of
production and inspection of documents?
Dean Albano: He will be cited in contempt. A person guilty of
disobedience of or resistance to a lawful order of a court or
commits any improper conduct tending, directly or indirectly,
to impede, obstruct, or degrade the administration of justice
may be punished for indirect contempt.

TRIAL
Q: Can a trial court decide a case properly and validly if
the court does not conduct a pre-trial or a trial for that
matter?
Yes. Although pre-trial is mandatory and though trial must be
had due to triable issues, the court can just skip these stages
and render judgment.
For example, in a judgment by default, there is no trial and no
pre-trial. Under Rule 9, if the court declares defendant in
default since he did not file an answer, one of the options is to
immediately render a judgment without requiring plaintiff to
present his evidence ex parte. In effect the trial court has
skipped from the filing of pleadings to the judgment phase
immediately.
Q: Supposedly the defendant filed his answer, can we still
do away with the trial?

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Yes, we follow the special kinds of judgments whenever an


answer is filed as found under the rules.
There can be a judgment on the pleadings if the answer does
not raise any issue at all, or even admits the allegations in the
pleadings. There is no pre-trial and trial in this case. The
plaintiff can move right away for a judgment on the pleadings.
There is also judgment based upon a compromise. If the
parties entered into a compromise agreement during pre-trial,
and the court concurs with the validity of the compromise
agreement, the court will render a judgment based upon
compromise without going into trial.
In summary judgments, there is a trial but it is not a full-blown
trial.
Furthermore, under demurrer to evidence, although there is a
trial, it is not a full-blown trial. Since demurrer to evidence
occurs only after the plaintiff has presented his evidence, and
before the defendant presented his, only a half of the trial
contemplated under Rule 30 has occurred.
But in instances where there are genuine triable issues, and the
parties cannot agree to a stipulation of facts, the court will
have to conduct a trial. The parties are given the opportunity
to make use of evidentiary rules. There is no offer of evidence
during pre-trial. At most, if there is evidence presented during
pre-trial, it is only for marking them as exhibits. In a pre-trial
brief, the parties just identify the documentary evidence, the
real evidence and testimonial evidence in the form of
affidavits.
The pre-trial order shall govern the trial of the case. Only the
issues specified in the pre-trial order will be proven in trial.
But this Rule is not strict because we allow amendment to
conform to evidence. If we follow strictly the Rules and we do
not allow amendment to conform to evidence, then only the
issues specified in the pre-trial order will be tried.
Q: If there are genuine triable issues, can the court still do
away with the trial?
Yes. The parties can help the court avoid a trial if the parties
stipulates on facts that are in dispute. If the parties submit to
the court complete stipulation of facts, and the court need only
review the law applicable (questions of law), then the court
can render a decision on the case without conducting a trial.
Trial is only necessary if there are factual issues. The courts
are presumed to know the law applicable to a given state of
facts. The trial contemplated under Rule 30 is a trial of facts in
dispute. But if the parties decide that these facts are no longer
disputed, and they manifested to the court that they agree fully
to the existence of these facts, then the trial may be avoided.
The next stage will just be the rendition of judgment.
Q: Are verbal stipulation of facts allowed?
Yes. In civil procedure, although there is a section in Rule 30
which provides for written stipulation on facts, the court
liberally allows verbal stipulations. For example, during the
pre-trial conference, everything stipulated upon may be done
verbally. But since the pre-trial conference is part of the court
proceedings, everything is recorded by the court stenographer.
The stenographer will transcribe the records and what the
court will readily decide that there has been a stipulation of
facts between the parties.
Q: What is the order of trial?

The order of trial in Rule 30 is the general rule. The order of


trial follows the sequence of argumentation of pleadings. The
affirmative side, the plaintiff, will first present his side, then
the negative side, the defendant, will set forth his defenses.
Once the defendant is done presenting his evidence, then the
court may allow parties to submit rebuttal evidence or even
sur-rebuttal evidence. But if the court does not allow
presentation of rebuttal evidence or sur-rebuttal evidence, the
trial will end after the defendant has rest his case.
Q: Can the court terminate the case after the defendant
rests?
Rule 30 gives an option to the judge to require the parties to
submit their respective memoranda to help the court in
arriving at a decision.
Q: Does failure to submit memoranda when required to do
so result in dismissal of the case?
Yes, under Rule 17, for failure to obey lawful court orders.
Q: May the order of trial be reversed?
The order of trial can be changed. If the court requires
defendant to present evidence ahead, then there is a reverse
order of trial. If the defendant set up affirmative defenses like
for example, payment, then the order of trial is reversed.
Under our Rules, if the defendant sets up only an affirmative
defense, there is no negative defense, then that constitutes a
hypothetical admission of the allegations contained in the
complaint.
If the defendant hypothetically admits, for purposes of trial,
that he incurred a loan, then there really is no need for the
plaintiff to prove the existence of the loan. It is now the duty
of the defendant to show that the loan had been paid, so the
order of trial is changed. Thus, the defendant is allowed to
present his evidence first. Thereafter, if the plaintiff does not
find it necessary to file rebuttal evidence, the court will
consider the case as submitted for decision.
Q: Who will receive the evidence? Is it always the judge?
Generally, when a trial is conducted by the court, it is the
judge appointed in that sala that should sit in the proceedings.
But there are certain instances when the judge may excuse
himself from presiding the case.
The first one is when the parties so agree; second, when the
parties appoints a commissioner for the presentation of
evidence; and third, when the branch clerk of court, upon
delegation of the judge, may sit in ex parte presentation of
evidence. However, in these instances, it is still the judge who
will have to write and sign the decision.
Q: When may the branch clerk of court accept evidence in
lieu of the judge?
1. In default proceedings;
2. In ex parte proceedings; and
3. If the parties agree that it is the branch clerk of court
who should preside when the evidence is presented
by them.
Consolidation of Cases
Q: Distinguish consolidation of cases from severance.
A:
Consolidation

Severance

Involves several actions


having a common question
of law or fact which may be

Contemplates a single
action having a number of
claims, counterclaims,

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jointly tried (Sec.1, Rule


31).

cross-claims, third-party
complaints, or issues which
may be separately tried.

Q: When is consolidation proper?


1. There are two or more cases;
2. These cases have common questions of law or fact;
and
3. They are pending in the same court.
Q: What are the ways of consolidating cases?
A:
Recasting the
Cases

Reshaping of the
cases by amending
the pleading,
dismissing some
cases and retaining
only one case.
There must be
joinder of causes
of action and of
parties.

Consolidation
Proper

Test-Case
Method

It is a joint trial
with joint
decision, the cases
retaining their
original docket
numbers.

By hearing only
the principal
case and
suspending the
hearing on the
other cases until
judgment has
been rendered in
the principal
case. The cases
retain their
original docket
numbers (Riano,
Civil Procedure,
p. 96, 2009 ed.).

Q: What is the rule on consolidation of cases?


As a general rule, consolidation is discretionary upon the court
to avoid multiplicity of suits, guard against oppression or
abuse, prevent delay, clear congested dockets, and simplify the
work of the trial court and save unnecessary costs and
expenses.
As an exception, consolidation becomes a matter of duty:
1. If two or more cases are pending before the same
judge; or
2. If filed with the different branches of the same RTC
and one of such cases has not been partially tried.
Q: May there be consolidation if the cases are all pending
in the same court (like the Regional Trial Court of Cebu)
but different salas (Branches 1, 2, and 3)?
In these cases, the internal rules of RTCs will be followed.
The judge in one branch cannot issue an order directing the
others to agree to the consolidation of cases, as there is a need
to coordinate with each branch first. One judge cannot simply
issue an order to be obeyed by another judge of the same level.
The internal rules of the RTC state that if there is a
consolidation consented by all the judges, it will be tried by
the sala with the lowest docket number. So it is possible so
long as there is consent of all the judges.
Q: What if the cases are pending in different courts?
If one case is in RTC Manila, and the other is in RTC Bulacan,
then the Supreme Court may order consolidation. Only the
Supreme Court has the power to consolidate these cases. Even
if the parties agree, or the judges agree, they cannot
consolidate the cases on their own.
The opposite of consolidation is severance of several issues
contained in one complaint. A trial court is given the authority
to tell the parties that the trial to be conducted is only for the

purpose of hearing a third party complaint, a counterclaim, or


a cross-claim, depending upon the discretion of the court
Trial by Commissioners
The language used in the Rule is not mandatory. This is
discretionary on the court.
There are, however, exceptional circumstances under the
Rules where there is mandatory appointment of
commissioners. These are:
1. In expropriation proceedings, for determining the
value of just compensation;
2. In partition cases, if there is a need to determine how
the property will be divided between the co-owners;
3. Under Rule 39, Sections 36 and 37, when the
judgment was not executed fully or no execution was
had; and
4. In the settlement of estates of deceased persons,
money claims have to be submitted to the settlement
court within the statute of non-claims, and have to be
responded to by the executor or administrator. If
administrator of the estate contests the validity of
these claims, then these claims will become contested
claims, and the court may appoint a commissioner to
determine these contested claims.
Q: What is the statute of non-claims?
It is a period fixed by the courts for the filing of claims against
the estate for examination and allowance.
Q: When should claims be filed?
As a general rule, within the time fixed in the notice which
shall not be more than 12 months nor less than 6 months after
the date of the first publication. Such period once fixed by the
court is mandatory. Otherwise, the claims are barred forever.
Belated claims, however, are an exception.
Q: What is the rule on belated claims?
Belated claims may be filed even beyond the period fixed by
the court:
1. On application of a creditor who has failed to file his
claim within the time previously limited, at any time
before an order of distribution is entered, the court
may, for just causes, allow such claim to be filed not
exceeding 1 month from the order allowing belated
claims; or
2. Where the estate filed a claim against the creditor or
claimant who failed to present his claim against the
estate within the period fixed by the probate court for
the settlement of such claims, the creditor will be
allowed to set up the same as a counterclaim to the
action filed by the estate against him.
Statute of non-claims supersedes the Statute of Limitations
insofar as the debts of deceased persons are concerned because
if a creditor fails to file his claim within the time fixed by the
court in the notice, then the claim is barred forever. However,
both statute of non-claims and statute of limitations must
concur in order for a creditor to collect.
Q: What is the difference between trial by commissioners
and the delegation to the clerk of court under Rule 30?
The power of a commissioner is much broader than the clerk
of court. Furthermore, the clerk of court has to be a lawyer. A
commissioner need not be one. A commissioner must in fact
have a profession that corresponds to the issue. If the issue
calls for knowledge on mining, for example, the commissioner
must be at least a mining engineer or a geologist.

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A commissioner has the power to rule on objections while the


clerk of court cannot.
Finally, a commissioner may be appointed to try issues that
arise even after the judgment has become final and executory.
This is possible in Rule 39. Since the clerk of court is limited
to reception to evidence, then this prerogative does not pertain
to them.

Q: Is it possible to have a final judgment even if there is


strictly no adjudication on the merits?
Yes. The two-dismissal rule is with prejudice even if there is
strictly no adjudication on the merits. The same with nolle
prosequi; the fact that the plaintiff did not present his evidence
in chief; the fact that the party disobeyed the court; or even in
pre-trial, where the plaintiff did not appear during the
conference. These are several instances where there is a
dismissal with prejudice even if strictly speaking the merits of
the case were not adjudicated by the court.

JUDGMENTS
Under Rule 36, Section 1, judgment or final orders should
have these four formal requisites in order to be valid:
3. It must be written personally and directly by the judge;
4. It must be signed by the judge;
5. Must be given to the branch clerk of court; and
6. Should include basis from factual findings and
conclusions of law
Q: What are the other requirements of a valid judgment?
1. The court must have authority to hear and determine
the case;
2. The court must obtain jurisdiction over the parties or
the res;
3. The parties must have been given an opportunity to
adduce evidence; and
4. The evidence must have been considered by the
tribunal in deciding the case.
Do not forget the ruling in Shimizu v. Magsalin. We discussed
this in Rule 17. A final order of dismissal under Rule 17,
which is generally a dismissal with prejudice, is void if there
is no explanation how and why the case was dismissed by
failure to prosecute.
Also, you should take note; these requisites under Rule 30,
Section 1 apply only to judgments or final orders. It does not
apply if the order is not with prejudice.
Q: A case is pending in RTC Davao under Judge A. He
presided during the presentation of evidence by both
parties. After presentation of evidence, Judge A retires.
Who will decide the case?
The successor judge takes over and decides the case.
If the former judge makes the decision and turned it over to
the clerk of court, who then promulgates it and sends the said
decision by mail, that judgment is void.
Q: What if Judge A is transferred from RTC Davao to
RTC Manila, can he pen the decision and send it to his
former sala?
Under the old Judiciary Act, that is a valid judgment. If the
judge who tried the case is subsequently transferred, he retains
authority to try the case and render a valid judgment thereon.
Q: Do we still follow the old Judiciary Act in this regard?
Yes. It is still in force insofar as its provisions are not in
conflict with BP 129. Since this situation is not covered by BP
129, then it is still a valid provision.
Q: What if Judge A is promoted to become a Justice of the
CA, can he validly pen the judgment?
No. He can no longer decide the case. It is only when the trial
judge who has heard the case is given a new assignment to a
coordinate court shall the Judiciary Act of 1948 will give him
authority to render a valid decision.

Entry of Judgment
We have a new concept of entry of judgment. Under Rule 36,
entry of judgment takes place by operation of law. Even if
there is no physical or actual entry of
judgment, under
Rule 36, the judgment is deemed entered upon the expiration
of the period to appeal if no appeal is perfected. Hence, if no
appeal is perfected, right after the expiration of the 15/30-day
period as the case may be, that judgment is
AUTOMATICALLY entered, and becomes final and
executory. Even if the clerk of court enters that in the records
a year later, it is not the physical entry on the record by the
clerk of court that will reckon the entry of judgment.
Q: Why do we consider entry of judgment as a very
important procedural principle?
In Rule 39, if a judgment has become final and executory, then
the court has the ministerial duty to grant a motion for
execution and to order execution of the judgment. In Rule 39
also, there is a period fixed for that judgment to be executed.
The first five years from entry is the period to execute the
judgment via a motion, and the second 5-year period is for the
revival of the judgment. We are more interested in the first 5year period within which to execute the judgment through a
motion.
If we reckon period under Rule 39, insofar as the first 5-year
period is concerned, it is 5 years from entry of judgment. This
is why the principle of entry of judgment is very important in
implementing the succeeding procedural principles relating to
execution of judgment, and also in determining if a particular
remedy has been availed of on time.
Let us take another example aside from Rule 39. If you recall,
relief of judgments has two periods to be taken into account;
60 days from notice and 6 months from ENTRY of judgment.
Q: What are those which are not considered as decisions?
1. Resolutions of the Supreme Court denying the
petitions to review decisions of Court of Appeals.
2. Minute Resolutions if issued by SC denying or
dismissing a petition or a motion for reconsideration
for lack of merit, it is understood that the challenged
decision or order is deemed sustained.
3. Interlocutory Orders those that determine incidental
matters that do not touch on the merits of the case or
put an end to the proceedings, e.g. Order denying a
motion to dismiss, granting an extension of time or
authorizing an amendment.
Dean Albano: Minute resolutions are considered as res
judicata with respect to the same subject matter and the same
issues concerning the same parties. It is not binding precedent
if it involves other parties or another subject matter (citing
Nationwide Security and Allied Services v. Valderama).
Q: What is a judgment without trial?
The theory of a summary judgment is that although an answer
may on its face appear to tender issuesrequiring trialyet if
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it is demonstrated by affidavits, depositions, or admissions


that those issues are not genuine, but sham or fictitious, the
court is justified in dispensing with the trial and rendering
summary judgment for the plaintiff. The court is expected to
act chiefly on the basis of the affidavits, depositions,
admissions submitted by the movants, and those of the other
party in opposition thereto. The hearing contemplated (with
10-day notice) is for the purpose of determining whether the
issues are genuine or not, not to receive evidence on the issues
set up in the pleadings. A hearing is not thus de rigueur. The
matter may be resolved, and usually is, on the basis of
affidavits, depositions, admissions. Under the circumstances
of the case, a hearing would serve no purpose, and clearly
unnecessary. The summary judgment is justified, considering
the absence of opposing affidavits to contradict the affidavits.
Interlocutory Judgments
Other sections of Rule 36 give us other classifications of
judgment.

So if you come across that term in your examinations,


interlocutory judgments, and you find the use of
interlocutory and judgment to be in conflict with one
another, you apply the following view: A judgment,
technically, cannot be interlocutory. It is an adjudication of the
merits. If you characterize a judgment as interlocutory, it is
only to emphasize that the judgment, although it resolves the
merits of the case, cannot be appealed without the permission
of the trial judge.

OTHER KINDS OF JUDGMENTS


Q: What are the different kinds of judgment under the
Rules?
1. Judgment based upon a compromise
One conferred by the court on the basis of a
compromise agreement entered into between the
parties. This is known also as a judgment by consent.

Q: What is a separate judgment?


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

2.

Judgment by confession
It is one rendered by the court when a party expressly
agrees to the other partys claim or acknowledges the
validity of the claim against him. Do not confuse this
with confession of judgment. This is also known as a
judgment relicta verificationem, cognovit actionem,
or even cognovit actionem relictu verificetione.

Q: What are several judgments?


These are rendered by a court against one or more defendants
and not against all of them, leaving the action to proceed
against the others.

3.

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.

4.

Clarificatory judgment
It is rendered to clarify an ambiguous judgment or
one difficult to comply with.

5.

Judgment nunc pro tunc (lit. now for then)


A judgment intended to enter into the record the acts
which had already been done, but which do not
appear in the records. Its only function is to record
some act of the court which was done at a former
time, but which was not then recorded, in order to
make the record speak the truth, without any changes
in substance or any material respect.

6.

Judgment sin perjuicio (lit. without prejudice)


A judgment without a statement of the facts in
support of its conclusion. This is not allowed.

7.

Judgment by default
Rendered by the court following a default order or
after it received, ex parte, plaintiffs evidence.

8.

Judgment on the pleadings


Proper when an answer fails to tender an issue
because of a general or insufficient denial of the
material allegations of the complaint or when the
answer admits the material allegations of the adverse
party's pleading.

9.

Summary judgment
One granted by the court for the prompt disposition
of civil actions wherein it clearly appears that there
are no genuine issue or controversy as to any material
fact.

The need for this classification of judgment stems from the


principle of civil actions that encourage joinder of courses of
action. If there are several causes of action embodied in a
complaint, it is proper for the court after the trial of a
particular cause of action, that it should render a
judgment for that particular cause of action. If there is
joinder of parties, the court has also the prerogative to
render a separate decision concerning a particular party if
his claim has already been terminated when the
presentation of evidence on his claim is finished.
These are decisions that are exceptional, in the sense that we
expect a trial court to make only one judgment in one
particular case. It is unusual for the court to render several
decisions involving one particular case. That is why, even if
Rule 36 authorizes the court to promulgate separate or several
decisions, if you will go to Rule 41, Appeal From The
RTCs, in Section 2, it is mentioned that if the court renders
separate or several judgments, although we call these as
judgments, they are not appealable.
These parties will have to wait until the court finally decides
the case in its entirety, unless the court allows the appeal to
continue. Usually, the court does not allow it, because that will
lead to a situation where several appeals emanate from one
case, which is also frowned upon by the SC. There should
only be one decision in a particular case, and there should be
one appeal if a party decides to appeal.
This is also the reason why these decisions are sometimes
referred to as interlocutory judgments, because like
interlocutory orders they cannot be appealed by express
provision of Rule 41, although they can be validly rendered by
the court.

10. Several judgment


It is one rendered by a court against one or more
defendants and not against all of them, leaving the
action to proceed against the others.
11. Separate judgment
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It is one rendered disposing of a claim among several


others presented in a case, after a determination of
the issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence which is the subject matter of said claim.
12. Special judgment
One which can only be complied with by the
judgment obligor because of his personal
qualifications or circumstances or one that requires
the performance of an act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts
Applicable in cases of:
a) Conveyance, delivery of deeds, or other
specific acts, vesting title;
b) Sale of real or personal property;
c) Delivery or restitution of real property;
d) Removal of improvements on property subject
of execution; or
e) Delivery of personal property.
14. Judgment on demurrer to evidence
A judgment rendered by the court dismissing a case
upon motion of the defendant, made after plaintiff
has rested his case, on the ground that upon the facts
presented by the plaintiff and the law on the matter,
plaintiff has not shown any right to relief.
15. Conditional judgment
It is one the effectivity of which depends upon the
occurrence or non-occurrence of an event.
16. Final judgment
One which disposes of the whole subject matter or
terminates the particular proceedings or action,
leaving nothing to be done by the court but to enforce
by execution what has been determined.
17. Memorandum decision
One in which the appellate court may adopt by
reference, the findings of facts and conclusions of
law contained in the decision appealed from. It is
found in Rule 51.

Q: Can the defendant resort to Rule 65 on the ground that


the court has gravely abused its discretion amounting to
lack or excess of jurisdiction?
The defendant can try, but he should prove that there really is
grave abuse of discretion.
Under the Rules, if the defendants motion for judgment on
demurrer to evidence is denied, it is the duty of the defendant
to present now his own evidence. So he has two remedies he
may either present his own evidence, or make use of Rule 65.
But remember, Rule 65 may be used only if there is grave
abuse of discretion amounting to lack or excess of jurisdiction
on the part of the court. It cannot be used willy-nilly,
otherwise there will be serious consequences.
Demurrer to Evidence in a Civil and Criminal Case
Remember the rules of demurrer to evidence in civil procedure
and always compare them to demurrer in a criminal case.
These topics are usually involved in Bar Examinations.
In a civil case, if a defendant files a motion for the dismissal
of the complaint based on insufficiency of evidence, and that
motion is denied, what the defendant will do is to go ahead
with the trial and present his evidence. After the defendant has
rested, the court will render the decision. The decision is just
an ordinary judgment on the merits of the case under Rule 36.
It is no longer a special type of a judgment.
But if the trial court grants the motion, it means the court will
order the dismissal of the case. The dismissal is a judgment on
the merits of the case. The winning party is the defendant. The
plaintiff can appeal the dismissal.
Usually, if the trial court is the RTC, it will be brought to the
CA. So, it is brought to the CA. The CA will have to review
the case based solely on the records transferred to it by the
RTC. The records will show that the defendant has not
presented any evidence at all. Right away, the defendant will
be at a disadvantage when the case is reviewed by an appellate
court. The court will review only the evidence presented by
the plaintiff. There is a great possibility that the CA will not
agree with the trial court, and will reverse the dismissal of the
case.

DEMURRER TO EVIDENCE IN CIVIL CASES


In a judgment on demurrer to evidence, only the plaintiff
presented evidence. The judgment of dismissal is based on the
insufficiency of evidence to support the claim. This is the only
ground.
When the plaintiff rests his case, the defendant, instead of
presenting his evidence, files a Motion for Judgment on
Demurrer to Evidence. The defendant asks the court for an
order to dismiss the case based on the ground that the plaintiff
failed to show right of relief, that there is insufficiency of the
plaintiffs evidence. What the defendant is saying is that there
is no preponderance of evidence to support the plaintiffs
claim.
The court will have to resolve the motion. The court will
either grant or deny the motion. If the court denies the motion,
the court in effect tells the defendant that the plaintiffs
evidence is adequate. What the defendant has to do now is
not to appeal, because the denial of a motion for judgment
on demurrer to evidence is interlocutory. No appeal is
allowed.

If the CA reverses the order of dismissal by demurrer to


evidence and the CA tells the parties that the evidence
submitted is adequate, CA simply render its own decision on
the merits of the case, relying solely on the evidence submitted
by the plaintiff.
The defendant cannot ask the CA to present his evidence. It is
not proper since the evidence should have been presented in
the trial court. The CA, as a reviewing court, will only rely on
the records transmitted to it by the RTC.
Q: May the defendant argue that under BP 129, the CA is
expressly authorized to receive evidence?
No. The defendant cannot argue that the CA is authorized to
receive evidence under the provisions of BP 129. Under BP
129, the CA is allowed to receive evidence if it acts in exercise
of its original jurisdiction, which is not the case in this
instance as the CA is acting under its appellate jurisdiction.
Although BP 129 also confers authority on the CA to receive
evidence even in appeal of cases from lower courts, the
conferment of authority while acting as an appellate court is
only on one instance, only on grant of motion for new trial

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based on newly-discovered evidence. It will not apply to


demurrer to evidence. The evidence the defendant will present
is hardly NDE as the defendant had these pieces of evidence
during the trial in the RTC. This is why in demurrer to
evidence in civil cases, the defendant waives his right to
present his evidence when the trial court grants his motion and
the case is dismissed but the dismissal is reversed on appeal.
Now we compare this to demurrer to evidence present in a
criminal case.
After the prosecution has rested its case, the accused can also
file a motion for judgment on demurrer to evidence. But there
is one requirement in a criminal case not found in a civil case:
the accused should get leave of court if the accused wants to
preserve his right to present evidence once the motion is
denied by the trial court.
If the accused fails to get leave of court before filing the
motion, and the motion is subsequently denied, then the
accused has waived his right to present his evidence in the trial
court. The trial court will not allow the accused to present his
evidence, and the next phase will be a judgment of conviction,
meaning that the evidence presented by the prosecution is
adequate to convict the accused, that the evidence has met the
quantum of evidence, i.e., proof beyond reasonable doubt. No
leave of court is required in demurrer to evidence in civil
cases.
In a criminal case, demurrer to evidence can be initiated either
by the accused or the court itself motu propio. The idea of
demurrer to evidence can come from the court. So if the
prosecution has rested, the court can suggest to the accused to
file a motion for judgment on demurrer to evidence. If the idea
comes from the court, the accused should file because it is the
court that already encourages you to file the motion. That
means to say, even to the court, the prosecutions evidence
failed to meet the quantum of evidence required to convict the
accused. In a civil case, the court cannot initiate the idea to
have demurrer to evidence. It should come from the mind of
the defendant himself.
In a criminal case, if the demurrer to evidence is granted by
the court, the information will be dismissed and the dismissal
is tantamount to acquittal of the accused. The prosecution may
no longer appeal, nor Rule 65 availing, because double
jeopardy has set in.
Take note, to clarify, there can be no appeal as to the dismissal
of the information, but there can be an appeal as to the civil
aspect of the criminal case. In a criminal case, if the trial court
dismissed the civil aspect, the plaintiff may appeal the
dismissal as a general rule.

JUDGMENT ON THE PLEADINGS


Q: When is there a judgment based on pleadings?
Where an answer fails to tender an issue, or otherwise admits
the material allegations of the adverse partys pleading, the
court may, on motion of that party, direct judgment on such
pleading.
For example, if the defendant answered in this wise, I admit I
owe the plaintiff. I admit I have not paid him, it is clear that
there is no issue. The defendant admits the allegations in the
complaint.

Another example, if the defendant answered: I deny that I


owe the plaintiff the loan alleged to have been obtained by me.
I deny the fact that I am liable to pay any obligation in favor
of the plaintiff. There is still judicial admission and therefore
no probanda because these are general, not specific, denials.
The denial must be specific or else it is not a denial at all.
Q: What if the defendant did not answer?
If the defendant did not answer, judgment based on the
pleadings is not proper. The appropriate judgment, upon
proper prior process such as a motion to declare the defendant
in default, should be a judgment by default.
Q: May the initiative to render this kind of judgment be
done motu proprio?
No. The judgment must be on motion of the claimant. It
cannot be rendered by the court motu propio.
Q: What are cases where judgment based on pleadings will
not apply?
A:
1. Actions for the declaration of nullity of a marriage
2. Actions for annulment of marriage
3. Actions for legal separation
In the above cases, the material facts alleged in the complaint
shall always be proved
Q: The defendant filed a motion for judgment of the
pleadings, although the answer has no counterclaim. What
will be the effect thereof?
SC held that if the movant defendant is asking for judgment on
the pleadings, the defendant is deemed to be admitting all the
allegations in the complaint.
In judgment on the pleadings, there is an answer filed by the
defendant. The answer, however, either admits the allegations
in the complaint; or, even if the answer in form denies the
allegations in the complaint, the denial is not specific as
required in the Rules. We are made familiar again with the
principle that when a general denial is made, that is deemed to
be an admission, which is the reason why a court need not
conduct a pre-trial nor a trial.
If the plaintiff receives a copy of the answer which does not
set up any defenses at all, but instead admits all the allegations
in the complaint, what the plaintiff needs to do is to file a
motion for a judgment on the pleadings.
In other words, if we follow the inherent nature of a judgment
of the pleadings, the movant should be the plaintiff in a
complaint or a permissive counterclaim or cross-claim. There
should be a motion initiated by the plaintiff asking the court
for a judgment on the pleadings.
Q: Is there any prohibition against the defendant who has
filed an answer to also move for judgment on the
pleadings?
There is really nothing said in the Rules that prohibit a
defendant, upon filing of his answer, to file a motion for a
judgment on the pleadings. But it seems to be a crazy idea for
the defendant himself to move for a judgment on the
pleadings.
In a case brought to the SC where it was the defendant himself
who moved for a judgment on the pleadings, although the
answer was purely an answer without any counterclaim, crossLive by the boobies, die by the boobies! You are currently viewing page 57!

claim or third party complaint, but containing several


meritorious defenses, the SC ruled that if a defendant is a
movant for a judgment on the pleadings, the defendant is
deemed to have admitted the allegations contained in the
complaint. So it is very risky for a defendant to be a
movant for a judgment on the pleadings. Even if his answer
is properly crafted, even if there is a specific denial, if it was
the defendant that filed a motion for a judgment on the
pleadings, the defendant will be considered to have admitted
all the allegations in the complaint. So, the court will render a
judgment in favor of the plaintiff.

Q: There is a difference between the claimant and the


defendant in summary judgment because the defendant
may move for summary judgment at any time. Since a
summary judgment assumes that there is an issue, albeit
not genuine, what could be the issue if there is yet no
answer?
If you take a look at Section 11, Rule 8, unliquidated damages
shall not be deemed admitted even if not specifically denied.
Therefore, even if there is no answer, unliquidated damages is
automatically an issue and may be subject to summary
judgment.

A judgment on the pleadings is also a judgment on the merits.


It should comply with the essentials of a valid judgment under
Rule 36.

Q: What is the difference between a judgment on the


pleadings and a summary judgment?
If you compare the provisions of a judgment on the pleadings
to that of a summary judgment as contained in Rule 34, we
will immediately notice that there is a section which talks
about a summary judgment by plaintiff and a summary
judgment by defendant. Unlike in judgment on the pleadings,
where we expect the movant to be a plaintiff, in a summary
judgment, the law gives either parties the option to file a
motion for summary judgment. These motions are expressly
recognized in the rules.

Q: What if the defendant filed a Motion to Dismiss but his


defenses are defect in the certificate of non-forum
shopping, no legal to capacity to sue, and fortuitous event?
Is judgment on the pleadings proper?
Dean Albano: Yes. The defendant admitted having entered
into a contract and that it was still unpaid. His answer fails to
tender an issue or otherwise admits the material allegation of
the adverse partys pleading (citing Asian Construction and
Dev. Corp. v. Sannaedle Co., Ltd.).

SUMMARY JUDGMENTS
Q: What is a summary judgment?
A summary judgment or accelerated judgment is a
procedural technique to promptly dispose of cases where the
facts appear undisputed and certain from the pleadings,
depositions, admissions and affidavits on record, of for
weeding out sham claims or defenses at an early stage of the
litigation to avoid the expense and loss of time involved in a
trial. Its object is to separate what is formal or pretended
denial or averment from what is genuine and substantial so
that only the latter may subject a party-in-interest to the
burden of trial. Moreover, said summary judgment must be
premised on the absence of any other triable genuine issues of
fact. Otherwise, the movants cannot be allowed to obtain
immediate relief. A genuine issue is such issue of fact which
requires presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim.
Q: What are the requisites of summary judgments?
1. There must be no genuine issue as to any material
fact, except for the amount of damages; and
2. The party presenting the motion for summary
judgment must be entitled to a judgment as a matter
of law.
Q: When is a claimant allowed to file for summary
judgment?
A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part thereof.
Q: When is a defendant allowed to file for summary
judgment?
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits, depositions or admissions for
a summary judgment in his favor as to all or any part thereof.

In a summary judgment, unlike a judgment on the pleadings,


the court will conduct a summary hearing. In judgment on the
pleadings, the court will not conduct a hearing at all, as the
court will simply rely on the contents of the complaint and the
answer. Since there is an issue raised by the defendant in
summary judgment, the court will need to conduct a summary
hearing in order to determine whether that is a sham issue or a
genuine issue. There is need by the parties to present evidence
in order to support their respective issues. The parties could
present affidavits, depositions, or any other document that the
parties may present. What the court will not allow is a fullblown hearing on the matter as to whether the issue is genuine
or not. This issue will have to be proven only by documentary
evidence, affidavits or evidence taken under modes of
discovery.
Q: Why will the court render a summary judgment?
The court will not conduct a full blown trial envisioned in
Rule 30. In a summary judgment designed not to conduct fullblown trial, according to jurisprudence, there is an issue in the
answer submitted by the defendant, but it turns out to be a
sham issue. Therefore, there is no need for the court to
conduct a full-blown trial on a sham issue. Whether or not the
issue is genuine will depend upon the circumstances of the
case.
An example of a summary judgment rendered by a court is
where the court found that the issue is not really genuine
although there is really an issue raised in the answer.
A complaint was filed by the plaintiff for an unpaid loan. The
complaint carried with it an actionable document attached to
the complaint, a printed promissory note. The promissory note
contained a blank as to the date of the maturity of the loan,
which was unfortunately not accomplished. So, the promissory
note is indeterminate as to the date of maturity. The defendant
filed an answer and set up the defense that the filing of the
complaint was premature because the debt has not matured,
and the defendant pointed out that the blank wherein the date
of maturity was supposed to be indicated has no entry. The
defendant interposed that the court should first fix the maturity
date of the complaint before the plaintiff can file a complaint
for recovery of the loan. The plaintiff filed a motion for

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summary judgment. And the court agreed with the plaintiff


that the defense set up by the defendant, that the maturity of
the loan has not yet happened, is really a sham issue, as the
issue is in conflict with the provisions of substantive law. The
SC said that if there is a promissory note without a date fixed
as to maturity, that is a note payable on demand, as provided
in the NCC. If there is already a demand made by the creditor,
and the debtor failed to comply with that demand, it means
there is already a breach of the obligation by the debtor.

their differences. They signed a compromise agreement to


the effect that the debtor fully recognizes his obligation to
the creditor, but they converted the payment of the loan to
that of payment in installments while fixing the amount of
installments at the same time. They did not submit the
compromise agreement for court approval but instead
moved for the dismissal of the case, which the court
complied. The debtor subsequently commits a breach in
the payment of installments.

Q: What if the court rendered a judgment based on the


pleadings when what was in the motion was for a summary
judgment?
SC held that whether it is called a summary judgment or
judgment on the pleadings, it does not really matter at all, as
there is adjudication on the merits. The error was purely
formal. SC said that the error in the determination whether the
judgment was a summary judgment or a judgment on the
pleadings will not prejudice the defendant, and therefore
cannot be declared as void. After all, it is a judgment that
complies with the requirements of Rule 36. There is a
determination of the rights and obligations of the parties
involved in the cause of action.

Q: After the breach, can the creditor go back to the court


and ask for revival of the case?
No.

Partial Summary Judgment


There is a summary judgment that is similar to separate
judgment and several judgments insofar that it is interlocutory.
If you read the Rule on summary judgment, there is such a
thing as partial summary judgment. If the summary judgment
is a partial summary judgment, it is interlocutory because it
does not dispose of the case completely. It disposes only of the
issue that was raised before the court. It cannot be appealed.
Q: Are summary judgments available in real actions?
Yes. The SC has abandoned the old doctrine that summary
judgments cannot be available in actions for recovery of
property. The SC has decided in several cases which affirmed
the availability of summary judgments involving recovery of
title to or possession of real property. It is available in real or
personal civil actions as long as the requisite that the issue is
not a genuine issue is present.

JUDGMENT BASED ON A COMPROMISE


Aside from the special kinds of judgments provided for in the
Rules, there is a special kind of judgment provided for in the
NCC. There are several provisions in the NCC which
encourage the parties to enter into an amicable settlement or
compromise. The NCC considers a compromise as a contract
between the parties, and therefore, if the parties entered into a
contract where they signed a compromise agreement, they do
not have to submit that agreement to a court for approval.
According to the SC, if there is a compromise agreement
signed by the parties, since that is a contract, then that is the
law binding between the parties (mutuality of contracts).
There is no need for court approval to validate the
compromise agreement. For purposes of validity, we follow
the provisions of the NCC. It will be treated like any other
contract. As long as the parties give their consent freely, i.e.,
their consent is not vitiated, and their signatures appear in the
agreement, then that will be the contract between them,that
will be the law between the parties.
There is a case for recovery of P2M loan filed by the
creditor against the debtor. They both agreed to settle

Q: Can the creditor file a new case for collection against


the debtor for recovery of the installment or of the whole
account if in case there is an acceleration clause?
Yes. It is not barred, as the cause of action of the creditor is
now different from the previous case filed. His claim is now
based on a compromise agreement, not a loan.
In order to enforce payment as provided in the written
compromise agreement, the creditor has to file a complaint
against the defendant debtor. They will have to undergo the
same process when the first case was filed concerning the
loan. But this is a case of a compromise agreement which does
not carry with it the approval of the court.
The opposite is when there is a compromise agreement signed
by the parties, but this time, the parties do not jointly move for
the dismissal of the complaint, but instead submitted the
compromise agreement to the court for approval. The court
renders what we call as a decision based on a compromise
agreement. If the debtor commits a breach in the payment as
agreed upon, what the creditor can do is to simply file a
motion for execution in the court. The judgment based upon a
compromise is a judgment on the merits. And under the NCC,
a judgment based upon a compromise is immediately
executory. There is no appeal.
Q: May the court cite the party in contempt if he does not
comply with the writ of execution of the judgment based
on a compromise?
Dean Albano: Yes (citing Gadrinab v. Salamanca).
Q: Does it mean to say that a party of a compromise
agreement has no recourse at all to challenge the validity
of the judgment based upon a compromise agreement?
There is a remedy under Sec. 1 Rule 41. The defendant may
file a motion to set aside the compromise agreement based on
the ground of vitiated consent. That is the remedy in order a
judgment based upon a compromise.
Remember, this is not an appeal. This is a motion to the trial
court to set aside the compromise agreement. It is still the trial
court that will hear the motion.
Q: Supposing the court does not set aside the judgment
notwithstanding the motion, can the defendant appeal?
No. Under the Rules, an order denying the motion is in the
nature of an interlocutory order which is inappealable.
Q: What is the remedy in cases where appeal is not
allowed?
As a general rule, where the judgment or final order is not
appealable, the aggrieved party may file the appropriate
special civil action under Rule 65.

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There is a remedy under the Rules of Court to assail an order


denying the motion to set aside the judgment under a
compromise. It is Rule 65.
The aggrieved party may not avail of Rule 65 directly if there
is a judgment based on compromise. He has to first move to
set aside the compromise agreement based on vitiation of
consent. If that motion is denied, he may now make use of
Rule 65, but only if he can prove the court gravely abused its
discretion amounting to lack or excess of jurisdiction.
The same remedies are also available for a judgment by
confession or a judgment by consent.
Q: Why is appeal not allowed?
Appeal is not allowed because a judgment based on
compromise is final and executory. It is in the NCC. A
compromise agreement is always final and executory and has
the effect of res judicata.
Q: May judgment be subject to a compromise agreement?
Yes. The parties can always change a decision rendered by a
court of justice, even if that decision has become final and
executory by the simple expedient of entering into a
compromise agreement.
If, for example, the judgment rendered in favor of the plaintiff
was for P1M, but both the plaintiff and defendant agreed to
decrease it to P700K, the compromise agreement is valid even
if the judgment for P1M has become final and executory. The
judgment was novated by agreement of the parties.
Q: What if the judgment was rendered by the SC?
The same rule applies even if the judgment was rendered by
the SC, the highest court of the land.

Compare the remedies available to a party in a civil case to


that in a criminal case. The consequences of availing a remedy
in a civil case might be different in criminal cases. Also, there
are remedies which are applicable in civil cases which might
not be applicable in a criminal case.
For comparison, these are the remedies in a criminal case.
1. Before the judgment of conviction becomes final:
a. Motion for New Trial
b. Motion for Reconsideration
c. Appeal
d. Reopening of a case due to NDE
2. After the judgment of conviction becomes final:
a. Habeas Corpus
b. Petition for Certiorari under Rule 65 in exercise
of judiciary under its equity jurisdiction
Reopening of a Civil Case
Q: Is reopening available in civil cases?
Reopening is also available in civil cases but before the
judgment is rendered. If judgment is rendered, it is not
available in a civil case. Jurisprudence requires that no
judgment has yet been handed down by the court. The
termination of the trial starts the period to move for this
remedy. As long as the judgment has not been rendered, any
party can move for reopening of the case.
Q: What are the grounds for reopening of civil cases?
There are no grounds given in the Rules of Court. It is not
expressly recognized, reopening is just an accepted remedy in
jurisprudence. It is a remedy availed of after trial has ended
but before the judgment is rendered.
Q: What is the purpose of reopening a case?
It is allowed in the interest of justice. It allows the movant to
offer in evidence those that he may have forgotten to present
during the trial, or additional evidence as the case may be.
Q: When should there be reopening in civil cases?
It is available before the court renders a decision or a final
order. So it occurs between the time when the parties have
submitted their evidence and the time when the court renders
the decision.

REMEDIES TO ASSAIL A JUDGMENT


Q: What are the available remedies to the aggrieved party
after rendition of judgment?
The remedies against a judgment may refer to those remedies
before a judgment becomes final and executory and those
remedies after the same becomes executory.
1. Before a judgment becomes final and executory, the
aggrieved party may avail of the following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the losing party
may avail of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari under Rule 65; and
d. Collateral attack of a judgment.

Q: Is it really a product of jurisprudence?


It may be a product of jurisprudence, but it seems it is now
expressly recognized by the Rules. If you take a look at
summary procedure or small claims proceedings, one of the
prohibited motions is reopening of a case. That means to say
that even in civil cases, reopening is recognized as a remedy.
Q: How about reopening in criminal cases?
It is expressly allowed in the Rules. Under criminal procedure,
the court can reopen the case even if the accused has been
convicted so long as the judgment of conviction has not
become final. So it may not be accurate to consider entirely
reopening as a product only from jurisprudence.
Q: Is reopening allowed in special proceedings?
Yes. For example, in settlement of the estate, even if the
proceedings have been closed, if certain properties have been
left out or if certain heirs have been deprived in the
proceedings, they can still ask for the proceeding to be
reopened. They cannot file a separate proceeding for another
settlement because this is prohibited by law. There could be
only one settlement court.
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Q: Is an action to annul judgments available in criminal


cases?
No. If the convict feels that his detention, although supported
by a judgment of final conviction, is unlawful, the remedy he
may avail of is Habeas Corpus, not a petition to annul
judgment. The SC has made this very clear. Rule 47 applies
only to a civil case. It cannot apply to a criminal case. The
equivalent remedy in a criminal case is a petition for habeas
corpus. The SC in the exercise of its equity jurisdiction cold
also entertain a Petition for Certiorari under Rule 65 even if
the judgment of conviction has become final and executory
Q: May a petition for certiorari under Rule 65 be
entertained even if the judgment of conviction has long
been final?
It can be had when the petition is applied in order for the
judiciary to rectify a wrong under its equity jurisdiction. A
situation that calls for a special remedy will always be
answered by a petition for certiorari. Certiorari is a remedy in
both a civil or criminal case in order to challenge a final and
executory judgment if the situation calls for the SC to exercise
its equity jurisdiction. That is why in the enumeration of
remedies, in either criminal or civil case, we include certiorari
under Rule 65.

NEW TRIAL OR RECONSIDERATION


Q: What is a pro forma motion?
A: A pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as a
motion intended to delay the proceedings.
In Rule 37, for civil cases, a motion for new trial or
reconsideration must strictly comply with the requirements of
a motion so that such motion will not fall under the concept of
a pro-forma motion.
Pro forma motion for reconsideration in civil cases is almost
always denied. A pro forma motion for reconsideration does
not suspend the running of the reglementary period to appeal,
and if the denial of the motion comes after the expiration of
the period to file an appeal, entry of judgment takes place by
operation of law under Rule 36. Upon entry of judgment, the
losing party loses the remedy of appeal and is left only with
the after-judgment remedies of petition for relief from
judgment, annulment from judgment or a petition for certiorari
under Rule 65.
Take note that in criminal procedure, nothing is mentioned
about a pro forma motion for new trial or reconsideration. The
court cannot simply discard the motion for new trial or
reconsideration for non-compliance even if the motion does
not comply with the requirements of a motion. The motion for
reconsideration or new trial will always stop the running of the
period to appeal. The idea for the accused to file motion for
new trial or reconsideration could come from the court. The
court can even initiate a new trial or reconsideration as long as
the accused gives his consent.
Q: Who initiates a motion for new trial or
reconsideration?
A motion for new trial or motion for reconsideration in civil
cases is always initiated by the losing party.

Q: What are the grounds for a motion for new trial or


reconsideration?
The grounds for motion for new trial are completely different
from grounds for a motion for reconsideration. These motions
are distinct and different from one another.
Under a Motion for New Trial:
1. Extrinsic fraud, accident, mistake or excusable
negligence (FAME) which ordinary prudence could
not have guarded against and by reason of which the
rights of the aggrieved party was impaired; or
2. Newly discovered evidence, which could not with
reasonable diligence, have been discovered and
produced at the trial, and which if presented, would
probably alter the result.
Under a Motion for Reconsideration:
1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or
final order; or
3. The decision or final order is contrary to law.
Q: Let us say a losing defendant/accused is advised by his
counsel that they have three remedies while the period of
appeal was running, namely, motion for reconsideration,
motion for new trial and appeal. The defendant/accused
told the counsel to avail of all three. Thus, the counsel filed
a motion for new trial, a motion for reconsideration and
lastly, an appeal. The trial court received all three. The
appeal was duly perfected. What remedy will the court
entertain?
SC held that if the aggrieved party files or perfects an appeal
during the pendency of his motions for new trial and
reconsideration, the motions shall be deemed abandoned.
It is really inconsistent for an aggrieved party to file a motion
for new trial or reconsideration, and while waiting for the
resolution of his motion, perfects an appeal. It will render the
motions academic. The court, upon perfection of the appeal
and upon payment of the docket fee, will lose jurisdiction over
the case, and what will remain with the court is residual
jurisdiction.
Q: The winning party, after receiving a copy of the
decision, moved for execution pending appeal. It is a
matter of discretion to the court founded on special
circumstances. The losing party filed a motion for new
trial while the former motion was pending. Can the court
grant the motion for execution pending appeal?
No. The trial court should resolve the motion for new trial first
before the motion pending appeal is resolved, even if the
motion pending execution is for special reasons. Motion for
reconsideration or motion for new trial of the aggrieved party
should be given preference over any other motion by the
prevailing party.
Fraud, Accident, Mistake, and Excusable Negligence
(FAME)
If a motion for new trial is based on FAME, it must be
accompanied by an affidavit of merit. The affidavit should be
executed by persons with personal knowledge surrounding the
circumstances of FAMN.
It is not correct to say that in a motion for new trial, we always
need an affidavit of merit. We need affidavit of merit only if
the ground relied upon is FAME. Motion for new trial on
ground of NDE will not need an affidavit of merit, merely the
affidavit of the new witness who will give testimony, or an

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authentic copy of document or object evidence to be


presented.
Extrinsic Fraud
The principle in new trial in the case of fraud, the fraud
committed must always be extrinsic fraud. It cannot be
intrinsic fraud. If the fraud alleged in the motion is intrinsic,
the motion will be denied.
Rule 37 gives us a good basis for making a distinction
between these two kinds of frauds. There are two clauses to
justify extrinsic fraud as a ground for new trial compared to
extrinsic fraud: which ordinary prudence could not have
guarded against and by reason of which such aggrieved
party has probably been impaired in his rights.
If we rely solely on Rule 37, the court has allowed lawyers to
cheat one another, so long as cheating is limited only to
intrinsic fraud, which could be prevented through the use of
ordinary diligence.
For instance, the plaintiff wins the case because his cause of
action is supported by a document showing his title to recover
from the defendant. But later on, the aggrieved party is able to
prove that the document presented by the plaintiff, and which
is the basis for the judgment in his favor, is a forged
document. Forging a document is a crime. But in a trial, the
admission of a forged document will not be a ground for a
new trial, or even as NDE. This is because the presentation of
a forged document by the plaintiff could easily be avoided by
the defendant through the exercise of ordinary diligence. If
confronted with such document, and the defendant is not sure
as to its authenticity, the defendant could have called upon
witnesses, such as an expert witness, to prove that such
document was forged. His failure to do so is a waiver of this
fact.
Another instance of cheating in trial which the SC did not
consider as extrinsic is when the prevailing party presented
witnesses who had perjured. But if the aggrieved party relies
solely on the allegation that all the witnesses presented by the
party all committed perjury, that is not a ground for new trial,
that is only intrinsic fraud. The aggrieved party should also
have cheated, he should also have been dishonest. If the
plaintiff presented two perjured witnesses, the defendant
should have called five. So the message given with respect to
extrinsic and intrinsic fraud is that litigants, through their
lawyers, can be dishonest during the course of litigation. But
they should see to it that their cheating will not amount to
extrinsic fraud. They must not deprive the other party of his
day in court, that the other party will have the opportunity to
present his side in court.
That is the life of a lawyer, he is encouraged to be dishonest,
he should be deceptive in his relationship with others lawyers.
Anyway, lawyers will not go to heaven, it is a fact. It is found
in the Bible. But that is only a part of a passage in the Bible.
The additional passage is that lawyers do not go to hell. But
that does not make the life of a lawyer less worthwhile. If a
lawyer cannot go to heaven or to hell, where will the lawyer
go after death? The implication is that a lawyer does not have
a soul.
That is how the SC looks at the situation. In fact the SC in
several cases said we should expect dishonesty in the course
of litigation. We cannot avoid that. SC said that if they allow
every act of dishonesty to be a ground for new trial, there will

never be an end to a litigation, because a lawyer will always


be able to point out to the court certain acts of dishonesty or
cheating in a motion for new trial.
Mistake
The mistake of a lawyer is the mistake of the client. If the
aggrieved party lost the case due to a mistake of the lawyer,
and the party fires his lawyer and gets a new one, the new
lawyer cannot capitalize on the mistake committed by the
former lawyer. We must apply the rule on agency. The act of
the agent is the act of the principal.
There is, however, one situation where the SC relaxed the
application of this principle. The SC said that while it is true
the mistake of the lawyer will always be considered the
mistake of the client, but if the mistake of the lawyer was
tantamount to bad faith, i.e., the lawyer deliberately caused
the loss of the case, then that is a ground for new trial. The
clients rights should be protected in this situation.
Excusable Negligence
The negligence must be so gross that ordinary diligence and
prudence could not have guarded against it. This excusable
negligence must also be imputable to the party-litigant and not
to his or her counsel whose negligence binds his or her client.
Newly Discovered Evidence
This is an adaptation of an American principle called the
Berry Rule: Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and produced at
the trial, and which if presented would probably alter the
result.
Q: What are the requisites of newly discovered evidence as
a ground for New Trial?
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial with reasonable diligence; and
3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight
that if admitted would probably change the judgment.
The requirements state we cannot consider cumulative,
corroborative or impeaching evidence as NDE, as these cannot
alter the result of the case. The recantation of a witness is not
NDE. In fact, the SC has been emphatic in its ruling
continuously that if a witness recants, the recantation should
not even be given any attention at all. If we give attention to
the recantation of a witness, you can expect lawyers to
produce recantations by witnesses who already testified in
court. So, the stand of the court is that the testimony of a
witness given in open court reflects the truth, not the
recantation. The recantation shall not be treated as NDE.
Q: What is forgotten evidence?
If evidence was already available to a party and he was not
able to present it through inadvertence or negligence of his
counsel, that evidence will not be considered as newlydiscovered evidence. It will simply fall within that concept of
forgotten evidence, which is not a ground for new trial.
Compare: Motion for New Trial and Reconsideration
There is a rule allowing only one motion for reconsideration
by the same party, either prevailing or aggrieved party. If that
is denied, a second motion for reconsideration will not be
allowed, even if that second motion for reconsideration is
found on a different ground. The rule against the filing of a
second motion for reconsideration is almost absolute.
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Unlike a motion for new trial, the Rule allows a party to file a
second motion for new trial if found on a ground different
from the one used in the first motion for new trial.

Dean Albano: You should take note of De Leon v. Hercules


Agro Industrial Corp. The SC held that the period to file a
motion for reconsideration is non-extendible, and a motion for
extension of time to file a motion for reconsideration does not
toll the reglementary period to appeal.

But whether it is a motion for new trial or motion for


reconsideration, there is another rule contained in other
provisions where the court will not allow an extension of time
to file motion for new trial or reconsideration. The party must
observe the 15/30-day period.

RELIEF FROM JUDGMENT

Q: What is the effect if the motion for reconsideration or


new trial is granted?
If the motion for reconsideration is favorably acted upon, the
court will simply render an amended judgment. If the court
feels that the judgment is contrary to law or the evidence does
not fully support the judgment, the motion for reconsideration
should be granted to reduce the liability of the aggrieved party,
but the court will only amend the previous judgment in order
to reduce such liability.
If the motion for new trial in a civil case is granted, and such
is not a partial motion for new trial, the judgment will be
vacated. But the evidence presented during the trial will not be
disturbed. There is no need for the witnesses who had testified
in the trial to give their testimony again.
If the motion for new trial granted was that in a criminal case,
the judgment will also be vacated, and all evidence taken
during the trial need to be retaken and witnesses who testified
will be recalled. The grounds for new trial in a criminal case
are serious irregularities or errors committed by the trial court,
not FAME. Even if the evidence taken in court will not be
retaken, there will be a recalling of the witnesses who had
testified during the trial.
Q: What is the remedy of the aggrieved party if his motion
for new trial or reconsideration is denied?
Under Rule 37, it is clearly provided that if a motion for new
trial or reconsideration is denied, the denial cannot be
appealed or be subject to Rule 65. What is to be appealed is
the judgment rendered on the merits, not the order of denial.
Note that Rule 65 is now unavailing in the amended Rules in
Rule 41.
The only remedy is an appeal from the judgment on the merits
that is subject of the denied motion of new trial or
reconsideration. SC said that in appealing the judgment, the
aggrieved party can assign as an error the denial of the trial
court of the motion for new trial or motion for reconsideration.
But he is no longer allowed to file a petition under Rule 65 to
challenge the denial of the motion and appeal at the same
time, which was allowed prior to the amendment of Section1
of Rule 41.
Q: Are there instances where a motion for new trial or
reconsideration is not allowed?
Yes. For example, it is not allowed in summary procedure and
small claims proceedings. It is a prohibited motion.
It is, however, allowed if the aggrieved party in summary
procedure appealed the case to the RTC and from there filed a
motion for new trial or reconsideration against the decision of
the RTC. Since RTC is not governed by summary procedure,
the enumeration of prohibited pleadings and motions in the
circular does not apply to that court.

Under the Rules, a motion for relief from judgment should be


filed within these two periods:
sixty (60) days from receipt of copy of judgment or
notice thereof; and
six (6) months from entry of judgment.
Q: What if the lawyer for the aggrieved party files a
motion for relief from judgment based on FAME when
judgment has not yet been entered? Will the motion be
dismissed?
There was one case when the aggrieved party, before entry,
filed before the trial court a petition for relief from judgment
founded on FAME. The filing of the petition was irregular
because the judgment has not yet been entered. SC held that
the trial court should not have simply denied and dismissed
the motion. What the trial court should have done was to
treat the motion for relief from judgment as a motion for
new trial, because the grounds of both motions are similar.
Even if the lawyer commits an error, and files a petition for
relief from judgment before the judgment was entered, the
court will consider the petition for relief as a motion for new
trial, provided that the petition will carry with it the
requirements needed under Rule 37, i.e., an affidavit of merit
that will prove the presence of FAME. The SC has taken a
liberal attitude on this kind of error by a lawyer. The court will
ignore the error and just have to rule on the merits of that
motion.
Q: Is a petition for relief considered as one that is similar
to that of an annulment of judgment?
It is not so. A petition for relief is not an independent action.
In fact, it is just a continuation of the original case. If we
consider petition for relief a separate action from the original
case, a petition for relief should be filed before an RTC
because it is incapable of pecuniary estimation. But since it is
not so, Rule 38 provides that it should be filed in the same
court which issued the judgment deciding the case. So if the
court that decided the case is an MTC, a petition for relief
could be filed in the same court. If the respondent of a petition
for relief challenged the jurisdiction of an MTC in deciding
the petition for relief on the ground that such petition is
incapable of pecuniary estimation, the reply to that argument
is that a petition for relief is just a continuation of the original
case, not an independent and separate action. Note that the old
docket number is used in the title of the case in a petition for
relief. We also do not pay docket fees.
What is important is the timeframe in which to file a petition
for relief from judgment. The SC has been very strict. Time to
file should be observed. SC has been very strict with the time
frame because the judgment has been entered and has
therefore become final and executory. There is the likelihood
that the winning party may already file a motion for execution
under Rule 39 as a matter of right.
Q: It could happen that the aggrieved party filed a petition
for relief from judgment and the prevailing party also files
a motion for execution of the judgment. Should the court
grant the motion for execution?
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Yes. The court has a ministerial duty to execute the judgment


once the judgment has been entered and has become final and
executory. Motion to execute should be granted once made.
The prevailing party has the right to have the judgment in his
favor enforced.
Q: If the court grants the motion for execution of
judgment because it is a matter of right on the part of the
prevailing party, will it not render academic the relief
from judgment filed by the aggrieved party?
The petition for relief will not be moot and academic simply
because of the granting a motion for execution as a matter of
right. Rule 38 says that the executing court that granted
motion for execution and subsequently entertained a petition
for relief from judgment can issue a TRO or a preliminary
injunction order to stop the enforcement of the writ of
execution.
You might say that in the rule on injunction, an injunctive
relief should be granted by a court higher than the court which
rendered the decision. In this case the court which decided
the case and then subsequently granted the motion for
execution of its judgment shall also issue the injunctive
relief against the carrying out of the writ of execution.
That is one of the peculiarities of Rule 38. The court which
grants the execution of its judgment, as it really has no choice
as it is a matter of right, is the same court which will issue an
injunctive relief against the writ of execution it has previously
issued. If there is no injunctive relief issued by the said court,
its decision will be carried out until fully satisfied. This is an
exception to the principle in injunction where the injunctive
relief should come from a higher court. Here, the same court
which decided the case shall be the one who will issue an
injunctive relief against its own officer from executing the writ
of execution the court has previously issued. That is allowed
in Rule 38.
Q: If the petition for relief is granted, can the prevailing
party appeal the order?
No. The order granting relief is interlocutory, hence
unappealable.
Q: If a petition for relief is denied, the order denying
petition for relief is a final order. Can it be appealed? If
not, what is the remedy?
No, it is a final order which is unappealable under Section 1 of
Rule 41. The remedy of the aggrieved party is to file a petition
under Rule 65, a petition for certiorari or prohibition as the
case may be.
Q: Is Rule 38 an extraordinary remedy?
It depends on how you define an extraordinary remedy.
If you limit the definition of an extraordinary remedy to any
remedy that violates the doctrine of immutability of
judgments, then, yes, it is an extraordinary remedy. Rule 38
may disturb judgments even if they are already final and
executory.
Now, if you limit the definition of an extraordinary remedy to
any remedy which is not a mode of appeal, then Rule 38 is not
an extraordinary remedy.
A petition for relief from judgment is not an independent
action. It is always a continuation of the old case. If the
decision was rendered by the MTC, the petition for relief

should be filed with the MTC. It even uses the same docket
number used by the court in deciding the case.
Furthermore, there is no issuance of summons under Rule 38.
If the trial court finds the petition to be sufficient in form and
substance, the court may issue an order directing the
respondent to file a comment. It will not issue summons. The
respondent who fails or refuses to comment will not be
declared in default. The court will simply proceed with the
hearing of the motion.

APPEAL
Appeal can be a matter of right or a matter of discretion.
Q: What is the remedy if the motion for new trial or
reconsideration is denied?
A: The remedy is to appeal from the judgment or final order
itself subject of the motion for reconsideration or new trial.
The movant has a fresh period of fifteen days from receipt or
notice of the order denying or dismissing the motion for
reconsideration within which to file a notice of appeal. It is no
longer assailable by certiorari.
This fresh period rule, also known as the Neypes ruling, is
derived from Neypes v. Court of Appeals.
Read: Neypes v. Court of Appeals
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 Appeals from MTC to RTC
2. Rule 41 Appeals to RTC
3. Rule 42 Petition for Review from RTC to CA
4. Rule 43 Appeals from quasi-judicial agencies to
CA
5. Rule 45 Appeals by certiorari to the SC
The fresh period rule does not refer to the period within
which to appeal from the order denying the motion for
reconsideration, but the period within which to appeal from
the judgment itself because an order denying a motion for
reconsideration is not appealable.
The last paragraph is really important. Read it again.
Q: Will the fresh period apply to a motion to dismiss under
Rule 16 and a motion for a bill of particulars under Rule
11?
No. These periods will interrupt the period to file an answer
but will not grant a fresh period of 15/30/60 days as the case
may be if denied by the court. If these motions are denied, the
defendant is given the remaining period within which to
respond or file an answer, but this remaining period should not
be less than five days.
Q: What does appeal as a matter of right mean?
It means when he has perfected the appeal within the period to
do so, the appellate court has no other choice but entertain the
appeal, review the decision and render its own decision.
Q: What does appeal as a matter of discretion mean?
When we say that appeal is a matter of discretion, the
appellate court will determine whether the appeal should be
entertained or not. If that discretion is given to the appellate
court, it simply denies to the party the right to appeal to that
court.
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In civil cases, there are three modes of appeal given under


Rule 41:
Ordinary appeal
Petition for Review in the CA
Petition for Review on Certiorari under Rule 45
Q: Lets say there are four defendants. They lost the case.
Defendant 1 appealed but the others did not. What
happens if Defendant obtains a favorable decision from the
appellate court?
As a general rule, it will only benefit the defendant who
appealed his case. The decision of the trial court is already
final and executory on the others who did not appeal.
However, the SC held that there may be an exception in case
the interests of the defendants are intertwined. That is the term
used by the SC intertwined. If their interests are intertwined,
even if only one of them appealed, the decision of the
appellate court will also benefit his co-parties.
Compare this with a scenario where there are two defendants
A and B. A was in default. B, however, won the case and was
able to resist the plaintiffs claim. Will A benefit? Yes, he will
benefit. This is the general rule. This is different from the
scenario in the last paragraph because in that case there is
already a judgment on all of them. Here, in partial default,
there is no judgment yet.
Q: Lets say there are four defendants. There is already a
judgment against them. What happens if Defendant 1
makes use of Rule 37, Defendant 2 makes use of Rule 38,
Defendant 3 makes use of Rule 47, and Defendant 4 makes
use of appeal?
It is possible. Although there is plurality of parties and the
remedies pertain to different time periods (Rule 37 and appeal
should be used before the judgment became final and
executory, while Rule 38 and 47 are available after the fact), it
is possible that they make use of different remedies.
Remember that, as a general rule, appeal is only beneficial to
the person who appealed.
Appeal from the MTC to the RTC
If the origin of the case is the MTC, the only mode of appeal is
an ordinary appeal. Even if the only issue raised is a question
of law, the appeal should be an ordinary appeal to the RTC.
Note that the Rules do not divest the RTC or even the CA to
hear appeals based purely on questions of law. In fact, the
Rules expressly say that an appeal to the RTC from the MTC
could either involve both questions of fact and law or just
purely questions of law.
An appeal from the MTC to the RTC is always a matter of
right.
Q: What is the procedure of appeal from MTC to the
RTC?
The party appealing in a civil case will need to file a Notice of
Appeal and pay the required docket fee. Cases involving
special proceedings and other cases of multiple or separate
appeals will also require submission of a Record on Appeal.
Docket fee is a jurisdictional requirement. Hence, if not paid
on time, SC held that the appellate court does not acquire
jurisdiction over the case. Try to remember the Manchester
ruling.

Let us say a case for unlawful detainer was filed. A motion


to dismiss was filed by the defendant on the ground of lack
of jurisdiction over the subject matter, which was granted.
Premise: Under the provisions of Rule 41, the order of
dismissal, without prejudice, is not appealable. The
aggrieved party cannot appeal, but he can file petition
under Rule 65.
Q: Is this premise true? Should we follow Rule 41 in
appeals from the MTC to the RTC?
No. Rule 40 does not follow Rule 41. In Section 8, Rule 40,
when an MTC dismisses a case cognizable by it for lack of
jurisdiction over the subject matter, even if the dismissal is
without prejudice, the remedy of the plaintiff is to appeal, via
an ordinary appeal, the order of dismissal rendered by the
MTC.
Q: Why cannot we just follow Rule 41? It says that if a
dismissal is without prejudice, the order is not appealable,
and the remedy is a petition under Rule 65.
Insofar as the MTC and the RTC are concerned, there is a
good reason why Rule 40 says that the remedy of the plaintiff
is to appeal via ordinary appeal, to just file a notice of appeal
in the appellate court and pay docket fees. This is because
there is a provision under Rule 40 which says that if the matter
is brought to the RTC, and the RTC affirms the decision of
the MTC, it is the duty of the RTC to assume jurisdiction over
the case as if that case originated with the RTC.
Q: Why wont RTC assume jurisdiction if Rule 65 is used?
If we tell the plaintiff to observe Rule 41, but the plaintiff still
files a petition for certiorari under Rule 65, the RTC has no
authority to assume jurisdiction over the case. An appeal is not
a separate proceeding, it is just a continuation of the old case.
A petition under Rule 65 is an independent proceeding, and
not a continuation of the original case that has been resolved
by the MTC.
Q: In cases of unlawful detainer decided by the MTC,
there could be an appeal in the RTC involving factual and
legal questions. Insofar as the RTC and the prevailing
party are concerned, is the appeal by the losing party a
matter of right?
Yes. Whenever the mode of appeal is ordinary appeal, the
appeal is a matter of right. The court has no discretion to
outrightly dismiss the appeal. It has the duty to review the case
and render its own decision. The RTC as an appellate court
from a decision of an MTC in UD has no discretion to tell the
appellant that the appeal cannot be given due course, which is
allowed in petition for review and petition for review on
certiorari.
Q: Although the appeal of the losing party in the RTC is a
matter of right, may the RTC order the appeals dismissal
even without rendering its own decision because the
appellant violated certain orders or provisions of the
Rules?
Yes. Although it is the right of the losing party to appeal to the
RTC, the losing party, as an appellant, should also obey the
orders that could be issued by the RTC in relation to the
appeal.
One such order is given in Rule 41, Section 7[b]. The RTC
acting as an appellate court can require the appellant or
appellee to submit an appeal memorandum.

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If the appellant does not submit an appeal memorandum as


ordered, that will be a ground for the dismissal of the appeal
by the RTC. Although appeal is a matter of right, it is still the
duty of the appellant to obey the orders of the appellate court
issued in relation to his appeal taken to the RTC.
In Rule 41, the RTC can also order the dismissal on appeal if
it can be shown that the docket fees have not been paid or that
the appeal was taken out of time. If the appeal was out of time,
the appellate court has no jurisdiction at all to review the
judgment.
Q: If the RTC renders its own decision (affirm or reverse),
can there be a second appeal?
Yes, to the CA via a petition for review. The rule of thumb in
the case of second appeals is that the appeal is a matter of
discretion. The first appeal generally is a matter of right as to
the appellant, as long as the mode of appeal is an ordinary
appeal. But even if the appeal is a first appeal, but the mode is
the one under Rule 45, that is a matter of discretion on the part
of the SC. The second appeal from the RTC to the CA is a
matter of discretion. The CA can either refuse or allow the
appeal.
Q: Before the CA, could there be a third appeal?
Yes, we can go to the SC under Rule 45, which is always a
matter of discretion in the civil case. The SC enjoys the
prerogative whether to entertain or not to entertain that appeal.
Summary:
From MTC, appeal to the RTC by notice/record of appeal
whether it involves a question of law, a question of fact, or
both. This is a matter of right.
From the RTC as an appellate court, appeal to the CA by
petition for review. The appeal may involve a question of law,
a question of fact, or both. Appeal here is discretionary.
From the CA, the aggrieved party may appeal to the SC by
petition for review on certiorari under Rule 45. Only questions
of law may be appealed. Petition for review on certiorari is
always discretionary.
Q: Is it possible to appeal from MTC to the CA or SC
directly?
Yes. If the MTC is exercising its delegated jurisdiction to try
land registration or cadastral cases, appeal from its decision or
final order may be taken directly to the SC or the CA as the
case may be. The MTC in this situation will be considered as
if it were a RTC.
Procedure (MTC to RTC)
After the appeal is perfected, and it is perfected by the filing of
a notice of appeal, the RTC will now require the appellant to
submit his appeal memorandum.
Q: If the appellant does not submit his memorandum, the
RTC can dismiss the appeal. Why is the memorandum
important?
It is important because, similar to a brief on appeal before the
CA, it points out to the RTC the errors committed by the
inferior court. There is always a disputable presumption that a
decision rendered by the court is correct. If the appellant
refuses or fails to submit the appeal memorandum, the
presumption will stand and the appeal will be dismissed.

Q: What is the difference between a final order and an


interlocutory order?
Final orders completely dispose of a case or particular matter
therein. On the other hand, an interlocutory order only
determines incidental matters that do not touch on the merits
of the case or put an end to the proceedings.
Q: What is the difference between a question of law and a
question of fact?
There is a question of law when the doubt or difference arises
as to what the law is on a certain set of facts.
A question of fact on the other hand is when the doubt or
difference arises as to the truth or falsehood of the facts
alleged.
Q: What is a memorandum decision on appeal?
Memorandum decision is one in which the appellate court may
adopt by reference, the findings of facts and conclusions of
law contained in the decision appealed from. See Rule 51.
Q: What is the rule on harmless error?
Under Rule 51, Section 6, the court at every stage of the
proceeding must disregard any error which does not affect the
substantial rights of the parties.
Q: What is the material data rule?
The rule is an essential component for any mode of appeal
whether it is an ordinary appeal, petition for review or petition
for review on certiorari. It simply tells the appellant that he
should see to it that he informs the court about the date he
received the decision, the date of filing the motion, and the
date of denial by the court of motion for reconsideration or
new trial, in order to help the court determine the timeliness of
appeal, which is determinant of the jurisdiction of the
appellate court. If an appeal is not perfected on time, the
appellate court does not gain jurisdiction over the matter on
appeal.
Q: What is the difference between an erroneous appeal
and an improper appeal?
In improper appeals, the mode of appeal used is the correct
mode, but the questions raised in the appeal should not be
raised in the appeal. This may lead to the dismissal of the case.
For example, RTC rendered a decision. The decision was
appealed to the CA. The mode of appeal is an ordinary appeal
via a notice of appeal. Eventually, the records are transmitted
to the CA. Under the new rules, when there is an appeal by
ordinary appeal via notice of appeal, pure questions of fact, or
mixed questions of fact and of law could be raised. But the
rules state that if the only question raised is purely of law, the
CA has no jurisdiction. So the CA can dismiss the appeal
when purely questions of law are raised.
In erroneous appeals, the mode of appeal is wrong. There are
certain cases where although the mode of appeal is wrong, it
will not lead to the dismissal of the appeal.
For example, under the rules, the correct mode is ordinary
appeal, but the mode used was petition for review. This is an
erroneous appeal.
Petition for Review to the CA
If the court of origin is an MTC, the mode of appeal is an
ordinary appeal via a notice of appeal or a record on
appeal (in certain cases) to the RTC. From the RTC, as an
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appellate court, there could be a second appeal in the CA,


but this time, the mode of appeal is a petition for review.

possibility that the appellant may have filed another appeal


with a different court.

Q: From the MTC to the RTC, supposing the mode of


appeal used by the aggrieved party was a petition for
review, can the appeal be dismissed by the RTC on the
ground that the appellant has chosen the wrong mode of
appeal?
SC held that if the appellate court is an RTC, and appellant has
chosen the mode of petition for review, RTC should disregard
the error committed by the appellant. The SC reasoned that the
contents of a petition for review meets, and even exceeds, the
requirements of a notice of appeal. A petition for review is a
very lengthy document, there is the application of the material
data rule, there are errors that are assigned and there are
arguments embodied in the petition for review. In a notice of
appeal, it may compose of one paragraph where an appellant is
simply telling the court he is appealing the decision rendered
on such date, alleging the payment of docket fees. If the
appellant wrongfully chooses a petition for review, the RTC
should entertain the petition as the essentials for a notice of
appeal are already contained in the petition for review.

Appeal from Quasi-Judicial Bodies


The decisions that could be appealed to the CA do not
necessarily come from courts. It could be penned by quasijudicial bodies. There is just a common mode of appeal even
for quasi-judicial (QJ) bodies, petition for review under Rule
43.

Q: From the RTC as an appellate court to the CA,


supposing the mode of appeal used by the aggrieved party
was a notice of appeal, can the appeal be dismissed by the
CA on the ground that the appellant has chosen the wrong
mode of appeal?
The appeal will be dismissed. The mode of appeal used is
erroneous and will not confer jurisdiction upon the CA. In
other words, there are instances where the wrong mode of
appeal will lead to the dismissal of the appeal; and there are
instances where the wrong choice will be disregarded by the
court.
Q: From the RTC in its original jurisdiction to the SC,
supposing the mode of appeal is a notice of appeal, can the
appeal be dismissed by the SC on the ground that the
appellant has chosen the wrong mode of appeal?
Under the Rules, the only mode of appeal allowed in civil
cases to the SC is Rule 45. From the decision of the RTC in its
original jurisdiction, there could be an appeal to the CA or SC
as the case may be. If the appellant decides to go to the SC
immediately and filed a notice of appeal, the SC will dismiss
the appeal since the choice of mode of appeal is erroneous
under the Rules. A notice of appeal will never satisfy the
requirements of a petition for review on certiorari or appeal by
certiorari under Rule 45.
Q: Using the same problem above, supposing the mode of
appeal is titled Petition for Certiorari under Rule 65?
Will the petition be dismissed?
If the appellant inadvertently calls his petition a Petition for
Certiorari under Rule 65, the SC will liberally consider that as
a Petition for Review under Rule 45. The contents of
Certiorari under Rule 45 and Rule 65 are essentially the same.
But, the SC cautioned parties, the erroneous appeal must be
filed within the period of appeal (15 days). If you should
recall, the period for appeal by petition for certiorari provided
under Rule 45 is 15 days, whereas under Rule 65, the period
for filing a petition under this Rule is 60 days.
Q: Is a certificate of non-forum shopping available to a
petition for review?
Yes. Although a petition for review is not an initiatory
pleading, the Rules expressly directed it to prevent the

Q: What is the difference if the appealed decision is from


the RTC, and if it comes from a QJ body?
There is no difference with respect to the content, but there is
a great difference in the execution of the judgment appealed.
If the decision comes from a trial court in the exercise of its
appellate jurisdiction, being appealed to the CA, the decision
of the trial court cannot be executed. There could be no
execution. There could be an execution, but it should be an
execution pending appeal. The motion should be supported by
special reasons to convince the CA to order the execution of
judgment. Generally, when there is an appeal to the CA from a
court of justice like an RTC, the appealed decision cannot be
the subject of execution.
In case of QJ body decision, the appeal will not stay the
execution of the decision. The decision of the QJ body will be
enforced. There is only one way in which we can stop the
execution of the decision rendered by a QJ body during the
pendency of the appeal, and that is to ask the CA to issue a
writ of preliminary injunction.
Another difference is the rule that when a decision comes
from a QJ, the factual findings of the QJ are conclusive upon
the CA. As a general rule, the CA cannot review factual
findings of the QJ.
Q: Why is execution allowed in QJ bodies?
One reason given in the Rules is that the quantum of evidence
needed in QJ proceedings is only substantial evidence, while
in trial courts, the quantum of evidence is preponderance of
evidence.
Q: Are there any cases where appeal from quasi-judicial
bodies may be directly made to the SC?
Yes.
A decision from the Commission on Audit may be brought by
the aggrieved party to the SC on certiorari under Rule 65.
A decision from the Commission on Elections may be brought
also on certiorari to the SC under Rule 65.
(The decision of third constitutional commission the Civil
Service Commission may be taken to the CA under Rule 43.)
A party adversely affected by a decision of the CTA en banc
may file with the SC a verified petition for review under Rule
45.
The ruling of the Ombudsman in criminal cases (not
administrative disciplinary cases, which is appealable to the
CA under Rule 43) may be elevated to the SC by way of Rule
65.
The decision of the Sandiganbayan is appealable to the SC by
way of certiorari under Rule 45.
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As a special reminder, a review of the decision of the NLRC


may be brought to the CA using Rule 65. Remember, the CA,
not the SC.
Read: St. Martins Funeral Home v. NLRC
Notice of Appeal and Record on Appeal
Q: What is the difference between a notice of appeal and a
record on appeal?
The period to file a notice of appeal is 15 days. If it requires
the filing of a record of appeal, it is 30 days.
The period to file a notice of appeal is not extendible. The
same is not true with a record of appeal.
Q: Why is there discrimination between a notice of appeal
and a record on appeal when it comes to extension?
A notice of appeal is a very simple document. It is usually a
one-page document. On the other hand, a record on appeal
could be a very voluminous document because the record on
appeal will copy all of the pleadings as submitted by the
parties. It will also copy all of the relevant motions and the
orders issued by the court.
Q: When is record on appeal proper?
If you take a look at Section 39 of BP 129, or Section 2, Rule
41 of the Rules of Court, it states that no record of appeal
shall be required except in special proceedings and other cases
of multiple or separate appeals where the law or the Rules of
Court so require.
Dean Riano: A party, therefore, may appeal only a particular
incident in the case and not all of the matters involved in the
same case. For example, in expropriation, there are two stages
the first stage is the determination of the lawful right of the
plaintiff to take the property sought to be expropriated
culminating in an order of expropriation. This order of
expropriation may be appealed by any party by filing a record
on appeal.
The second stage of expropriation is the determination by the
court of the just compensation for the property sought to be
expropriated. A second and separate appeal may be taken from
this order fixing the just compensation.
If, however, the trial court has fully and finally resolved ALL
issues in the complaint for expropriation, there is no need to
file a record on appeal even in an expropriation case. The
original records will be sent to the appellate court even if a
notice of appeal is used.
Q: If a record on appeal is required, is notice of appeal
dispensed with?
No. It should be a notice of appeal and a record on appeal.
Besides, a notice of appeal just specifies to the court an appeal
is being taken. It is given that a record on appeal always
includes a notice of appeal.
Doctrine of Residual Jurisdiction
Q: What is residual jurisdiction?
It refers to the authority of the trial court to rule on certain
matters even if the appeal is already perfected. Even if the
appeal is now within the jurisdiction of the appellate court, the
trial court will retains jurisdiction to decide certain matters.
Q: What are these certain matters?

It is in the Rules of Court. These are:


1. To issue orders for the protection and preservation of
the rights of the parties which do not involve any
matters litigated by the appeal;
2. To approve compromises;
3. To permit appeals of indigent litigants;
4. To order execution pending appeal if accordance with
Section 2, Rule 39; and
5. To allow withdrawal of the appeal.
Q: When is the doctrine of residual jurisdiction available?
It is available under Rules 41 and 42. Under Rule 41, if there
is an appeal from RTC to the CA or SC as the case may be,
and prior to the transmittal of the original record or the record
on appeal, the court may exercise their residual jurisdiction.
Under Rule 42, if there is a petition for review from RTC to
the CA, and before the CA gives due course to the petition, the
RTC may also exercise residual jurisdiction.
Rule 41 applies if it is an ordinary appeal. Rule 42 will apply
if it is a petition for review. There is a difference between
them so take note of the qualifiers when residual jurisdiction
will end.
Q: The RTC is expressly given by the Rules the authority
to rule on certain matters under residual jurisdiction. Is
this available to the MTC?
Yes. If you take a look at Section 9, Rule 40, the other
provisions of Rule 41 shall apply to appeals from the MTC to
the RTC insofar as they are not inconsistent with or may serve
to supplement the provisions of Rule 40. It is therefore
applicable to MTC.
Motion for New Trial In The CA
Under the Rules, it is not necessary for the appealing party to
wait for the case to be decided by the CA to file a motion for
new trial. Even if the case has not yet been decided by the
CA, the movant can already file a motion for new trial
based on NDE. This is not possible if the case is in the MTC
or even in the RTC acting in its appellate jurisdiction. In the
RTC, we have to wait for the RTC to render a decision before
we can file a motion for reconsideration or new trial. With
respect to the CA, we also have to wait for the decision of the
CA before we can move for reconsideration. But when it
comes to a new trial, we can file a motion for new trial based
on NDE even before the case is decided by the CA. This is
clearly spelled out in the Rules. As long as the case is within
the jurisdiction of the CA, even if before the CA had made a
decision on the case appealed, a motion for new trial based
only on NDE can be filed.
The SC is generally not a trier of facts. A motion for new trial
will always involve a question of fact like NDE, and thus will
be dismissed by the SC. The availability of a motion for new
trial ends with the CA, but the availability thereof is based
only on the ground of NDE.
Motion for Reconsideration before the CA
The Rules do not clearly state what the grounds are for a
motion for reconsideration before the CA. Since this is the
case, then the same grounds under Rule 37 may be used for a
motion for reconsideration before the CA.
There may be only one motion for reconsideration before the
CA, as it is in the trial courts.
Relief of Judgment under Rule 38 before the CA

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This is not possible.


First, there is no court in our system which is vested with
authority to entertain a petition for relief against a final and
executory judgment of the CA. The SC may not entertain the
petition for relief because it is a court of limited jurisdiction.
And although the RTC is a court of general jurisdiction, it is
improper because the CA is a higher court than the RTC.
Second, Rule 38 applies only to trial courts, not the CA. This
may be implied from the provisions of the Rule itself.
Annulment of Judgment before the CA
If you remember our discussion before, the SC may annul
judgments made by the CA under its equity jurisdiction. It is
not expressly stated in the Rules but it is possible as a
jurisprudential rule.

APPEAL BY CERTIORARI TO THE SC


In civil cases, this is the only mode used to appeal to the SC.
We cannot use a notice of appeal or a petition for review if the
SC strictly applies these rules on appeal.
Q: Is it correct we cannot appeal to the SC by notice of
appeal?
No. It does not mean to say that we cannot go up to the SC by
simply filing a notice of appeal or an ordinary appeal. What
the Rules of Court prohibits is the filing of an ordinary appeal
to the SC, i.e., a notice of appeal, if the case is a civil case.
If the case is a criminal case, there could be notice of appeal to
the SC. It is applicable in case the penalty imposed is life
imprisonment or reclusion perpetua. The appeal from that
criminal case will be by notice of appeal not via a petition for
certiorari.
As a general rule, only questions of law can be raised before
the SC. However, raising questions of law with questions of
fact before the SC does not necessarily disallow the appeal.
The Rules say that if the issues raised in under Rule 45 are
factual and legal, the SC has the discretion to remand the case
to the CA. When the SC sends the case to the CA because the
issues raised are both factual and legal, the CA now has the
duty to review the case and render its own decision.
The opposite, however, does not apply, such as when the CA
is the appellate court. If the court of origin is the RTC acting
in its original jurisdiction, and it involves pure questions of
fact or mixed questions of fact and law, the mode of appeal is
an ordinary appeal through a notice of appeal.
It is in this mode of appeal, i.e., an ordinary appeal to the CA,
where the appellant is required to submit a brief on appeal.
Q: What is a brief on appeal?
The purpose of a brief is to present to the court in a concise
form the points and question in controversy, and by fair
argument on the facts and law of the case, to assist the court in
arriving at a just and proper conclusion/ decision.

If it is the appellant case who does not submit his brief, the
appeal is dismissed. If it is the appellee who does not submit
his brief, then the court will simply decide the appeal without
a brief coming from the appellee. The appellee can choose not
to submit a brief. It is the brief of the appellant whose
submission or non-submission could lead to the dismissal of
the appeal.
Q: Why is the CA very much interested in the assignment
of errors that must be contained in the brief, without
which the appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal
because insofar as the CA is concerned, the decision of the
trial court is a correct decision. Remember that in our Rules of
Evidence, there is a presumption that a decision of a trial court
is correct, i.e., there is a presumption of regularity in the
performance of official duties. The CA will always apply that
disputable presumption whenever there is an appeal in the CA.
That same attitude is also adopted by the SC. Whenever an
appeal under Rule 45 is raised to the SC, the SC adopts the
disputable presumption that the decision of the CA is correct.
Since the CA adopts the presumption that the RTC decided on
the case correctly, the appellant must overwhelm that
presumption by convincing the CA that serious errors were
committed by the RTC. Since the appellant cannot be allowed
to present evidence thereon, since reception of evidence
should have been done in the trial court, appellant will have to
rely on the records submitted from the RTC.
The only way by which appellant can possibly convince that
the RTC committed serious errors is through the assignment of
errors. If the appellant cannot make an assignment of errors in
the brief, it means the appellant finds nothing wrong with the
decision of the RTC. Therefore, the disputable presumption
stays, and this will be used by the CA. That is why the
assignment of errors is essential to the brief of the appellant.
Absence thereof is fatal to the appeal, and will cause the
appeals dismissal.
Q: Distinguish a brief from a memorandum.
A:
Brief

Memorandum

Ordinary appeals

Certiorari,
prohibition,
mandamus, quo
warranto and habeas
corpus cases

Filed within 45 days

Filed within 30 days

Contents specified by
rules

Shorter, briefer, only


one issue involved
No subject index or
assignment of errors,
just facts and law
applicable

During the pendency of the appeal, the CA will require parties


to submit their briefs. The Rules provide for the brief of the
appellant and the appellee.

Q: Can the appellant assign as the only error in the brief


that the RTC committed an error in deciding the case
against the appellant?
That is not an assignment of error expected by the CA.
Assignment of errors should specify particular acts done by
the RTC which could have affected his substantial rights.

Q: What happens if the brief is not filed on time?

Q: Reiterate the rule on harmless errors.

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The trial court must have committed errors in the proceedings;


it is expressly provided in Rule 51 that only errors of the court
in admission of evidence and issuance of orders that affects
substantially the rights of the appellant could be considered by
the appellate court. Otherwise, the court will disregard that
error, even if made a part of the assignment of errors.

which, if properly considered, could justify a


different conclusion.
Dean Jara suggests memorizing at least five for the Bar
Exams. For recitation, he suggests to memorize at least eleven
(haha).

Q: What issues will be resolved on appeal?


In civil cases brought on appeal, the appellate court will
resolve only issues raised in the assignment of errors. No other
issue, generally, will be resolved by the court. The only
exception is if the issue not raised in the assignment is closely
related to the issue raised in the assignment of errors of the
appellant.

Aside from these instances, the following cases also allow


questions of fact to be raised on appeal to the SC:
7. Kalikasan cases
8. Amparo cases
9. Habeas Data cases

Q: Is the rule above applicable to criminal cases?


No. In a criminal case, if there is an error committed by the
trial court, whether mentioned or not in the assignment of
errors, the CA or SC can take cognizance of such errors in
resolving the appeal. The appellate courts are very flexible in a
criminal case whose decision from the trial court was brought
before it on appeal.

Q: What if the appellant raises questions of fact before the


SC? Will the SC dismiss the case?
It may, but the SC is given the discretion to refer the appeal to
the CA instead.

As a general rule, only errors assigned in the brief may be


considered on appeal. These are the exceptions:
1. Grounds not assigned as errors but affecting the
jurisdiction over the subject matter
2. Matters not assigned as errors on appeal but are
evidently plain or clerical errors within the
contemplation of law;
3. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a
just decision and complete resolution of the case or to
serve the interest of justice or to avoid dispensing
piecemeal justice;
4. Matters not specifically assigned as errors on appeal
but raised in the trial court and are matters of record
having some bearing on the issue submitted which
the parties failed to raise or which the lower court
ignored;
5. Matters not assigned as errors on appeal but closely
related to an error assigned; and
6. Matters not assigned as errors on appeal but upon
which the determination of a question properly
assigned is dependent.
Questions before the SC
Although Rule 45 is explicit in saying that only questions of
law can be raised in a petition on certiorari, the SC has
recognized a number of exceptions:
1. When the findings are grounded entirely on
speculation, surmises or conjectures;
2. When the inference made is manifestly mistaken,
absurd or impossible;
3. When there is grave abuse of discretion;
4. When the judgment is based on misapprehension of
facts;
5. When the findings of facts are conflicting;
6. When in making its findings, the CA went beyond
the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee;
7. When the findings are contrary to the trial court;
8. When the findings are conclusions without citation of
specific evidence on which they are based;
9. When the facts set forth in the petition as well as in
the petitioners main and reply briefs are not disputed
by the respondent;
10. When the findings of fact are premised on the
supposed absence of evidence and contradicted by
the evidence on record; and
11. When the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties,

Both factual and legal questions can be raised under Rule 45


in these three situations.

Q: What are the differences between Rule 45, 64, and 65?
Rule 45

Rule 64

Rule 65

Petition for
Review on
Certiorari

Certiorari against
COMELEC and
COA

Certiorari,
Prohibition, and
Mandamus

Mode of Appeal

Mode of Appeal

Independent
Action

Cannot implead
the court as a
party

COMELEC or
COA should be
impleaded as
respondent

The court or QJ
should be
impleaded

15 days

30 days

60 days

Question of Law

Question of Law

Question of Law
and limited to
Questions of
Jurisdiction

The order or
decision cannot
be executed.

The ruling of the


COMELEC or
COA will not be
stayed unless SC
issues an
injunctive relief

The ruling of the


court or QJ will
not be stayed
unless SC issues
an injunctive
relief

SC

SC

SC, CA or RTC

Summary:
If the RTC is acting in its original jurisdiction, appeal may be
had to the CA or SC.
If the issues involve pure questions of fact or mixed questions
of law and fact, then appeal may be had by going up to the CA
by ordinary appeal. Ordinary appeal may take in the form of a
notice of appeal or record of appeal as the case may be. This is
a matter of right.
If the issues involve pure questions of law, the appellant may
proceed to the SC directly by petition for review on certiorari
under Rule 45. This appeal is a matter of discretion.
In the case of quasi-judicial bodies, whether or not it involves
factual or legal issues or both, there may be appeal to the CA.
The appeal is in the form of a petition for review under Rule
43.
From the CA as an appellate court, the appellant may further
appeal to the SC by using a petition for review on certiorari
under Rule 45. This appeal is still a matter of discretion.
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Motion for Reconsideration before the SC


It is possible.
Motion for New Trial before the SC
This is not possible. The SC will not entertain a motion for
new trial even if the ground is based on NDE. The Supreme
Court is not a trier of facts.
Further Appeal
The decision of a division of the SC is a decision of the SC.
Thus, it is not possible to appeal the decision of a division of
the SC with the SC en banc.

ANNULMENT OF JUDGMENT
Q: What is annulment of judgment?
A: It is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. The purpose of
such action is to have the final and executor judgment set
aside so that there will be renewal of litigation.

A: A person need not be a party to the judgment sought to be


annulled. What is essential is that he can prove his allegation
that the judgment was obtained by the use of fraud and
collusion and he would be adversely affected thereby.
Read: Islamic Dawah Council v. Court of Appeals
Q: Where should the petition be filed?
A:
Judgments of RTC

Judgments of MTC

Filed with the CA

Filed with the RTC

Basis It has exclusive


original jurisdiction over said
action under Sec. 9 (2), BP
129

Basis RTC as a court of


general jurisdiction under
Sec. 19 (6), BP 129

CA may dismiss the case


outright; it has the discretion
on whether or not to entertain
the petition.

RTC has no such


discretion. It is required to
consider it as an ordinary
civil action.

NOTE: A co-equal court cannot annul the final judgment of a


similar court. CA has exclusive jurisdiction over actions for
annulment of judgments of RTC. An action to annul a
judgment or final order of MTC shall be filed in the RTC
having jurisdiction in the former and it shall be treated as an
ordinary civil action. (Secs. 1 &10, Rule 47).

Q: If a judgment of an MTC can be the subject of


annulment by CA or RTC as the case may be, can we also
seek annulment of the decisions by a quasi-judicial or
administrative body?
A: Under BP 129, annulment of judgment, as procedurally
explained in Rule 47, does not extend to the quasi-judicial or
administrative body, unless such provision was allowed by the
charter of such administrative or quasi-judicial body.

Extrinsic Fraud
Fraud is regarded as extrinsic when it prevents a party from
having a trial or from preventing a party from having a trial or
from presenting his entire case to the court, or where it
operates upon matters pertaining not to the judgment itself but
to the manner in which it is procured (Alaban v. CA, GR No.
156021, September 23, 2005).

Rule 47 refers to an action filed by a petitioner to annul a


judgment rendered by an RTC in a civil case. This is what
literally BP 129 provided where CA is given the authority to
annul decisions made by an RTC in a civil action. Therefore,
if the action is not a civil action or rendered by a quasi-judicial
or administrative body, we cannot use Rule 47.

Note, however, that extrinsic fraud, or collateral fraud, is not a


valid ground if it was availed of, or could have been availed of
in a motion for new trial or petition for relief.
Lack of Jurisdiction
Lack of jurisdiction as a ground for annulment of judgment
refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Lack of jurisdiction over the subject matter and over
the person May be barred by estoppels by laches,
which is that failure to do something which should be
done or to claim or enforce a right at a proper time or
a neglect to do something which one should do or to
seek or enforce a right at a proper time. (1998 Bar
Question)
The extraordinary action to annul a final judgment is restricted
to the grounds provided by law to prevent it from being used
by a losing party to make a mockery of a duly promulgated
decision that has long become final and executory.
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of
when the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available
through no fault of the petitioner.
Q: Who may avail this remedy?

Q: Since Rule 47 says that the annulment contemplated in


BP 129 refers to a judgment in a civil action, does it mean
to say that the judgment of an RTC acting as a criminal
court cannot be subject to annulment of judgment by the
CA under Rule 47?
No.
If the judgment of the RTC is a judgment in a criminal case,
we cannot use Rule 47 as it is specifically stated in the said
rule that annulment of judgment is availing only to civil cases
decided by the RTC. Rule 47 is not a remedy to annul
decisions or judgments rendered by the RTC as a criminal
court. A decision of an RTC in a criminal case can be
annulled by filing a case for habeas corpus. Petition for
habeas corpus is the equivalent in criminal cases of petition
for annulment of judgments in civil cases.
An RTC could act as a civil and criminal court. It exercises
original actions over both actions. RTC decisions in civil
actions could be the subject of annulment by CA under rule
47, but Rule 47 does not apply if the decision is one rendered
from criminal cases. The remedy in order to annul a judgment
in criminal cases is by filing a petition for habeas corpus. BP
129 is very clear under Rule 47. What can be annulled under
Rule 47 are judgments in civil cases only.
Q: Is there a difference between Rule 47 (petition for
annulment of judgment rendered by an RTC in a civil
case) and petition for habeas corpus?

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There are substantial differences.


Annulment under Rule 47 is a direct attack of a final and
executory judgment, the only purpose of which is to nullify
and set aside a court decision in a civil case. But in a criminal
case where the decision of the RTC may not be valid due to
lack of jurisdiction or extrinsic fraud, the remedy is petition
for habeas corpus, which is an indirect attack on the judgment
of an RTC in the criminal case.
When a habeas corpus petition is filed in order to nullify a
decision on a criminal case, the principal relief which the
petitioner seeks is to declare the petitioner has been deprived
of his liberty unlawfully. It is not principally to set aside the
judgment rendered by the RTC in a criminal case.
The remedy of petition for habeas corpus in criminal case are
more advantageous than that of an annulment of judgment in
civil cases. This is because an annulment of judgment in civil
cases is a direct attack against the judgment in the civil case,
while in the criminal cases, the detainee can challenge the
validity of the judgment of conviction, although he is not
attacking directly the validity of the said judgment of
conviction. He is attacking the validity of the deprivation of
his liberty.
Q: What is a collateral attack on judgment?
It is made in another action to obtain a different relief; an
attack on the judgment is made as an incident in said
action. This is proper only when the judgment, on its face
is null and void, as where it is patent that the court which
rendered such judgment has no jurisdiction (Co vs. Court
of Appeals, 196 SCRA 705).
Note that Rule 47 is inserted in between the rules governing
appeals. The procedure for appeal starts with Rule 40 up to 56.
Annulment of judgment has nothing to do with appeals as it is
a civil action. Annulment of judgment is an original action that
can be filed in the RTC and CA. And, in Rule 47, when
particularly applied to a petition for annulment commenced
before the CA, you will notice that some of the features of a
special civil action are carried by a petition to annul the
judgment filed with the CA. For instance, if a petition to annul
a judgment of an RTC in a civil case is filed in the CA, the CA
has the authority to outrightly dismiss the petition for lack of
merit. This is similar to Rule 65, where the petition for
certiorari, prohibition or mandamus can be outrightly
dismissed if it is not meritorious on its face.
Q: What if the decision in the RTC was already final and
executory, can the petition to annul judgment filed in the
CA stop the execution of the said judgment?
No. The petition will not stop the prevailing party from
moving for the execution of the final and executory judgment
in the civil case, notwithstanding the commencement of the
petition to have the judgment in the civil case annulled. The
only remedies available to a petitioner for annulment of
judgment of an RTC in the CA is to apply for the provisional
remedy of PI or TRO to stop the RTC from proceeding with
the execution of the said judgment.
Q: Under Rule 47 in relation to BP 129 in the case of
annulment of judgments of an RTC filed in the CA, is it
correct that only the litigants thereto can file the petition
to annul a judgment in a civil case?
No. As held in the case of Islamic Da'wah vs. CA, the petition
for annulment of judgment in BP 129 and Rule 47 does not

prohibit a stranger from filing a petition to annul judgment. He


can do so, so long as he can show he will be prejudiced by the
judgment sought to be annulled.
In Islamic Dawah, in allowing a stranger to annul a judgment,
then he need not seek other remedies since the stranger to a
case cannot possibly avail of remedies that are available
only to a litigant in a case.
While CA has authority to outrightly dismiss annulment of
judgment, the RTC cannot. Insofar as RTC is concerned,
petition to annulment of a judgment by an MTC should be
treated as any normal civil case.
In Rule 47, if the judgment is annulled, it is declared void by
the court. It is unenforceable, or if already enforced, CA can
order restitution if that is still possible.
Q: Is there a conflict between Rule 47, annulment of
judgment, and Rule 132, Section 29, or impeachment of a
judicial record?
There is no conflict between Rule 132 and Rule 47 since they
involve very similar grounds. Although Rule 132 does include
as one ground collusion, extrinsic fraud under Rule 47 is
broad enough to include collusion. There is therefore, no real
conflict.

PRELIMINARY CONFERENCE IN APPEALS


The preliminary conference before the appellate court is
permissive, not mandatory, unlike the rule on pre-trials under
Rule 18. However, if the CA or SC does call the parties to a
preliminary conference and the appellant does not attend, the
appeal will be dismissed.

Have a break. Have a Kitkat.

EXECUTION AND SATISFACTION OF JUDGMENT


Rule 39 has been described in jurisprudence as the one that
gives life to the law. It does so in the sense that the winning
party will be able to recover the award given in his favor. So if
the civil case is the recovery of money, and the court awards
P2M to the prevailing party, said party will not be satisfied
until the P2M is given to him.
Q: Should Rule 39 always be resorted to in order to have
satisfaction of judgment?
No. It is not correct to assume that in order to satisfy a
judgment, we should always make use of Rule 39. Satisfaction
of judgment as conceived in Rule 39 is a forcible satisfaction
of judgment. So if the award in favor the judgment creditor is
for the payment of the judgment debtor of P2M, the judgment
creditor does not even have to think about Rule 39 if the
judgment debtor immediately pays the award of P2M.
It is only in that situation where the judgment debtor refuses to
pay that the only remedy of the judgment creditor to enforce
payment is to make use of Rule 39, to force the debtor to pay
by levying his properties and by selling his levied properties
by public auction.
Execution Pending Appeal

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Q: What is the general rule regarding execution pending


appeal?
The judgment creditor cannot ask for execution of the
judgment if the case is pending appeal.
Q: Are there exceptions?
Yes. The Rules state four which are immediately executory:
1. Support
2. Receivership
3. Accounting
4. Injunction
A decision by the MTC in forcible entry and unlawful detainer
cases are also immediately executory.
Q: If a decision is immediately executory, does it mean the
court may execute the decision motu proprio?
No. There must be a correlative motion from the winning
party. It is immediately executory in the sense it may be
executed even pending appeal.
Q: When is execution as a matter of discretion?
Under the Rules, if the decision is not among those decisions
that are immediately executory, the court may still execute the
judgment even pending appeal if the winning party proves
good reasons in a hearing before the court.
Q: May the winning party say that he is willing to put up a
bond in order to have an execution pending appeal?
No. The winning party must prove concrete good reasons.
Putting up a bond is not one of them.
Q: May discretionary execution be stayed?
Yes. The judgment debtor only has to set up a supersedeas
bond. If there is an order of an execution pending appeal, he
may go up using Rule 65, provided there is grave abuse of
discretion, and pray for an injunctive relief against such order.
Q: What court will execute the judgment pending appeal?
It may be the appellate court or the trial court. As a general
rule, it is the appellate court which will execute the judgment
pending appeal. However, the trial court may also exercise its
authority to execute the judgment pending appeal if it has
residual jurisdiction over the case. It is one of the powers
expressly enumerated by the Rules under the doctrine of
residual jurisdiction.
Q: What court executes the judgment the trial court or
the appellate court?
As a general rule, if there is an appeal from the decision
rendered by the trial court, and the case has reached the SC,
even if the decision of the trial court has been affirmed, and
said decision by the SC has been entered, it is not correct for
the prevailing party to ask for execution from the SC. The
matter of execution is a duty of the court of origin, not the
appellate court. If the court of origin is the MTC, it is the duty
of the MTC to enforce the satisfaction of the judgment. It is
axiomatic that higher courts like the CA or SC do not usually
issue an order for execution of judgment.
What a lawyer for the judgment creditor should do is to wait
for the records to be returned from the SC or CA to the court
of origin. It could take time for the records to be returned to
the court of origin. So, if a motion for execution was filed by
the judgment creditor in the court of origin before the records
are returned, there is likelihood that the court of origin will tell
him they have not yet received the records so they cannot act
on the motion until the records reach the court of origin. This

is although the issuance of an order granting the motion for


execution is a ministerial duty of the court.
Rule 39, however, has provided for a remedy in this situation.
The appellate court will simply issue a certified true copy of
the entry of judgment. The certified true copy of the judgment
will be submitted to the court of origin in order to be a basis of
the granting of the order of a motion for execution. That is
enough proof that there really is a final and executory
decision.
Q: Is there a need for the judgment creditor to file a
motion for execution, or will the issuance of a writ of
execution come as a matter of course?
There is always a need to file a motion for execution. If the
judgment creditor has not filed a motion for execution, the
court has no business to issue a writ of execution, because the
court will not know whether there was voluntary satisfaction
of judgment.
Q: May a motion of execution be heard ex parte?
Since the judgment has become final and executory and it has
now become a ministerial duty of the court of origin to issue a
writ of execution, then the motion for execution will be heard
ex parte, without notice to the judgment debtor.
Although this issue has been the subject of conflicting
decisions by the SC, the latest jurisprudence said that a motion
for execution of a judgment that has become final and
executory can be heard ex parte by the trial court. Under the
old doctrine, the judgment debtor should also be given a copy
of the motion for execution because the latter may have
grounds to oppose the issuance of the writ of for execution.
Q: What is the period granted by the Rules to file a motion
for execution?
Within the Rules, there is a period fixed within which the
court can grant a motion for execution as a ministerial duty. It
is 5 years from the entry of judgment. After the 5 years from
entry, there can be revival of judgment, no longer a motion,
since this is an independent action to revive the judgment. But
the independent action to revive judgment must be filed within
the second 5-year period after the entry of judgment.
Q: The Rules assume that the prescription period for the
execution of a judgment is the 10-year period. Is this a
correct assumption?
This is correct, as this is also provided under the NCC. A
prescriptive period of a final and executory judgment is really
10 years under the NCC.
But what Rule 39 has provided was to divide the 10 years into
two parts; the first five years, and the second five years.
Meaning, the first five years, we can execute the judgment via
a motion for execution. After the lapse of the first five year
period, the judgment creditor cannot file a motion for
execution. If he does so, the court will deny the motion since
the court will no longer have the authority to grant the motion
of execution. The second 5-year period is designed to force the
judgment creditor to file a separate independent action to
revive the judgment. So the motion for execution should be
filed within the first five years of the 10-year period.
Q: Is the first 5-year period strictly implemented by the
rules?
It is not. It can be extended according to the Rules. The SC has
decided that if the institution of the judgment within the first

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five years is delayed, and the delays are equitable or are


attributable solely to the conduct of the judgment debtor, then
the 5-year period will be correspondingly be extended, that is
equal the delay caused by the conduct of the judgment debtor.
For example, the judgment creditor filed a motion for
execution of the judgment on the third year of the first 5-year
period. The court of origin is an RTC. The judgment debtor
received a copy of the motion. After receiving the copy of the
motion, the judgment debtor files a petition for the annulment
of judgment before the CA under Rule 47 with prayer for a
preliminary injunction. CA granted the preliminary injunction.
Because of the preliminary injunction issued by the CA, we
cannot expect the RTC to order the execution of the judgment.
It took the CA two years to decide upon the petition of the
judgment debtor. In the end, CA ordered the dismissal of the
petition for annulment of judgment. There is now a delay of
two years. If the 5-year period has already lapsed due to the
delay, another two years will be added, the 5-year period will
be automatically extended up to seven years within which the
judgment can be executed through the filing of a motion for
execution of judgment. That is how the SC described how the
first 5-year period and the second 5-year period should be
interpreted. It is not a fixed period.
Q: What does delay caused by the conduct of the
judgment debtor mean?
This simply means that the judgment debtor can legally delay
the execution of the final judgment. In fact, he is given two
remedies under the Rules to prevent the execution of a final
judgment. Rule 38 is one means of delaying the execution of
judgment. In Rule 38, the court that decided the case can issue
an injunction against the enforcement of the judgment. Rule
47, or annulment of judgment, is another remedy, but there
should be a corresponding preliminary injunction that is issued
by the higher court. In annulment of judgment, the court that
will try the case will always be a higher court. Thus, if the
higher court hearing the petition issues an order to stop the
execution of the judgment, there is no way for the court of
origin to disobey such order.
Q: If the motion for execution is granted, which is
expected, as the judgment has become final and executory,
can the judgment debtor file an appeal against the order
granting the motion for execution?
No. Under Section 1 Rule 41, an order granting motion for
execution is not appealable. The order will be treated as a final
order. The remedy is to file a petition under Rule 65, a petition
for prohibition.
Q: Suppose the court denies a motion for execution of
judgment, is appeal the remedy of a judgment creditor?
No, it does not seem so, based also under Section 1, Rule 41.
The creditor should also resort to Rule 65. The petition that he
should file is a petition for mandamus. Mandamus is proper
because there is a ministerial duty for the court to perform.
Under Rule 39, as long as the judgment has been entered, it
has become a ministerial duty of the court to grant a motion
for execution. That is an act that can be compelled by a writ of
mandamus.
Q: May the judgment creditor file a motion for execution
after the first five-year period even if the judgment debtor
consents?
No. The SC held that after the first five-year period, the court
loses jurisdiction to execute the judgment through a mere
motion. The fact that the judgment debtor did not oppose said

motion does not matter because the issue now is one of


jurisdiction. Jurisdiction will not be vested upon the court
simply by inaction on the part of a party. Thus, the
proceedings taken by the court in granting the motion for
execution beyond the first 5-year period was held to be
irregular. The issuance of the writ of execution is void, and
therefore the writ can be quashed for lack of jurisdiction.
Q: Can the trial court promptly deny a motion for
execution?
The general rule is that the trial court cannot quash or rightly
deny a motion for execution if the judgment has already been
entered. But, there are certain exceptions that the SC has
recognized.
First, if the judgment has become dormant. This means the
first five years for executing the judgment has already lapsed.
The execution of the final judgment cannot be granted via a
motion. The judgment creditor must avail of the independent
action of revival of judgment to revive a dormant judgment.
Second, when the parties enter into a compromise agreement
after the judgment has become final and executory. If there is
a compromise agreement signed by both parties whose terms
are not consistent with the award given, the effect will be
novating the judgment. The court will no longer grant a
motion for execution since there is nothing to execute. The
parties may agree to change the terms of the dispositive
portion of the judgment. This is an application of novation
being a mode of extinguishment of an obligation under the
NCC.
Q: Is a writ of execution subject to a motion to quash?
Yes. A writ of execution may be quashed on certain grounds:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the
parties making the execution inequitable or unjust;
3. When execution is sought to be enforced against a
property exempt from execution;
4. When it appears that the controversy has never been
submitted to the judgment of the court;
5. When the terms of the judgment are not clear enough
and there remains room for interpretation thereof;
6. When it appears that the writ of execution has been
improvidently issued;
7. When it appears that the writ of execution is
defective in substance, or is issued against the wrong
party, or that the judgment debt has been paid or
otherwise satisfied or the writ is issued without
authority.
Q: What if the trial court denies the motion to quash?
Dean Albano: The party may appeal (either by ordinary appeal
or a petition for review) or by a special action of certiorari,
prohibition, or mandamus. Considerations of justice and
equity dictate that there must be some mode available to the
party aggrieved of elevating the question to a higher court
(citing Banaga v. Majaducon).
Q: Suppose within the first 5-year period, the court grants
a motion for execution, and then issues a writ of execution.
The writ of execution is carried out by virtue of a levy on
execution of the properties of the judgment debtor. But the
properties levied upon were not sold during the first 5-year
period. On the 6th year, can the properties levied upon be
sold at public auction?
Yes. According to the SC, the first 5-year period does not
require that the actual levy and sale of property on public
auction must be done within the first five years. What is

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important is that within the first 5 years, there must be an


actual levy of the properties of the judgment debtor, even if
the auction sale was conducted in the sixth year. Levy is the
actual act of carrying out the judgment.
Revival of Dormant Judgment
Q: With respect to the revival mentioned in the Rules
pertaining to the second 5-year period, this is an
independent action. If the original action was a real action,
will we still consider the revival action as a real action?
Yes. If the original action is a real action, the action to revive
that judgment will also be a real action. Since it is a real
action, in Rule 4, the venue of the action will now be
determined by the place where the property is located. Thus,
the revival of action will be filed in the court having
jurisdiction over the place where the property is situated.
Q: To what court should revival of judgment be filed?
The case will be cognizable by the RTC because it is
incapable of pecuniary estimation.
Always remember that a petition to revive a dormant judgment
is an independent action separate and distinct from the original
case. It is not a mode of appeal or a continuation of that old
case.
In fact, the decision of the revival court is not really a revival
of the old judgment. It is a new judgment altogether. This is
the reason why a judgment may be revived in perpetuity.
Although it is true that the NCC says that the judgment will
prescribe after 10 years, since each revived judgment is a
new judgment altogether, so long as there is a revival every
ten years, it may last in perpetuity. Of course, this does not
factor laches and the articles of NCC against bad faith.
Q: May the judgment debtor raise want of jurisdiction
against an action to revive judgment?
No. Within the second five-year period from entry of
judgment, the debtor cannot oppose an action to revive
judgment by setting up the defense that the judgment is void
due to lack of jurisdiction over the person of the defendant, as
this is a collateral attack on the judgment rendered.
Q: It is possible that the parties of the original action and
the revival of judgment are different. Will the petition to
revive the judgment be dismissed?
No. The mere fact that the names appearing as parties in the
complaint for revival of judgment are different from the names
of the parties in the original case would not necessarily mean
that they are not the real parties-in-interest. What is important
is that, as provided in Section 1, Rule 3, they are the party who
stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit.
Revival of a Judgment Already Executed
There is another revival of judgment, this time under Section
34 Rule 39. The revival of judgment in Section 34 Rule 39 is
not the revival of a dormant judgment, but refers to a
judgment already executed.
The situation contemplated in Section 34 Rule 39 is that
judgment is executed, properties are levied upon, and these
properties have been sold at public auction, but the highest
bidder, or anybody who thereafter acquire the property, is not
able to get possession of the property because of opposition or
legal complications that are related to the execution of
judgment. According to Section 34, the revival of judgment

could be had through a motion or through an independent


action. Thus, there is a difference between a revival of
judgment under Section 34, Rule 39 where it is a revival of a
judgment already executed via a motion or via an independent
action, and the revival of a dormant judgment where there has
been no execution within the first 5-year period prescriptive
period of a judgment under Section 6 Rule 39.
Take note of the differences between the two kinds of revival
of judgments in Rule 39, under Section 6 and Section 34.
Process
The improvement given by Rule 39 under the 1997 Rules,
insofar as the judgment creditor is concerned, is that under the
present Rules, the writ of execution issued by the court has a
lifespan of five years. The judgment creditor does not need to
file one motion for execution after another, which was the
prior practice when the life of the writ of execution was only
60 days. At any time during that five-year period, the sheriff
could enforce the writ, he may make levy the properties of the
judgment debtor. The only limitation imposed by the Rules is
that the sheriff must file periodic reports to the court as to the
progress of the process of execution.
Q: How does the court enforce a duly entered judgment?
It all depends on the tenor of the judgment.
If the judgment awards money, there will be levy and
auction.
If the award involves delivery of properties or documents,
there will be no levy on execution, but the property to be
delivered will just be seized from the judgment debtor and
promptly delivered to the judgment creditor.
If the judgment directs the judgment debtor to sign a deed
of conveyance or a deed of sale in favor of the judgment
creditor, and the judgment debtor refuses, the court can
appoint another person, usually the clerk of court, to sign the
document on behalf of the judgment debtor. That document
cannot be considered a spurious document, but one that is
signed effectively by the judgment debtor following a lawful
order of the court.
If the judgment directs the judgment debtor to vacate a
piece of land or building, the court, through the sheriff, will
forcibly oust him from the building. The court will throw out
the things belonging to the occupants.
In a writ of execution, the writ will be directed to the sheriff.
The writ will contain verbatim the dispositive portion of the
decision. The writ of execution directs the sheriff to carry out
the duty of executing the dispositive portion of the judgment
of execution.
Q: Can the court cite a judgment debtor for refusing to
obey a lawful order of the court in compliance with the
judgment to be executed?
No. Citation for contempt is generally not a remedy in
enforcing a judgment. Rule 39 contemplates an enforcement
of a judgment by the sheriff of the court making use of the
processes in Rule 39. So if the judgment debtor refuses to
obey, a court cannot go to another court to cite the judgment
debtor in contempt. That is not contempt of court. According
to the SC, the writ is not addressed to the judgment debtor.
The writ is addressed to the sheriff of the court, and hence the

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sheriff has the duty to carry out the dispositive portion of the
judgment.
Q: Can there be contempt in collection of money cases by
way of exception?
Generally, no, but it is possible in support. Failure to give
support can result with the disobeying person being cited in
contempt, as well as being subjected to a criminal case for
failure to give support.
Levy of Property
As a general rule, therefore, a judgment debtor who refuses to
obey the writ of execution cannot be cited in contempt. There
are other more effective remedies under Rule 39 in order to
carry out the possible satisfaction of the judgment. The more
effective remedy under Rule 39 is to levy the properties of the
judgment debtor, seizure thereof and sell them at public
auction.
Q: Who possesses a property under levy on execution?
It depends.
Levy of properties under Rule 39 does not automatically mean
that possession of the levied properties will be in the hands of
the sheriff or the court. If properties of the judgment debtor
that are levied upon are real properties, the judgment debtor
will continue to possess the property and he will not be ousted.
The court will simply submit a copy of the levy of execution
to the Register of Deeds and ask the latter to annotate such
fact. What is important to know in the levy of real properties is
that the judgment debtor will not be ousted from his physical
possession of the real property. He will continue to be in
possession of the real property although it is already subject of
a levy.
But when the property levied upon is personal property, the
physical possession of the property will be turned over to the
sheriff. In fact, the properties will literally be placed in
custodia legis.
Q: What happens after the levy is implemented by the
court?
Levy of properties under Rule 39 should always be followed
by sale by public auction. We will not have execution if we
stop at levying of properties. The levy must always be
accompanied by a sale by auction. If there is only levy without
a sale by auction, then that levy can be nullified by the court.
It is the duty of the court to see to it that an actual levy of
properties should be followed by a public auction sale.
Under Rule 39 and under certain special laws, there are certain
properties of a judgment debtor that is exempt from levy. If
the property of the debtor that is exempt from execution is
levied upon, the levy is void, and the sale thereof is also be
void. The validity of an auction sale shall always stem from
the validity of a prior levy. Even if there is valid levy, but if
there are requirements not complied with before, during or
after auction sale, the sale will be void, and the buyer will not
acquire title to the property sold.
Terceria / Third-Party Claim
The principles in Rule 39 and Rule 16 are practically identical.
Terceria is predicated on the premise that the property levied
upon by the sheriff for the purpose of executing of the duly
entered judgment does not belong to the judgment debtor. If
the property levied upon belongs to another person, the levy is

not valid. Rule 39 expects that the property levied upon by the
sheriff belongs to a judgment debtor. If the sheriff makes a
levy on properties which do not belong to the judgment
debtor, you can expect the true owner to complain. The true
owner can file a complaint for the recovery of the real
property from the sheriff. The filing of such complaint of the
owner is just one of the several remedies which the owner can
avail of. In Rule 39, the remedy refers to the filing of a third
party claim.
Terceria, however, is not the only remedy available to the true
owner. He may have other remedies.
Q: What are the remedies available to a third-party
claimant in levy of real property?
A:
1. Summary hearing before the court which authorized
the execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment
creditors; or
4. Independent reinvindicatory action.
The remedies are cumulative and may be resorted to
independently of or separately from the others.
The sheriff shall not be liable for damages for the taking or
keeping of the property to any third-party claimant if there is
a bond filed by the winning party. If there is no bond, the
sale cannot proceed. However, the judgment obligee can claim
damages against a third-party claimant who filed a frivolous or
plainly spurious claim, and such judgment obligee can
institute proceedings therefor in the same or separate action.
Replevin is also a remedy of the true owner of the personal
property if it was improperly levied and sold
If the property is a real property, the true owner/third-party
claimant can file an independent action to prevent the sheriff
from selling the property.
The easiest and most practical remedy available right away to
the true owner is a Third Party Claim. It does not require the
filing of a complaint, just the submission of an affidavit to the
sheriff and to the court, setting forth his ownership and
entitlement to the possession, and that the property should not
be levied upon because this is not a property of the judgment
debtor. Evidence appurtenant thereto must be attached.
Q: Can the court render a judgment that will tell the
sheriff that the property is not the third party claimants
but that of the judgment debtor?
No. The third party claim is an incident to the execution
process, the trial proceedings are over insofar the court is
concerned. The court has no power to resolve an issue of
ownership involving the property levied upon. It should be
threshed out in a separate complaint. Regardless of a finding
by the execution court that the true owner is the judgment
debtor, that will have no bearing on the third party claimant.
That order will not be entered, it will not be considered a
judgment on the merits and will not constitute res judicata
insofar as a third-party claimant. If at all, the consequence of
the finding of the court is that the sheriff can go ahead with the
sale of the property.
Q: If the sheriff schedules the sale, can third party file an
independent action to stop the sale of real property?

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Yes, he can file the complaint in another court, RTC, for


injunction with claims for damages, if any.
Q: If the property levied upon is a personal property of a
third-party claimant, can the third-party file a complaint
for replevin?
Yes. The claimant must implead the sheriff and the judgment
creditor / judgment obligee.
Q: If the executing court is an RTC, and third party
claimant files a case for replevin, can he file it in the MTC?
Yes, as replevin is cognizable by the MTC depending upon the
value of the thing subject to the auction sale.
Q: Is this interference with the other court? Can the
sheriff in the other court claim that the seizure is
interfering with the proceedings of the other court?
No. The sheriff of the MTC can seize the personal property
from the sheriff of the other court.
Q: Cannot the sheriff of the MTC capitalize on the
provisions of Rule 60 on replevin that the writ of replevin
cannot be enforced when the property is subject to
attachment?
If you go to Rule 60, it is really a requisite in the issuance of a
writ of replevin. The issuing court can issue a writ of replevin
validly if the property to be seized is not under custodia legis,
not under a levy of execution or attachment. If the property is
subject of a levy on execution, it is under custodia legis.
But notwithstanding that provision in Rule 60, the SC said that
a writ of replevin issued by the MTC will prevail over the levy
on execution writ by the sheriff because the writ of execution
by the sheriff is void. Rule 60 assumes that there was a prior
valid levy on execution. For a property to be validly levied
upon, the property must be owned by the judgment debtor.
Otherwise, the levy is void. Therefore, the property can be the
subject of a seizure by another sheriff in compliance with a
writ of replevin issued by another court, even if it is an MTC.
It is proper for the MTC to issue a writ of preliminary
mandatory injunction directed against the sheriff to prevent
the sheriff from going ahead with the sale.
In Rule 39, if the property of judgment debtor has been
subjected to levy on execution, can it be subjected to
another levy on execution?
Yes. If there are several cases where the property is subject to
levy, it is possible the same property can be subject again to
another levy on execution. The debtor remains to be the owner
of the land, and the levy creates a lien only over the property.
The first levy annotated on the title of the property shall be
superior to the subsequent levies following the principle of
seniority. The SC held that if the property is the subject of
different levies, and the judgment debtor sells the property, the
sale is valid, as the judgment debtor is still the owner of the
property at the time of the sale. But the buyer must respect the
annotations of levies in the title as to the liens imposed. So, if
the property is sold at public auction sale later on in execution
of the first judgment, the person who bought it from the
judgment debtor stands to lose the property. The buyer is not
considered a buyer in good faith due to the said annotation of
the levies in the title.
Q: If the property was mortgaged by the judgment obligor
to a bank, can the sheriff still subsequently levy the
property?

Yes. The levy only creates a lien. The judgment obligor only
loses ownership if there was a public auction sale thereon. But
ownership shall not immediately be lost, so long as judgment
debtor still has the right of redemption.
Right of Redemption
If in cases where there are two different levies over the same
piece of land of the judgment debtor, usually, the property will
be sold as a result of the first levy of the property. If the
property is later on sold at public auction, and since the law
gives to the judgment obligor the right of redemption, this
right of redemption will also be enjoyed by the buyer.
Q: What is the rule on successive redemption?
The right of the first levy holder to redeem is a distinct right
from the second levy holder to redeem the property. If it is the
second holder who redeems the property, there could be
another redemption by the judgment debtor. Under Rule 39,
when it is the judgment debtor who redeems the property from
the highest bidder, other rights of redemption are cut off by
virtue of the redemption by the judgment debtor. There are
successive redemptions only if the redemptioner is not the
judgment debtor himself. If the one who redeems the property
is another lien holder, we can apply the rule of successive
redemption which says that another redemption can be had
within 60 days from the efficacy of the first redemption, even
if the one-year period for redemption has already expired.
For example, there are three redemptioners, one being the
judgment debtor. If the redemption is carried out by the
judgment debtor, the rights of redemption of the other two are
cut off. Redemption for all of them is one year from the
registration of the sale in the certificate of title. So we have to
assume that redemption should be within one year from the
registration of the certificate of sale in the certificate of title. If
the second levy holder redeems the property, then the third
levy holder can further redeem the property within 60 days
from the last redemption. But within the one-year period, the
judgment debtor can redeem the property, who upon his
exercise of his right of redemption, the rights of the others to
redeem will be cut off.
Q: Will this not cause prejudice to the other levy holders if
we cut off their right to redemption?
No, it will not. The levy holders will simply enforce their levy
since the property is in the hands of the judgment debtor. They
can have another public auction sale of that levied property.
In civil law, as well as in Rule 39, the SC has accepted the
principle that whenever there is a doubt in the interpretation of
redemption rules and laws, the interpretation should always be
in favor of the redemptioner, the judgment debtor.
Rule 39 is also very clear in saying that right of redemption
will exist only when the property sold at public auction is real
property. When the property levied upon and sold at public
auction is a personal property, there is no right of redemption.
Q: Why is there no right of redemption in the auction sale
of personal properties?
1. If personal property is sold in auction, and the price
generated is inequitably low, the sale is void. The
highest bidder does not acquire ownership of the
property. The court will issue an order declaring the
sale as ineffectual. Sheriff must schedule another
auction sale until the price generated is not
inequitably low.

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2.

If real property is sold at public auction, it does not


matter even if the price is inequitably low, the sale
will be valid. The low price will not render the sale
void because of the existence of the right to redeem
by the judgment debtor. If the price is very low, that
is advantageous to the judgment debtor, because if he
decides to redeem the property, he need only to
match the auction sale price.

Due to the above principles, the price generated during the


auction sale will be insufficient to pay the lien of the judgment
creditor.
Q: Let us say that the judgment creditor has a lien of 1M,
and a piece of land owned by the judgment debtor was sold
at public auction, but generated only 500K. It is not
enough to pay in full the award given to the judgment
creditor. The 500k will go to the judgment creditor, but
there is still a balance of 500k. When the judgment debtor
redeems the property, should he deliver to the sheriff 500k
or 1M?
The judgment debtor should deliver only 500k. He need not
deliver 1M because the price paid by the highest bidder was
only 500k.
Q: So, if the judgment debtor was able to redeem the
property by producing 500k, but the judgment creditor
was not yet fully paid, the judgment creditor will be
tempted to have another levy on the property. The
judgment creditor could really entertain that idea because
he has not yet been fully paid. In Rule 39, there must be
full satisfaction of the award to put an end to the litigation.
If the judgment creditor decides to have another levy on
the same property previously levied upon, but the property
had been redeemed by the judgment debtor, can the same
levying creditor carry out another levy on the same
property?
SC held that the same levying creditor cannot impose another
levy on the same property.
If the levying creditor wants to have full satisfaction of his
lien, he should make another lien on another property owned
by the judgment debtor. He could also avail of the other
remedies provided for in Rule 39 if he cannot get full
satisfaction of the judgment.
But this principle does not prevent other creditors from
levying the property that was already redeemed.

Yes. This shows the conversion of a legal redemption to


conventional redemption and is allowed by the NCC.
Q: How about they agree to reduce it to six months?
This is not possible. They may also extend the period, not
reduce it.
Fruits
Q: Who is entitled to the fruits of the levied property?
Rule 39 is clear. The fruits of the property sold at public
auction during the period of redemption shall redound to the
benefit of the judgment debtor when the redemption period is
still running.
The basis of course is that the judgment debtor still retains
ownership over the property.
Q: What are the rights of a judgment debtor during the
period of redemption?
1. To remain in possession of the property until the
expiration of period of redemption;
2. To collect rents and profits until the expiration of
period of redemption;
3. To use the property in the same manner it was
previously used;
4. To make necessary repairs; and
5. Use it in the ordinary course of husbandry.
Auction Sale
In the auction sale, anybody can bid, even the judgment
creditor. It is usually the judgment creditor who will be
offering the highest bid because the judgment creditor can
give an amount equivalent to the award given by the court. If
the award given by the court is 1M, then the judgment creditor
can give an amount as high as 1M. He need not turn over any
cash to the sheriff, because he will just tell the sheriff that he
will consider the 1M lien as fulfillment of his claim.
If a stranger is the highest bidder, this stranger is expected to
give the P1M to the sheriff.
Q: Can the judgment creditor be forced to shell out the
equivalent of the highest bid even if the highest bid is
exactly equivalent to the amount of his claim?
Generally, no. But if there is a third party claim, a terceria, and
the highest bid was that of the judgment creditor, the judgment
creditor must still shell out cash in order to be treated by the
sheriff and the court as the highest bidder.

Q: Lets do a little backtrack. Who may redeem the


property?
The judgment debtor, other creditors who has a lien
subsequent to the attaching creditor, and the assignee of the
judgment debtors right to redeem may all redeem the
property.

Q: Lets say there is a highest bidder other than the


creditor. To whom should he deliver the cash or issue the
check for?
He must issue the check to the order of the judgment creditor,
not the sheriff or the court.

Q: May the right of redemption be levied?


Yes. It could be a subject of a levy of execution, but not by the
same attaching creditor. For example, if A attaches Bs
property where it is eventually sold in an auction sale, another
creditor, C, may attach Bs right to redeem his property from
A. But A may not attach the same right of redemption because
this would negate the idea of giving the right of redemption to
the debtor in the first place.

Q: What happens if there is still a balance after auction


sale?
If the judgment creditor is not fully paid, there are other
options given to him in order to fully satisfy the claim:
1. File a motion in the court for an examination of the
judgment debtor.
2. File a motion in the executing court for the
examination of a debtor of the judgment debtor.
3. File a motion for the appointment of a receiver for
the remaining properties of the judgment debtor.

Q: The period of redemption is one year from the date of


registration of the certificate of sale. May the parties agree
that the period will be three years instead of one?

Under the second ground, if there is evidence to show that


these third persons really owe the judgment debtor certain
amounts of money, which are not exempt from levy on
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execution, the court can issue an order allowing the judgment


creditor to file a separate complaint for the recovery of these
accounts. Although the judgment creditor has no cause of
action against the third persons themselves, it is possible under
the Rules.
Receivership is allowed by the court, although the case has
already been terminated. This is one instance where a
provisional remedy can be used even after a case has been
decided by the court. The usual concept of a provisional
remedy is that they are availed of during the pendency of the
case, before entry of judgment. But in the case of receivership,
this remedy can be availed of under Rule 39 even if the case
has already been decided, judgment has been entered and is
now subject to execution.

THE PRINCIPLE OF RES JUDICATA


Res judicata under Rule 39 consists of two sections, Sections
47 and 48. Dean Jara advises to memorize these two sections.
For recitation purposes, definitely memorize these two
sections.
Section 47 is concerned with the effect of local judgment after
it is entered, and Section 48 is the effect of a foreign
judgment.
In our study of res judicata, there are 3 essential elements:
1. Identity of parties
2. Identity of causes of action
3. Identity of subject matter
Besides this identity element, there should also be:
1. A competent court;
2. An adjudication on the merits; and
3. The decision must have become final and executory.
Section 47
Section 47 comprises of three subparagraphs.
Subparagraph (a) has to do with a judgment in rem.

Q: Rule 39 implies that the petition to revive a dormant


judgment is an independent action. Will this not violate the
principle of res judicata?
No. Although there is identity of parties, there is no identity of
causes of action. The cause of action for the petition to revive
the dormant judgment, which is obviously the revival of the
dormant judgment, is different from the first case.
This is the same reason why Rule 47 will not violate the
principle of res judicata. Although the parties are the same, the
causes of action are not. The cause of action in Rule 47 is the
annulment of judgment of the court. It is different from the
cause of action in the first case.
Q: Are there any exceptions?
Yes. If you read FGU Insurance, there are exceptions to the
doctrine of immutability of judgment. These are:
1. The correction of clerical errors;
2. the so-called nunc pro tunc entries which cause no
prejudice to any party;
3. void judgments; and
4. whenever circumstances transpire after the finality of
the decision rendering its execution unjust and
inequitable.
Read: FGU Insurance v. RTC
Note: Dean Jara says there is a fifth ground involving a 2007
case. I cannot find it. The old notes say when substantial
justice so requires but he denies this is the fifth ground during
our recitation. Or Im just sleepy during that time. Anyway,
make more research, and read more notes. There is a fifth
ground, I just dont know what.
If you read Dean Albanos Survey of SC Decisions (San Beda
Law Journal, Vol. XLIX), Dean Jara might be referring to
either unjust enrichment or the courts exercise of its equity
jurisdiction.
Unjust enrichment is covered, however, by number 4, and
equity jurisdiction is more the reason, the root cause, why
these judgments, though immutable, may be still changed. So
theres that.

Subparagraph (b) has to do with judgments in personam.


And subparagraph (c) talks about conclusiveness of judgment.
This is also known as preclusion of issues.
Subparagraphs (a) and (b) are also known as bar by prior
judgment or preclusion of claims.
When the judgment is entered as contemplated in Section 47,
Rule 39, then the effect of the judgment is similar to a
judgment in rem or judgment in personam as the case may be.
The collateral principle that we adopt from this principle on
res judicata is the doctrine of finality of judgment, also known
as immutability of judgment.
Under this doctrine, a decision that has acquired finality
becomes immutable and unalterable, and may no longer be
modified in any respect, even if the modification is meant to
correct erroneous conclusions of fact and law, and whether it
be made by the court that rendered it or by the Highest Court
of the land. Any act which violates this principle must
immediately be struck down.

Q: How do you rectify void judgments?


A collateral attack since void judgments are ineffective
anyway, or a direct attack in the form of a petition for relief
from judgment or a petition to annul the judgment.
Q: What is a judgment nunc pro tunc?
It is a judgment intended to enter into the record the acts
which had already been done, but which do not appear in the
records. Its only function is to record some act of the court
which was done at a former time, but which was not then
recorded, in order to make the record speak the truth, without
any changes in substance or any material respect.
Judgment In Rem
Under subparagraph (a) the law says the judgment is
conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the
person.
This is the reason why a cadastral proceeding is considered as
an action in rem. The judgment in that litigation is conclusive
upon the title and is not conclusive upon the plaintiff or
defendant. Since the judgment in a cadastral proceeding is
conclusive upon the title of the property, that judgment will
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have to be binding against the litigants as well as anybody


who has an interest over the property, although these persons
might have not been involved in the litigation.
In the probate of a will, which is another procedure in rem,
when there is a decision of the court admitting the will to
probate, it is conclusive upon the will or administration.
Therefore, anybody who has an interest in the will must
respect the decision of the court.
But you will notice that there is a caveat when it comes to a
probate of a will: It is not conclusive as to the fact that the
testator is dead. There is only a disputable presumption, unless
proof thereof is presented. The reason for this is that in civil
law as well as in the Rules, it is possible that probate may be
commenced even when the testator is still alive, provided that
the probate of the will is initiated by the testator himself.
If a person has been issued a decree of adoption of a child
named Juan dela Cruz, the decree is conclusive upon the
personal status of that adoptee. Therefore, anyone who meets
the adoptee and transacts with him shall be bound by the
issued decree of adoption.
Judgment In Personam
Under subparagraph (b), the law says the judgment is
conclusive between the parties and their successors in interest
by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under the
same title and in the same capacity.
In letter b, when the law says that judgment is conclusive upon
the parties and their successors in interest as to matters
directly adjudged or as to matters that could have been
adjudged, that phrase litigating for the same thing and under
the same title and in the same capacity will refer, for
instance, to a compulsory counterclaim or a cross-claim. This
is because we learned that a compulsory counterclaim or a
cross-claim that is not raised in the same action shall be
barred. The reason they will be barred is because they are
matters that could have been raised in relation to the principal
action.
An example of an action in personam is reconveyance of
property. If the action is an accion reinvindicatoria, it is an
action in personam. Although real property is involved, still it
is an action in personam. It is an example of a real action that
is still in personam.
Q: Plaintiff won the case for reconveyance of property.
Judgment is entered. The plaintiff is now the owner of the
property insofar as the judgment is concerned. However,
X, the true owner of the property, filed a case for recovery
of the property. Is there res judicata?
No. There is no identity of parties between the first and second
case. There is therefore no res judicata.
Q: If there is identity in the subject matter, does it not
follow that there will be identity in the causes of action?
No. There could be identity as to the subject matter, but the
causes of action could still be different.
For instance, in accion reinvindicatoria, the subject matter
involves a piece of land. The case involves title to a piece of
land. If there was another complaint filed involving the same
piece of land, the cause of action could be different, although
they are referring to the same land. For instance, there could

be a case for unlawful detainer filed involving the same


property. Though involving the same property, the same
subject matter, the causes of action are different. Accion
reinvindicatoria involves recovery of title to property, while
unlawful detainer involves recovery of physical possession of
the property. The second case cannot be dismissed by reason
of res judicata since there is no identity of causes of action.
Q: What is the essential difference between a judgment in
rem and a judgment in personam?
The big difference is to whom the binding effect of res
judicata shall attach. If it is a judgment in rem, the judgment
shall be binding to the world. If it is a judgment in personam,
it is only binding between the parties and their successors in
interest.
Conclusiveness of Judgment
Subparagraph (c) of Section 47 is a kind of res judicata with
limited application. There could be identity of parties and
subject matter, but there is no identity of causes of action.
Thus, subsequent cases may prosper due to absence of res
judicata.
Q: The debt based on a promissory note was 1M payable
in two installments. The debtor defaulted in the first
installment. The creditor filed a case where creditor stated
that the PNs signature was forged. The court held that the
signature on the note was genuine. Then, the second
installment became due. Can another complaint be had?
Yes. Each installment gives rise to a separate cause of action.
Q: Can forgery be raised again on the promissory note?
No. The judgment on the first case is conclusive insofar as the
genuineness of the note is concerned.
Q: Lets have another example. A filed a case against B
where the issue is ownership of a certain building. It was
settled that A is the owner. B, however, filed another case
against A, but this time its possession of said building.
Will the case be dismissed under subparagraphs (a) or (b)
of Rule 39?
No. Although there is identity of parties (A and B) and
identity of the subject matter (the building), there are no
identity of causes of action. The question in the first case is
ownership. In the second case, its possession.
Q: May B raise the question of ownership in the second
case?
No, he may not. Although there is no identity of causes of
action, conclusiveness of judgment shall apply. The same
issue of ownership has been tackled before in the first case. As
to that particular issue, between the parties, it is now res
judicata. The second case, however, will still proceed.
Law of the Case
Q: State the principle of law of the case.
This refers to questions of law that arise out of one case, and
the question of law is brought on appeal to a higher court. If
that question of law is finally resolved by the appellate court,
and the decision of that appellate court has become final and
executory, that decision of the appellate court on this
particular question of law shall be binding when the case is
remanded to the trial court for further proceedings.
For example, A filed a case against B in the RTC. B filed a
Motion to Dismiss. The court denied the Motion to
Dismiss. B raised the issue to the CA by certiorari. The CA
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resolved the issue of jurisdiction. The court affirmed the


denial of the Motion to Dismiss. The CA says, Yes, the
court has jurisdiction. B filed an answer. The court
continued to hear the case.
After trial, of course, the court rendered a decision. The
decision is in favor of A. B appealed to the CA. May he
assign as an error during appeal the question of
jurisdiction?
No, he may not. He can no longer raise this as an issue since
this has long been resolved by a higher court in a prior petition
for certiorari and prohibition. As long as the parties remain the
same and the facts have not changed, the decision of the
appellate court on this issue of jurisdiction will continue to be
binding as the law of the case between the parties.
The law of the case is almost similar to conclusiveness of
judgment except the law of the case pertains only to questions
of law and these questions must have been decided by a higher
court.
Foreign judgments in rem and in personam
If the foreign judgment is in rem, it is conclusive upon the title
of the thing. If the judgment is in personam, there is only the
presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title.
Q: There is a foreign judgment rendered by the Japanese
Court. The relief which the creditor stated in the Japanese
court is the fulfillment of an unpaid loan of 100k. The
Japanese court decides the case in favor of the debtor. The
debtor is required to pay the 100k in the Japanese court.
The Japanese court had not executed the judgment.
Somehow, the debtor and creditor were now living in the
Philippines. The judgment debtor has accumulated certain
properties in the Philippines. Can the judgment creditor in
that Japan case file a motion for execution in the
Philippine courts?
No. The Philippine court cannot entertain the motion as it
knows nothing about the claim of the judgment creditor
against the judgment debtor in the Japan case.
Q: Is there a remedy available to the judgment creditor to
enforce the judgment of the Japan court in the
Philippines?
Yes, the remedy is found in Section 48 (b) of Rule 39. The
judgment from the Japanese court is a presumptive evidence
of the judgment creditors right against the judgment debtor.
Q: How does the judgment creditor make use of that rule
that the decision of the Japan court is presumptive
evidence of his right against the judgment debtor?
The judgment creditor should file an independent complaint
for the enforcement of decision of the Japan court. The only
evidence that he needs to convince the court is to present a
certified true copy of the decision rendered by the Japan court.
If he is able to present a certified true copy of the decision to
the Philippine court, the court will then apply the presumption
given under Section 48(b) Rule 39.
In Section 48, there is a last paragraph talking about repelling
of a foreign judgment. A judgment of a foreign court can be
repelled by:
1. Evidence of want of jurisdiction
2. Want of notice to the party
3. Collusion
4. Fraud

5.

Clear mistake of law or fact committed by the foreign


court

Hence, if the creditor files a case for the enforcement of the


decision of the Japan court, the judgment debtor can present
evidence that will repel the foreign decision, such as want of
jurisdiction.
Q: Can all these grounds repel a local judgment?
No. The defenses available for repelling the execution of a
foreign judgment are not availing to repel a local judgment.
Q: Why cannot the defendant oppose the execution of a
local judgment using the grounds to repel a foreign
judgment?
We do not allow a motion for execution to be denied on the
argument based on want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact
committed by the court because that will be a collateral attack
on the judgment, which is generally not allowed under the
Rules.
We can only allow a direct attack on the judgment by filing a
petition to annul that judgment, on the ground of lack of
jurisdiction over the subject matter, lack of jurisdiction over
the person of the defendant or extrinsic fraud. We cannot use
these grounds to collaterally attack the judgment in our
system.
When we say collateral attack, the person attacking the
judgment does not file a separate complaint for the purpose of
having that judgment set aside. If he only opposes a motion
for execution, and the ground is that of lack of jurisdiction
over the case, it is not allowed since that is a collateral attack
on the judgment.
Section 48 allows collateral attacks only against a foreign
judgment, which cannot be allowed insofar as local judgments
are concerned.
With respect to collusion and fraud, they are also grounds to
attack directly the judgment under Rule 47 (Annulment of
Judgments), and under Rule 38 (Petition for Relief from
Judgments). What cannot be done is a collateral attack against
a final and executory judgment.
Q: When can a collateral attack be had against a
judgment?
When the judgment is patently void on its face, it is vulnerable
to collateral attacks.

PROVISIONAL REMEDIES
Provisional remedies are also called interim reliefs or
provisional orders. They are called provisional because they
are only temporary, auxiliary. It is not possible for the plaintiff
to file a complaint solely for the purpose of obtaining any of
these provisional remedies.
Q: What are the Provisional Remedies under the Rules of
Court?
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)

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Q: The enumeration of provisional remedies in the rules is


no longer exclusive. What are other provisional remedies
available?
1. Writ of Habeas Data
2. Writ of Amparo
3. The provisional remedies under a writ of amparo:
a. Protection Order
b. Production Order
c. Witness Protection Order
d. Inspection Order
4. Provisional Remedies in Marriage-Related Cases:
a. Spousal Support
b. Child Support
c. Visitation Rights
d. Temporary Custody of Minor/s
e. Hold Departure Order
f. Protection Order
g. Administration of Common Property

5.

See: A.M. 02-11-12-SC


Provisional Remedies under a Writ of Kalikasan:
a. Temporary Environmental Protection Order
(TEPO)
b. Preliminary Attachment
c. Cease and Desist Order
Also, these discovery measures that appears to
be considered as provisional remedies:
d.
e.

Ocular Inspection Order


Production Order

Q: What is the common element of provisional remedies?


There is a pending principal action, except when the
provisional remedy by itself is or can be treated as a principal
action, such as Replevin, Writ of Amparo and Writ of Habeas
Data.
We cannot file an independent action solely for the purpose of
obtaining as a principal relief any of these provisional
remedies.
For example, a creditor cannot file a case solely for the
purpose of obtaining a preliminary attachment. Preliminary
attachment should be a relief prayed for in an independent
case.
Support pendente lite cannot be a principal action, but there
can be a principal action called a complaint for support, with
application of the provisional remedy of support pendente lite.
Writ of Amparo and Writ of Habeas Data are actions in
themselves, but may be treated as provisional remedies. If
there is a criminal case already filed involving the
disappearance of a person, that criminal action being the
principal case, a writ of Amparo or a writ of Habeas Data may
be used as a provisional remedy.
Although we have several provisional reliefs, interim reliefs or
provisional orders, it is incorrect to assume that they are the
same. These different circulars have not adopted the
provisions in the Rules of Court (Rules 57 to 61).
If you will notice under Rules 57 to 61, one of the common
requirements is the posting of bond by the applicant (except
support pendente lite). For example, we have an attachment
bond, receivers bond, production bond, and the like.
In the circular on marriage-related cases, the family court can
grant these provisional orders with or without bond at the

discretion of the family court. Also, in the same circular, the


family court can grant these provisional orders with or without
a hearing, which is similar to some provision in the Rules that
some remedies can be granted ex parte.
In the Amparo circular, when it comes to the provisional relief
of a Production Order and Inspection Order, there must be a
motion filed by the applicant and a hearing conducted. In the
case of a Witness Protection Order and Protection Order, they
can be issued ex parte.
In the Amparo circular, there is nothing mentioned about the
posting of a bond by the applicant.
In the circular for the Writ of Kalikasan, the issuance of
Temporary Environmental Protection Order (TEPO) does not
require a bond. Just like preliminary injunction, there can be
TRO good for 72 hours, but can be extended until the end of
the case. What is peculiar is that the party required to post
a bond in a TEPO is not the applicant but the adverse
party who will apply the lifting of the TEPO. When the
adverse party moves for the lifting of the TEPO, the adverse
party is required to file a bond to protect the other party.
In most preliminary reliefs, it is the applicant who files a bond.
The filing of a counterbond will lift the preliminary relief. The
same is true with a TEPO, but the applicant does not have to
file a bond. If the TEPO is issued, and the adverse party wants
to have the TEPO lifted, he will be required to post a bond to
protect the interest of the applicants.
A common rule of provisional remedies that is also applicable
to the issuance of the interim reliefs is that the interim relief or
provisional order is always interlocutory; it is not a final order
and has nothing to do with the merits of the case. Appeal is
not allowed.
The accepted remedy to challenge the issuance of a
provisional remedy or interim relief or a provisional order is
Rule 65, but in some circulars, that also has been changed
substantially.
For instance, under summary procedure, when it grants a
provisional order, it is not appealable, and the adverse party
cannot file a petition under Rule 65. The reason is that the
application of availment of Rule 65 in order to challenge an
interlocutory order is prohibited under summary proceedings.
Likewise in Amparo, there is a similar provision stating that
the grant of provisional order is interlocutory and Rule 65 is
not available, being an express prohibited pleading.
In the circular of Kalikasan, the issuance of TEPO is also
interlocutory. Although TEPO can be challenged, the problem
is that the challenge on a TEPO can only be filed before the
SC under Rule 65. Only SC can entertain a petition assailing
the issuance of a TEPO.
Q: May MTC grant interim relief?
Yes. This has been settled under BP 129. Under Sec. 33 of BP
129, it is clearly provided that MTCs have authority to grant
provisional remedies so long as it has jurisdiction over the
principal case.

PRELIMINARY ATTACHMENT

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You will notice in Section 1 that there are six (6) instances
where one can file for the relief of preliminary attachment. In
the first five, there is a common denominator, intent to defraud
the applicant.
The last is closely related to Rule 14, i.e., summons. The
applicant is moving for an interim relief in order to enable him
to secure for himself a judgment in court by attaching the
properties of the party who otherwise could not be served with
summons in any manner, including publication. When
property of the absent party is attached, the action in personam
will be converted to an action in rem or quasi in rem by virtue
of a preliminary attachment issued by the court and actually
implemented by the sheriff.
Except for the last part of Section 1, the only purpose of the
applicant in moving for the issuance of a writ of preliminary
attachment is to obtain a security for any judgment that may
be rendered later on by the trial court in his favor.
If we will note the cases enumerated in Section 1, the conduct
of the adverse party is criminal in character. The fraud
committed could be a criminal fraud or a civil fraud. The
conduct should fall in any one of the instances under Section 1
of Rule 57.
Thus, the issuance of a bouncing check can cause the filing of
an information and an application for attachment of properties
of the drawer. There is fraud in the performance of an
obligation. Under the NCC, there is fraud either in the
performance of an obligation (dolo incidente), or in
contracting (dolo causante, a deception employed by one party
prior to or simultaneous to the contract in order to secure the
consent of the other). In both instances, they are justification
for the issuance of preliminary relief.
Q: A borrower obtains a loan from a bank and later on the
borrower became addicted to gambling. He loses tons of
money and he defaults in the payment of the loan. The
bank naturally filed a complaint for the recovery of the
loan. May the bank ask to levy the properties on the
ground that the borrower is a gambling addict?
No. This is not one of the grounds enumerated in Section 1,
Rule 57.
Q: Supposing the plaintiff has a creditor that holds
collateral. If there is default in payment of indebtedness,
and there is a case of collection with allegation of intent to
defraud, can the creditor move for preliminary attachment
over properties other than the collateral?
Yes. Although applicant may already have a security or a
collateral in hand, the court may still grant preliminary
attachment if the applicant proves such collateral/security is
insufficient to satisfy the debt. Thus, creditor can look for
other properties of the debtor sufficient to secure the
obligation due once the court grants preliminary attachment.
Q: When may preliminary attachment be asked and
issued?
It may be issued from the commencement of the action until
the judgment is entered. It is quite long and may even be
applied for even during appeal.
Q: What should the application for preliminary
attachment say?
The application should be verified and contain the following:
1. A sufficient cause of action exists;

2.
3.
4.

That the case is one of those mentioned in Section 1;


That there is no other sufficient security for the claim
sought to be enforced; and
That 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 the sum for which the order is
granted above all legal counterclaims.

The applicant must also post an attachment bond, the value of


which shall be determined by the court.
In preliminary attachment, there are two rules that are
applicable to preliminary attachment as well as other
provisional remedies in the Rules when they are granted ex
parte:
1. Prior and/or contemporaneous service of summons
2. Principle under Section 20 Rule 57
Prior and/or contemporaneous service of summons
For a court to act validly, the court must acquire jurisdiction
over the cause of action, the person of the plaintiff and the
person of the defendant.
Preliminary attachment is available even before jurisdiction
over the defendant can be had. The plaintiff only had to post a
bond and prove during hearing ex parte that the grounds under
Section 1 are complied with. To carry out the writ, the sheriff
must first serve the summons and then the notice of
attachment, or serve them contemporaneously. This will
remedy the lack of jurisdiction by the court over the person of
the defendant.
This principle is applicable to all provisional remedies that
may be granted ex parte even before the court has gained
jurisdiction over the person of the defendant. This can be
applied, for instance, in preliminary injunction and the
preliminary relief of replevin.
Q: Why is preliminary attachment allowed to be heard ex
parte, even before the defendant may answer?
The plaintiff is contending before the court that the defendant
is truly a dishonest person. If the defendant be allowed to
know about the application for preliminary attachment, and he
truly is dishonest, there is great danger, a great possibility, that
he will continue his acts of dishonesty and hide all of his
properties from the court.
This is true for all the grounds under Section 1, except the last.
Under the last ground, where the defendant is not a resident
and is not found in the Philippines, the purpose is to obtain
jurisdiction over the case.
Q: What happens if the summons is not delivered?
The attachment is void, except if:
1. The summons cannot be delivered personally or by
substituted service despite diligent efforts;
2. the defendant is a resident of the Philippines
temporarily absent therefrom;
3. the defendant is a non-resident of the Philippines; or
4. the action is one in rem or quasi in rem.
Q: Who takes possession of the attached property?
It depends.
If properties of the defendant are going to be subject to
attachment, and these properties are those capable of delivery,
like a car, they will be seized in custodia legis so long as the
preliminary attachment is not lifted. But the property will not
be delivered to the plaintiff, nor used by the defendant. It will
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be in the custody of the court. If the court takes three years to


decide the case, the property will be under custody of the court
for three years.
In case of real property, the title will be annotated with a lien.
The owner will not lose ownership or possession. He can sell
it, but the buyer will be notified via the annotation on the title
that there is a lien and it is possible that the property can be
subject to auction sale later on. The buyer could stand to lose
his title on the property. The buyer cannot be considered a
buyer in good faith. He will always be a buyer with notice of
the existence of the preliminary attachment.
If the defendant has a sizable bank account, the sheriff will
simply prepare a writ of garnishment and serve it upon the
bank. When the bank receives the writ, the bank will freeze
the account up to the amount of the claim. And if the bank
account is frozen, the defendant cannot use these funds
anymore. The bank will not allow him to withdraw. If it is a
checking account and the defendant issued checks thereon, the
bank will dishonor the checks that are presented to it. Thus, a
preliminary attachment is a serious derogation of the rights of
ownership of the defendant.
In that writ of garnishment, which is also applicable to Rule
39, there will be a new relationship created as an incident to
the case, which we call forced intervention the bank,
whether it likes it or not, will be subject to orders of the court.
So if a bank account is garnished, whether the bank likes it or
not, the bank will be forced to follow the orders of the court,
in the sense that the bank will have to freeze the bank account
of the defendant.
Q: Is it possible that a property under custodia legis be
subject to preliminary attachment?
Yes. The court that issued the preliminary attachment,
however, will not take over the control of the property
attached.
Q: May there be multiple attachments over the same
property?
Yes. It is possible. The reason is because a preliminary
attachment only creates a lien over the property that has been
attached, and that lien is not a certainty because the court will
still try the case. If the court later on rules against the
applicant, the lien will be set aside.
Q: What if the property is under mortgage? May it be
attached?
Yes. The preliminary attachment will only create a lien over
the same property. The mortgage also creates a lien over the
property. In this case, the principle of seniority of liens shall
apply. The mortgage lien, since it was made earlier than the
attachment, will be the senior lien. The preliminary attachment
will only create a junior lien.
Terceria
The rules on terceria or a third-party claim under Rule 39 shall
apply to preliminary attachment. The only difference between
Rule 39 and Rule 57 is that the third party in Rule 57 may
intervene, he may file a motion for leave of court to intervene
with the case. This is not at all possible in Rule 39 because
Rule 39 presupposes that there is already a final and executory
judgment. The right to intervene ends upon the entry of
judgment.

Q: How is preliminary attachment lifted?


1. File a cash deposit with the court equal to the
attachment bond;
2. File a counterbond via surety authorized by the court;
or
3. File a motion for lifting the preliminary attachment
due to being improper or irregular.
Q: If the defendant has already posted a counterbond and
the preliminary attachment has already been lifted, can he
apply for reversal of the order granting preliminary
attachment?
Yes. Even if the defendant has caused the lifting of the
preliminary attachment by payment of cash deposit or by
counterbond, he can still file a motion to lift the preliminary
attachment. This is because he has put up counterbond or cash
deposit enough to secure the satisfaction of the claim of the
plaintiff in lieu of the property. If his motion is granted, he
will obtain the counterbond or cash deposit.
Principle under Section 20, Rule 57
Q: If there is a pending case and the applicant wins, there
is now a judgment on the merits in favor of the applicant.
Can the losing party, the defendant, still hold the applicant
liable for improper or irregular attachment even if he lost
the case?
Yes. If the applicant eventually wins the case, it means the
applicant has a cause of action. But it does not necessarily
follow that the cause of action falls under Section 1 of Rule
57. He may not have been able to prove dishonesty or intent to
defraud. So, if the applicant failed to prove that his case falls
under the cases mentioned in Section 1 of Rule 57, it means
that the issuance of the court of the writ of preliminary
attachment was irregular and improper. The only instances the
court should grant preliminary attachment are the instances
mentioned in Section, 1 Rule 57. If the defendant wins the
case, the applicant shall be liable for damages as a matter of
course. But Section 20 is the procedure to be followed in
rendering the applicant liable for damages for a wrongful or
improper issuance of a writ of preliminary attachment.
The first principle under Section 20 Rule 57 is that the
recovery of damages should be had in the same case, not in
an independent action. The adverse party must submit an
application for damages for improper issuance of writ of
preliminary attachment. The most practical way of informing
the court right away is to set up in his answer a compulsory
counterclaim for recovery of damages. If the defendant did set
up a counterclaim for recovery of damages, and then the
defendant eventually wins, he will just file an application
through a motion to conduct a hearing on the extent of liability
to which the defendant is entitled to recover.
It is not possible for the defendant who has won the case to
file a separate complaint for recovery of damages arising out
of a wrongful attachment. If he did so, that independent case
will be dismissed, even motu propio. due to res judicata.
Under Section 20, Rule 57, it is very clear that the extent of
damages to be recovered need not be equivalent to the
attachment bond filed in court. If the attachment bond is
insufficient, the defendant may avail of a levy of execution
under Rule 39.
Remember that Section 20 of Rule 57 is applicable to
preliminary injunction, receivership, and replevin.

Lifting or Setting Aside of the Preliminary Attachment

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REPLEVIN
Replevin is accepted as a main action and as a provisional
remedy at the same time. Recovery of possession of property
capable of manual delivery is termed a complaint for replevin.
It automatically rules out a real action.
In replevin cases, without an application of a provisional
remedy of a writ of replevin, the plaintiff recovers possession
of a personal property only after the case has been decided in
his favor. So, if the plaintiff filed the case today for recovery
of a car without an application for the provisional remedy of a
writ of replevin, and the case was decided five years later, the
car shall remain under the possession of the defendant during
those five years. Chances are, by the time the case is decided,
the car may already be in bad condition. That is the role of a
writ of replevin. If the plaintiff files a complaint today for the
recovery of a car, if he wants to gain possession of the car
right away, he should file an application for a writ of replevin
in order for him to immediately gain possession of the car.
Writ of replevin is tilted always in favor of the applicant. The
court can grant the motion or application ex parte. This is one
provisional remedy which cannot be granted by an appellate
court. Only the court of original jurisdiction can grant it
because this can be granted only before the defendant answers.
But, like preliminary attachment (PA) in some circumstances,
there must be prior/contemporaneous service of summons to
cure the defect in jurisdiction over the person of the defendant.
Once served, the sheriff will seize the personal property.
To repeat, replevin is only available as a provisional remedy
before the defendant answers.
The value of the bond required is different than the other
provisional remedies. The bond is double the value of the
property subject to seizure as alleged in the complaint. The
trial court has no authority to increase or decrease the bond. It
will be based solely on the value of the property as alleged in
the complaint.
Also, if the sheriff finds that the property is not in possession
of the defendant but a third person who is not a litigant, and
said person claims ownership of the property, the sheriff has
no authority to seize the property.
The solution to this is to advise the plaintiff to implead 2
defendants, one who was known by the plaintiff to possess the
thing subject to the complaint and an unknown defendant. As
a result, the sheriff can rightfully seize the car from anybody
who might be in possession, as long as the unknown defendant
is impleaded in the complaint.
The sheriff has a five-day holding period after seizure. If there
is no challenge on the sufficiency of the replevin bond, the
sheriff shall turn over possession to the plaintiff. This is the
advantage of replevin, it immediately enables the plaintiff to
recover possession of the personal property that is the subject
of litigation.
Within the holding period of 5 days, the defendant can file a
motion to challenge the sufficiency of the bond.
If a 3rd person claims to be a true owner of the thing (like in
Rule 57 and Rule 39), he must file a third-party claim with the
sheriff. But in replevin, the third party claim must be filed
within the 5-day holding period; otherwise, the third party

claim is useless. After the fivew-day holding period, the


sheriff shall deliver the car to the applicant.
Q: A complaint for replevin was filed by X for recovery of
a car. The court issued the writ but the sheriff submitted a
return saying he cannot enforce the writ as the car can no
longer be found. What the plaintiff did after receiving the
return was to file another application for Preliminary
Attachment of the properties of the defendant based on the
same complaint on the ground that the defendant has
gotten hold of the property fraudulently and that he has
hidden the car so it cannot be found and be subject to
seizure. Is this proper?
The conversion of application for a writ of replevin into one
for an issuance for PA is not proper. SC held that if plaintiff
does not succeed via replevin, he cannot use PA. If he desires
to use PA, he should overhaul his complaint. The allegations
for the application for a writ of replevin are different from that
for issuance of a writ of PA. In application for issuance of a
writ of replevin, the plaintiff alleges he is the owner or entitled
to possession. PA is for security purposes, the ownership of
the property subject to it belongs to the defendant, not a
property of the plaintiff.
Q: May a property under preliminary attachment be
subject to a writ of replevin?
No. The property, if under preliminary attachment, is under
custodia legis. Remember that in PA, if it is a personal
property, the sheriff will obtain the property and put it in
custodia legis.
Q: May a property previously subjected to a writ of
replevin be further subjected to another writ of replevin?
Yes, this is possible. The property is not under custodia legis.
It is under the possession of the last person who had the writ
of replevin issued.
Also, in replevin, the decision of the court can be in the
alternative. If the property itself cannot be delivered, the value
of such property can be delivered to the prevailing party.
Q: What if the party wishes to obtain possession of a real
property? What is his remedy if not replevin?
The party may make use of preliminary mandatory injunction
(PMI). This is not only recognized in the Rules but also the
NCC.

PRELIMINARY INJUNCTION
The principal action could be any action coupled with an
application for a TRO or a writ of preliminary injunction. A
special action for certiorari under Rule 65 is usually
accompanied by a verified application for TRO and writ for
PI. The relief usually asked for in Rule 65 is for a writ to
prevent or prohibit the respondent court from going ahead
with the case pending before the court, or in case of certiorari,
to set aside the decision or interlocutory order of the
respondent court. Preliminary injunction and TRO can be
availed of in any civil proceeding where the principal relief
sought by the applicant or petitioner is to prevent an act or
compel performance of an act. PI can also be had in criminal
cases or special proceedings, as long the principal relief is to
compel or to prevent the performance of an act.
Q: Who issues injunctive relief?

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It may be granted b the court where the action is pending. If


the action or proceeding is pending in the CA or the SC, it
may be issued by the court or any member thereof.

1.

Although the Rules state that any member of the CA may


issue a writ of preliminary injunction, the internal rules of the
CA state that when there is a motion filed to lift or set aside
the PI, the member who caused the issuance of the writ must
consult the other members of the division. He may not
unilaterally decide the case alone. The reason is that the
member himself issued the writ. If he alone decides whether or
not it is effective, he of course will decide the case in his
favor.

3.

Q: What is the difference between PI and PMI?


PI is prohibitive, while PMI seeks the performance of a
particular act or acts. PMI applies where the act sought to be
prevented has already been done but the applicant wishes to
restore the status quo. Whether or not the case is PI or PMI,
the rest of Rule 58 shall equally apply.
There are two provisional remedies contemplated under this
Rule:
1. Temporary Restraining Order (TRO)
2. Writ of Preliminary Injunction
Both require an injunction bond.
As a general rule, the court cannot grant TRO or a writ of PI
without a hearing, unlike preliminary attachment. You should
always expect a summary hearing, with notice to both parties,
to be conducted.
TRO can be granted ex parte, by way of exception, in
instances when there is grave and irreparable injury that will
be caused to the applicant, and in no way shall the total period
of the TRO be longer than 20 days. The court will still fix a
TRO bond. During the 20-day period, the court will still
conduct a hearing to determine whether or not a writ of PI will
be needed.
PI, on the other hand, absolutely requires a summary hearing.
A court cannot grant a PI without a hearing. There is no
exception. It is only in the issuance of a TRO where there is an
exception to the general rule where it can be issued ex parte.
Q: What is the meaning of the phrase irreparable injury?
It means it is an injury that is of constant and frequent
recurrence, not necessarily involving money, by reason which
a fair redress could not be had in a trial court.
Do not forget the modifications of a SC Circular to Rule 58. It
states that if a court has issued a writ of PI which has no term,
the court that issued such writ of PI must decide the principal
action within a period of 6 months. This is the modification in
that circular. If the court does not place a limit of six months
to decide the principal action, the writ will effectively be a
perpetual injunction because it is effective until the case has
finally been decided. If the court grants the PI today, it has
only 6 months within which to decide the case. In deciding the
principal case, the trial court could rule in favor of the plaintiff
or defendant. If it ruled in favor of the defendant, the PI is
automatically lifted, meaning the plaintiff has no right at all to
ask for the writ of PI.
Although the authority of the court is very broad in the
issuance of a writ of PI, there are instances where a court
cannot grant a writ of PI or TRO:

2.

4.

5.
6.

In the enforcement of Kalikasan Statutes (except the


SC, as only SC is authorized to issue TRO or PI in
Kalikasan cases)
If there is a TEPO issued by any court (it is only the
SC that can prevent the carrying out of the TEPO)
In case of infrastructure projects of the national
government (only the SC that can prevent the
carrying out of the project)
When it is a government bank that forecloses the
mortgage (only the SC that can prevent the carrying
out of the foreclosure, either judicial or extrajudicial)
The court has no authority to grant injunctive relief
against the BoC. (violation of separation of powers)
The court cannot grant injunctive relief against
deportation of aliens (violation of separation of
powers)

Q: What is the relief of the person against whom an


injunctive writ has been issued?
If we compare the remedies available to a defendant against
whom an injunctive writ has been issued to a person whose
property has been preliminary attached, in Rule 57, in PA, if
the defendant files with the court a counterbond, the lifting of
the PA is ministerial to the court. The properties will be
returned. In PI, the PI cannot be lifted without a hearing
despite posting of counterbond. The court cannot rely on the
filing of a counterbond to lift the PI, as it has to study the
merit of the lifting of the injunction. It is not a matter of right
of the adverse party to expect the injunction court to lift the PI
just because of the filing of a counterbond. The reason why
the Rules do not make it a ministerial duty of the court to lift
the PI simply because there is a counterbond is due to the
ground of grave and irreparable injury. The injury cannot be
measured exactly, there is no mathematical formula to
determine extent of damages that applicant can suffer in
injunction cases.
We should always relate PI to forcible entry and unlawful
detainer in the NCC. The MTC is expressly allowed to grant a
Preliminary Injunction or Preliminary Mandatory Injunction.
The NCC contains some procedures in matters pertaining to
Forcible Entry or Unlawful Detainer. In the NCC, which is
copied by Rule 70, it is provided that the court can grant PI or
PMI in cases of ejectment. If the MTC grants PI or PMI, that
cannot be appealed or challenged by a petition under Rule 65.
Under the rule on summary proceedings, Rule 65 is a
prohibited pleading in summary proceedings in challenging an
interlocutory order.
But when that ejectment case is appealed to the RTC, in the
exercise of its appellate jurisdiction, the NCC, as well as the
Rules, provides that the RTC can grant PMI or PI if applied by
the plaintiff/applicant. The PI or PMI granted by the RTC as
an appellate court remains unappealable because it is
interlocutory, but can now be challenged under Rule 65. This
is because summary procedure is in effect while the case is in
the MTC, whereas on appeal in the RTC, the regular
procedure applies, and challenge under Rule 65 is allowed.

RECEIVERSHIP
Receivership has a feature not present in other provisional
remedies. Provisional remedies are contemplated to be used
during the pendency of the case. In receivership, the court can
appoint a receiver not only during the pendency of a case but
also after the judgment has been issued or in the process of

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execution of said judgment. This feature makes this remedy


unique. There is no fixed time in which a court can appoint a
receiver.
Relate this to the remedies of a judgment creditor in Rule 39
when he is unable to recover full satisfaction of his account.
Under Rule 39, the judgment creditor can ask for examination
of the judgment debtor for any properties. If there are still
properties present, the judgment creditor can apply that such
properties be placed in receivership.
There always has to be a summary hearing. No ex parte
appointment of a receiver is allowed.
The grounds for appointment of receiver are quite broad.
Whenever the court feels that there is a need for the
appointment of a receiver to preserve the property in litigation,
it shall do so.
The property, however, has to be in litigation. The court
should not appoint a receiver if the effect would be to
dispossess the parties. The remedy of receivership is not
intended to dispossess the possessor of the property during the
pendency of the case.
The Rules also provide in foreclosure of a mortgage, the
mortgagee can move for the court to have the mortgaged
property placed under receivership, even if there is no proof
that the collateral will be lost or deteriorate. This can be done
when the deed of mortgage contains a stipulation authorizing
the mortgagee to move for the appointment of a receiver. But
generally, the purpose of receivership is to preserve the
property under litigation from loss or deterioration.
Q: Who does the receiver represent?
SC held that the receiver is not a representative of either
party. It classified the receiver as a representative and an
officer of the court. As a result, the receiver cannot file a case
as a receiver without the consent of the court. If a receiver
needs to file a case to recover certain properties under
receivership, he needs permission from the court to do so. On
the other hand, if a third person has a grievance against the
receiver in his capacity as a receiver, the third person cannot
simply file a case against such receiver because that third
person must seek permission of the court first. We find here a
situation where the filing of a case will need permission of the
court. If not granted, that action will fail.
Practically every issue is left to the court. The court
determines how much compensation to give to the receiver,
the qualifications of a receiver, how many receivers may be
needed. If the court can appoint a receiver, it can also fire him
and appoint a new one, whenever there is a need to preserve
the property.
There is another feature in receivership that is not found in the
other provisional remedies. In receivership, there are two
bonds:
1. Bond of the applicant
2. Bond of the receiver
The applicant should manifest that he is able to post bond.
Once the court appoints the receiver, the receiver shall also
post a bond. The receivers bond is designed to protect the
parties to the litigation from any abuse or mischief by the
receiver in the performance of his duty.

SUPPORT PENDENTE LITE


This is found under the Rules and also mentioned in the SC
Circular on Provisional Remedies in Marriage-Related Cases.
In fact, the circular of the court is more expansive. It does not
only mention support pendente lite, but also classifies it into
spousal support and child support, and are treated differently.
Under the circular, the Family Courts can grant both spousal
support and child support even without hearing and without
requiring the filing of a bond.
This is different in trial in courts that are not functioning as
family court. This is because under the Rules of Court, it is not
proper for an ordinary court to grant an application of support
pendente lite without conducting a hearing. Under the Rules,
support pendente lite can only be allowed after a hearing, and
the applicant and respondent are given the chance to explain.
The reason why this is required in the Rules is because a court
cannot conceivably issue an order unless the court is able to
determine that the petitioner needs support, and even if the
fact that the petitioner does need support is proven, to
determine that the respondent is capable of grant such support.
This is because if the court simply grants an application for
support pendente lite without examining the financial ability
of the respondent, the provisional remedy will be useless. If
the respondent cannot comply, as he had no means to give
support, he could be jailed. This is one action where the court
can imprison a respondent who does not comply with its order
to give support, although the respondent really may not have
the ability to really do so.
There are in fact three remedies in case of violation against
giving of support under substantive law:
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against the violator
under Rule 39
Of particular interest is the third remedy. Although Rule 39
generally applies only to final judgments, a writ of execution
may be used to enforce support pendente lite.
Under the Rules, you will notice that the principle in Section
20, Rule 57 is not followed at all. As a general rule, the
remedy to recover damages in wrongful issuance of
provisional remedies should be in the same case. There must
be no separate action to recover damages. But if you read the
provisions for support pendente lite, it is expressly provided
that there could be an independent action for recovery of
money given as support in compliance with an order of the
court.
If you are asked why the Family Court can order support
without a hearing, just state that there is no need to determine
the needs of the spouse or of the minor children, there is no
need for the court to determine the financial ability of the
defendant, because in family-related cases, there is a need for
an inventory of properties submitted to the Family Court by
the petitioner. Based on the inventory, the court can conclude
how much the spouse is entitled and how much the minors are
entitled to support.
Q: Since the applicant is not required to post a bond, what
may the defendant do if he eventually proves the applicant
is not really entitled to support?

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The party may go after the person who is supposed to give


support or he may go after the beneficiary to refund the
money. These remedies are quite impractical because it is
really possible that the beneficiary has already used the
money.
Other Provisional Orders in Marriage-Related Cases
Also, with respect to the provisional orders granted by Family
Courts in marriage-related cases, although some of the
provisional orders are called by some other name, they
actually are similar to injunction.
For example, Temporary Protection Orders (TPO) in
marriage-related cases are actually a prohibitory injunction
and a mandatory injunction at the same time. This is because
in the protection order, the Family Court prohibits respondent
from doing certain acts, which is similar in effect to a
prohibitory injunction. Also, the Family Court can order the
respondent not to enter the former conjugal dwelling and to
remove his personal properties from the house. Thus, it also
partakes of a mandatory injunction.
We also have receivership in marriage-related cases where the
court may appoint an administrator of the common or conjugal
properties of the spouses. The administrator is in effect a
receiver of properties owned in common.

ENVIRONMENTAL CASES
Do not confuse an environmental case from a writ of
Kalikasan and a writ of Continuing Mandamus.
An environmental case may be civil or criminal. The
jurisdiction and venue shall be governed by the respective law
violated. For example, if it is the Clean Air Act which is
violated, the provisions of such law where to file the case shall
govern.
A writ of Kalikasan may be commenced in SC or CA. A writ
of Continuing Mandamus may be commenced in RTC, SC, or
CA.
Whether it is an environmental case (except criminal cases), a
writ of Kalikasan, or a writ of Continuing Mandamus, the
complainant and respondent must attach in his complaint or
answer, as the case may be, documentary and/or object
evidence available to him.
In a civil environmental case, should the defendant fail to
answer the complaint within 15 days from receipt of summons
(10 days if it is an answer to a compulsory counterclaim or
cross-claim), the court shall declare the defendant in default
motu proprio. This is an exception to the general rule.
A motion to declare the defendant in default is prohibited
in civil environmental cases. Upon motion of the plaintiff,
the court shall receive evidence ex parte.
The judge shall exert best efforts to persuade the parties to
arrive at a settlement of the dispute. The judge may issue a
consent decree approving the agreement between the parties.
Q: What is a consent decree?
This is similar to a judgment based upon a compromise. Under
the Rules, it is defined as a judicially-approved settlement

between the concerned parties based on public interest and


public policy to protect and preserve the environment.
The Rules on Evidence are not necessarily followed. The
quantum of evidence required in civil environmental cases is
mere preponderance of evidence. However, there are several
instances in Kalikasan cases where mere substantial evidence
is enough, which is also followed in Amparo cases.
Q: Is a Environmental Protection Order a preliminary
injunction or a preliminary mandatory injunction?
It may be both. If you take a look at the definition of an EPO,
it says it may direct or enjoin any person or government
agency to perform or desist from performing an act. Thus, it
may be in the form of a PI or a PMI.
Q: What are the differences between a TEPO and TRO/PI
under the Rules of Court?
1. Although both TRO and TEPO may be issued ex
parte, a TRO may last 20 days or 72 hours as the case
may be while TEPO only lasts 72 hours.
2. The period of 72 hours in TEPO is counted from
receipt of the TEPO by the party enjoined while the
72 hours in TRO is counted from the issuance of the
same.
3. A TRO only lasts for 20 days. A TEPO may last until
the termination of the case if so extended.
4. The applicant in TEPO is exempted from posting a
bond.
Q: A civil environmental case involves EPO, TEPO, TRO,
and PI. What are the differences between them?
I really dont know either, and Dean Jara did not really discuss
this in class (or I was again daydreaming), but let me attempt
to resolve this problem. Read at your own risk!
If the applicant wishes to stop government agencies from
enforcing an environmental law or from preventing violations
thereof, he must file a TRO or PI with the Supreme Court and
the SC only. The Rules of Court shall be followed and the
distinctions between TRO and PI there will be followed.
If the applicant wishes the court to direct or enjoin any person
or a government agency to perform or desist from performing
an act in order to protect, preserve, rehabilitate the
environment, he must file EPO or TEPO as the case may be.
The difference between EPO and TEPO on one hand, and
TRO and PI on the other hand, therefore, may be (and just
may be) the fact that TRO and PI wishes to enjoin a
government agency from enforcing an environmental law. If
there is no environmental law involved (or it is not a
government agency), use EPO or TEPO.
Again, this is conjecture, but it seems the difference between
TEPO and EPO is that EPO is a final order, it is permanent,
while TEPO as its name suggests is only temporary. This is
different from TRO and PI because TRO and PI are both
interlocutory. TRO may only last for 20 days, while PI may
only last for 6 months if filed in a court other than the SC.
Q: What is the difference between EPO and a writ of
Continuing Mandamus?
It seems there is no great difference between a permanent EPO
and a writ of continuing mandamus in so far as effect goes,
except it seems EPO may direct or enjoin while a writ of
Continuing Mandamus may only direct.

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A petition for a writ of Continuing Mandamus seems to be


also faster than a civil environmental case with a prayer for
EPO since it skips a few steps, such as pre-trial, and may
expedite proceedings. The trial in a writ of Continuing
Mandamus is also only summary in nature.
Q: May TEPO be subject to Rule 65?
No. Rule 65 is available only if there is no other remedy
available to the aggrieved party. The party or person enjoined
by the TEPO may file a sufficient bond to dissolve the TEPO
and only after hearing. If after the hearing, the motion for
dissolution of the TEPO is denied, then the aggrieved party
may now proceed with Rule 65. Although the order is
interlocutory, there is no prohibition in the Environmental
Rules from filing a petition for certiorari under Rule 65, unlike
in summary procedure and small claims proceedings.
Q: What is the precautionary principle?
The precautionary principle states that when human activities
may lead to threats of serious and irreversible damage to the
environment that is scientifically plausible but uncertain,
actions shall be taken to avoid or diminish that threat.
Q: What is SLAPP?
SLAPP refers to Strategic Lawsuit Against Public
Participation. It is an action, whether civil, criminal or
administrative, brought against any person, institution or any
government agency or LGU or its officials and employees,
with the intent to harass, vex, or exert undue pressure or
stifle any legal recourse that such person, institution or
government agency has taken or may take in the enforcement
of environmental laws, protection of the environment, or
assertion of environmental rights.

SPECIAL CIVIL ACTIONS

Q: What are the special civil actions under the Rules?


1. Interpleader
2. Declaratory relief and similar remedies
3. Review of judgments and final orders of the
COMELEC and the Commission on Audit
4. Certiorari, prohibition and mandamus
5. Quo warranto
6. Expropriation
7. Foreclosure of real estate mortgage
8. Partition
9. Forcible entry and unlawful detainer
10. Contempt
11. Petition for Writ of Kalikasan
12. Petition for Continuing Mandamus
Q: What SCA are initiated by complaints and what are
initiated by petitions?
1. The following are initiated by complaint:
a. Interpleader
b. Expropriation
c. Foreclosure of real estate mortgage
d. Partition
e. Forcible entry and unlawful detainer
2. The following are initiated by a petition:
a. Declaratory Relief
b. Review of judgments and final orders or resolutions
of the COMELEC / COA
c. Certiorari
d. Prohibition

e.
f.
g.
h.
i.

Mandamus
Quo Warranto
Contempt
Petition for Writ of Kalikasan
Petition for Continuing Mandamus

Q: What is the difference between an ordinary civil action


and a special civil action?
To properly appreciate why a civil action is further classified
into a special civil action, all that we have to do is to check
Rule 1. In Rule 1, a special civil action is still inherently a
civil action. What makes it special is that the Rules require
additional procedure for each and every special civil action.
Unless there is a rule specially devoted to a certain special
civil action, we will still apply ordinary rules of civil
procedure.

INTERPLEADER
Q: What is an interpleader?
A: It is a special civil action filed by a person against whom
two conflicting claims are made upon the same subject matter
and over which he claims no interest, to compel the claimants
to interplead and to litigate their conflicting claims among
themselves.
Q: Who has jurisdiction over interpleader cases?
The MTC or RTC, as the case may be, following BP 129.
Q: What is so special about interpleader?
One of the features of interpleader which is not possessed by
ordinary civil actions is the absence of a cause of action.
In ordinary civil actions, if there is no cause of action, the
complaint will be dismissed. In a complaint for interpleader or
a counterclaim for interpleader, the plaintiff does not aver a
cause of action. The plaintiff in interpleader cannot say that he
has a cause of action because it is an essential requirements in
an action for interpleader that the plaintiff does not allege a
right at all; or if he alleges a right, nobody has violated the
right, the defendants agree he has a right or does not contest
the right.
Second, another special feature is that in interpleader cases,
we need two or more defendants. Since the plaintiff is being
threatened by an impending threat from two or more claims,
then it naturally means there are two or more claimants. The
plaintiff must implead all the claimants to the property.
Third, aside from the grounds under Rule 16, there is another
ground to dismiss the case in interpleader cases. The
defendant may move to dismiss based on the impropriety of
the filing of the complaint.
For example, a warehouseman in possession of some goods
have two conflicting claims from A and B. Before the
warehouseman may file an interpleader case, however, B filed
a case for replevin against the warehouseman for the
possession of the goods. The warehouseman still filed a
complaint for interpleader. B may dismiss the case on the
ground that the complaint is improper. This is a good ground
for the dismissal of the case.
In this case, what the warehouseman should have done is to
file an answer with a counterclaim asking for an interpleader.
This is one of the instances where Section 12 of Rule 3 takes
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effect. The court will issue summons to the other stranger so


jurisdiction over him may be had.
Q: What are the requisites in order that an interpleader
case may be availed of?
1. Plaintiff claims no interest in the subject matter or his
claim is not disputed
2. Two or more claimants asserting conflicting claims
3. The subject matter must be one and the same
4. Person in possession or obliged files a complaint.
5. The parties to be interpleaded must make effective
claims.
6. Payment of docket and other lawful fees.
Q: Since we are going to follow the rules of ordinary civil
actions unless otherwise provided in the Rules, does it
mean to say that we should still submit the controversy of
interpleader involving at least two or more defendants to
prior barangay conciliation?
Yes. Generally, that is a rule that is applicable to all civil
actions, and thus will include special civil actions, so long as
the parties are natural persons residing in the same city or
municipality.
Q: Since we are going to follow the rules of ordinary civil
actions unless otherwise provided in the Rules, does it
mean to say that we should wait for the court to issue
summons?
Yes. We still have to follow the rule on summons.
Q: Do we still follow the rule on default in interpleader?
Yes. In interpleader, a defendant who failed to file an answer
shall be declared in default. The effect of default in
interpleader, however, is different.
Under Rule 9, if there is a complaint against several
defendants, and one of these defendants failed to file an
answer while the others filed an answer, the non-answering
defendant will be declared in default, and they will be tried
based on answers filed by the other answering defendants.
Hence, if the answering defendant wins, the defaulting
defendant also wins. This is because both the answering and
non-answering defendants are sued under a common cause of
action.
We do not apply Rule 9 to an interpleader. In interpleader,
when one defendant files an answer and the other did not file
an answer, the defendant will be declared in default and
automatically loses the case. The Rules provide, that in
addition to being declared in default, the non-answering
defendant will lose his claim. Although in reality the
defaulting defendant has a claim, his default will make him
lose his right to the claim. Thus, if there are only two
defendants and one of them was declared in default, since the
defaulting defendant has lost the case, the remaining defendant
will have a good chance of being declared as the one with the
right to the subject of the interpleader.
Q: How does the plaintiff win the case?
He doesnt. Remember that the plaintiff in interpleader does
not have any right or interest to the claim of either defendant.

DECLARATORY RELIEF AND OTHER SIMILAR


REMEDIES
Q: What are these other similar remedies?

These are:
1. Reformation of Instrument
2. Quieting of Title
3. Consolidation of Title
Although they are contained in the same Rule, they are
governed by different procedures.
Q: What is special in declaratory relief?
The nature of declaratory relief, which makes it a special civil
action, is that the petition must be filed before a breach or
violation of a right. If we follow ordinary rules of procedure,
the complaint would have been dismissed outright because of
lack of a cause of action. In declaratory relief, there is no
allegation that there is a right violated by another. If there is
such an allegation, then the action ceases to be a special civil
action for declaratory relief, it becomes an ordinary action.
The second procedural rule that we apply to declaratory relief
which is not followed in other special civil actions or in other
ordinary civil actions is the authority of the court not to
entertain a petition for declaratory relief. The court can refuse
to make a declaration of the rights of petitioner and
respondents on a deed or a contract on the ground that the
judgment will not bind the parties not impleaded in the
petition for declaratory relief. This shows that declaratory
relief is not in rem. It is purely a petition in personam. It
cannot bind other parties who had not been impleaded,
although these parties not so impleaded may be parties to the
contract or matter under litigation.
Declaratory relief is a preventive mechanism to prevent parties
from getting involved in an ordinary civil case. In declaratory
relief, the petitioner does not allege he has a right, or if he has,
it has not been violated. There is really no cause of action. The
petitioner seeks from the court a determination of what his
rights are. The petitioner is not absolutely certain if he has
rights under a certain instrument, so he asks the court to
declare what his rights are.
Q: What is the competent court in a petition for
declaratory relief?
Since declaratory relief is incapable of pecuniary estimation,
the RTC is the competent court. However, as to who is the
competent court in other similar remedies, take into account
the provisions under BP 129:
Reformation of instrument is cognizable solely by
RTC as it is incapable of pecuniary estimation.
Quieting of Title is not necessarily under the RTC.
Actions involving title to property will depend on the
value of the property. Under BP 129, actions
involving title to or possession of the property may
be cognizable by an RTC or MTC depending upon
the assessed value of the property involved.
Since consolidation of title involves property, the
assessed value must be alleged to vest jurisdiction.
Q: May the plaintiff ask for damages?
No. If the remedy is the declaration of rights of the petitioner,
then a prayer for damages negates the nature of such special
civil action. Damages connote that a breach or violation of a
right has occurred.
There is an enumeration under Rule 63 what instruments could
be the subject of a petition for declaratory relief. This may be
a deed, a will, contract or other written instrument; also a
statute, executive order or regulation, ordinance, or other
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governmental regulations which affect the rights of the


plaintiff.
With respect to statute or ordinance, declaratory relief must be
prayed for before such ordinance or statute has become
effective. This is one of the reasons why there is a period
before a statute takes effect. If it takes effect, there must first
be an actual case or controversy before there will be judicial
review of such statute.
Personal Opinion: This does not take into account the twin
doctrines of void-for-vagueness and facial challenges.
Q: What is the difference between a clarificatory judgment
and a declaratory judgment?
In a clarificatory judgment, there is a judgment that has
become final and executory but has certain ambiguities with
its text. The remedy of the interested party is to file a motion
for a clarificatory judgment. This clarificatory judgment is
different from a declaratory judgment. In declaratory
judgment, the court will only tell the petitioner what his rights
and duties are under a certain instrument or in cases of a
statute or ordinance, whether or not it is unconstitutional or
not. After the court has done its duty, there is no more need for
the prevailing party to return to the court in order to move for
execution. We do not apply Rule 39 to a petition for
declaratory relief.
Q: Distinguish declaratory judgment from ordinary
judgment.
DECLARATORY
JUDGMENT

ORDINARY
JUDGMENT

Declaratory judgment stands


by itself and no executory
process follows

Ordinary judgment
involves executory or
coercive relief

Intended to determine any


question of construction or
validity prior to breach or
violation

Intended to remedy or
compensate injuries already
suffered

Q: What are the requisites of an action for declaratory


relief?
1. The petition must be filed before there is a breach or
violation; and
2. The subject matter is a deed, will, contract, written
instrument, statute, executive order, regulation or
ordinance;
3. There is a justiciable controversy
4. Issue is ripe for judicial determination, i.e., litigation
is imminent and inevitable;
5. Adequate relief is not available through other means
or other forms of action or proceedings; and
6. The controversy is between persons whose interests
are adverse.
Q: When may an action for declaratory relief be converted
into an ordinary action?
There is conversion if, after filing a petition for declaratory
relief but before the termination of the case or rendition of
judgment, a breach or violation of an instrument, statute,
executive order, regulation or ordinance takes place.
Q: When may a court refuse to make a judicial
declaration?

The court may motu propio or upon motion, refuse based on


the following grounds:
1. A decision will not terminate the uncertainty or
controversy which gave rise to the action
2. Declaration or construction is not necessary and
proper under the circumstances
Q: Can the court exercise discretion in application for
declaratory relief?
We must qualify.
In declaratory relief, the court is given the discretion to act or
not to act on the petition. It may therefore choose not to
construe the instrument sought to be construed or could refrain
from declaring the rights of the petitioner under the deed or
the law. A refusal of the court to declare rights or construe an
instrument is actually the functional equivalent of the
dismissal of the petition.
On the other hand, the court does not have the discretion to
refuse to act with respect to actions described as similar
remedies. Thus, in an action for reformation of an instrument,
to quiet or to consolidate ownership, the court cannot refuse to
render a judgment.
Q: Is a third-party complaint proper in an action for
declaratory relief?
No, it is improper. In a third-party complaint, a person seeks
to obtain contribution, indemnity, subrogation or other reliefs
and a declaratory relief is confined merely to the interpretation
of the terms of a contract.
Q: What are instances where declaratory relief is
unavailable?
1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine
hereditary rights;
3. The subject of the action is a court decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather than a
construction of definite status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of
doubtful meaning;
7. In a petition to seek relief from a moot and academic
question;
8. Where the contract or statute on which action is
based has been breached;
9. When the petition is based on the happening of a
contingent event;
10. When the petitioner is not the real party in interest;
and
11. Where administrative remedies have not been
exhausted.
Quieting of Title
Q: What is an action for quieting title to real property?
This action is brought to remove a cloud on title to real
property or any interest therein. The action contemplates a
situation where the instrument or a record is apparently valid
or effective but is in truth and in fact invalid, ineffective,
voidable or unenforceable, and may be prejudicial to said title
to real property. This action is then brought to remove a cloud
on title to real property or any interest therein. It may also be
brought as a preventive remedy to prevent a cloud from being
cast upon title to real property or any interest therein.

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Q: Is it required that the plaintiff be in the possession of


the property before an action is brought?
The plaintiff need not be in possession of the real property
before he may bring the action as long as he can show that he
has a legal or an equitable title to the property which is the
subject of the action.
Consolidation of Title
Q: Why do we need to file a special civil action for
consolidation of title?
In execution of judgment under Rule 39, if a real property is
sold at public auction by virtue of a levy on execution, the
highest bidder will not automatically get a title in his own
name, merely a certificate of sale from the sheriff, which
bidder must file with the Register of Deeds for annotation to
the title of the property. He must wait one year.
If there is no redemption after one year from registration, the
sheriff will issue a final deed of sale to the highest bidder and
the highest bidder will have the final deed of sale recorded in
the Register. The Register will then determine whether the
one-year period has been met, and if the Register is satisfied
that there was no redemption, the highest bidder will naturally
be interested in securing the title to the property in his name.
In this case, the highest bidder does not have to file an action
for consolidation of title. The highest bidder will only secure
from the sheriff the final deed of sale. The Register of Deeds
will simply cancel the old title and issue a new title in the
name of the highest bidder. So, in Rule 39, there is no such
thing as consolidation of title as a special civil action.
This is also the procedure in foreclosure proceedings. If the
mortgage is foreclosed, the property is sold under auction to
the highest bidder. The sheriff will issue a certificate to be
registered in the Register, and then wait for the one-year
redemption period to expire. If there is no redemption, the
sheriff will again issue a final deed of sale. And on the basis of
that final deed of sale, the Register will cancel the title of the
judgment mortgagor and issue a new title in the name of the
highest bidder.
So you will notice that under Rule 39 and under the Mortgage
Law, in order to consolidate title, we do not require the highest
bidder to file a special civil action to consolidate title in court.
The only public officer who is going to deal with the
interested party is the Register of Deeds, who has the
ministerial duty to issue a title if the papers are in order, in this
case a final deed of sale.
The question remains: When, exactly, we are required to file a
special civil action to consolidate title?
To answer this question, you only need to read Art. 1607 and
1616 of your NCC.
Art. 1607.
In case of real property, the consolidation of
ownership in the vendee by virtue of the
failure of the vendor to comply with the
provisions of Art. 1616 shall not be recorded
in the Registry of Property without a judicial
order, after the vendor has been duly heard.
Art. 1616.
The vendor cannot avail himself of the right
of repurchase without returning to the
vendee the price of the sale, and in addition:

(1) The expenses of the contract, and any


other legitimate payments made by reason of
the sale;
(2) The necessary and useful expenses made
on the thing sold.
Art. 1606 and 1616 has to do with pacto de recto sales and
equitable mortgages. Unlike Rule 39 and the Mortgage Law,
what is involved here is not legal redemption but conventional
redemption.
A conventional redemption also has a period of one year.
When the period expires, the buyer of the property cannot deal
directly with the Register of Deeds. The reason why there is a
need to go to court in conventional redemption is because the
NCC requires it.
Under your NCC, a sale pacto de recto is presumed to be not
really a sale but an equitable mortgage. Insofar as the courts
are concerned, if the contract entered by the parties is a sale
with a right to redeem, the NCC presumes that the real
agreement between the parties is not a sale but an equitable
mortgage. Insofar as the NCC is concerned, the seller is not a
genuine seller, only a mortgagor, and the buyer is the
mortgagee of the property, notwithstanding the clear tone of
the deed of sale with right of redemption. The Register has to
observe the disputable presumption given under the NCC. So
if we go to the Register for consolidation of title, the Register
will simply tell the buyer of the property that the contract is an
equitable mortgage, not a sale, so there is a need to get a
decision from the court declaring that the contract is really a
genuine pacto de recto sale.
If the petitioner fails to defeat the presumption that the
contract is one of equitable mortgage, he can still obtain a title,
but he must file another special civil action. This time, the
buyer must file an action for judicial foreclosure of mortgage.
Even if he is not able to obtain a decision under Rule 63 to
consolidate title under the NCC, that is not the end because the
buyer concerned is still an equitable mortgagee and he still has
the right to foreclose the property. He may do this by availing
of yet another special civil action, a foreclosure of real estate
mortgage under Rule 68.
Q: What is the purpose of an action to consolidate
ownership?
It is a misnomer. The action brought to consolidate ownership
is not really for the purpose of consolidating the ownership of
the property in the person of the vendee or buyer but for the
registration of the property. The lapse of the redemption
period consolidates ownership or title upon the person of the
vendee by operation of law, provided the seller a retro did not
exercise his right of redemption.
Q: Are there differences in procedure between the four
remedies under Rule 63?
If we compare the procedure governing other similar
remedies in Rule 63, you will notice right away that while the
court can outrightly refuse to entertain a petition for
declaratory relief, the court cannot outrightly refuse a petition
for consolidation of title, reformation of instrument or quieting
of title. If the complaint is for consolidation of title, the court
will have to follow the procedure outlined in ordinary civil
cases, which is not followed in declaratory relief.
If the court decides to entertain a petition for declaratory
relief, and during the pendency of the petition, the law took

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effect or there is a violation committed as to the terms of the


contract, the court will convert the case into an ordinary civil
action. The petitioner has to amend his complaint because he
will now allege that he has a cause of action to file an ordinary
action. The declaratory relief, therefore, will cease to be a
special civil action. An ordinary civil action takes its place,
which is not possible in other similar remedies.

CERTIORARI, PROHIBITION, AND MANDAMUS


Rule 64
Rule 64 is always related to Rule 65. Although Rule 64 is a
mode of review, and the period to file under Rule 64 is
different from that in Rule 65, the Rules itself state that in
availing of the mode of review under Rule 64, the petitioner
should adopt the pleading in Rule 65, a special civil action for
certiorari, prohibition and mandamus.
Q: What is the mode of review for judgments and final
orders of the COMELEC and COA?
The petition may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65, except otherwise
provided.
Q: How about the Civil Service Commission?
Under R.A. 7902, the CA will have jurisdiction over all
adjudications of the Civil Service Commission.
Q: Do we have summons in Rule 64?
No. The order to comment under Section 6 in case the
Supreme Court finds the petition sufficient in form and
substance is equivalent to summons in ordinary civil action.

Rule 65
Q: What are the grounds for the filing of a petition for
certiorari?
That a tribunal, board or officer exercising judicial or quasijudicial functions acted:
1. Without or in excess of jurisdiction; or
2. In grave abuse of discretion amounting to lack or
excess of jurisdiction
Q: How is a petition for certiorari commenced?
It is commenced by the filing of a verified petition
accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn
certification of non-forum shopping.
Q: When is certiorari under Rule 65 unavailable?
It is unavailable under the following proceedings:
1. Summary procedure
2. Writ of Amparo
3. Writ of Habeas Data
4. Small claims proceedings
Q: When is prohibition issued?
As a general rule, prohibition does not ordinarily lie to restrain
an act which is already fait accompli.
If you read Tan v. COMELEC, the SC held that prohibition
will lie to prevent the creation of a new province by those in
the corridors of power who could avoid judicial intervention
and review by merely speedily and stealthily completing the
commission of such illegality.
Q: Is it fatal to file a petition for certiorari, although the
true remedy is a petition for prohibition?
Prohibition and not mandamus is the remedy where a motion
to dismiss is wrongfully denied.

This is likewise the same in Rule 65.


Q: Distinguish Rule 45, 64, and 65.
Rule 45

Rule 64

Rule 65

Petition for
Review on
Certiorari

Certiorari against
COMELEC and
COA

Certiorari,
Prohibition, and
Mandamus

Mode of Appeal

Mode of Appeal

Independent
Action

Cannot implead
the court as a
party

COMELEC or
COA should be
impleaded as
respondent

The court or QJ
should be
impleaded

15 days

30 days

60 days

Question of Law

Question of Law

Question of Law
and limited to
Questions of
Jurisdiction

The order or
decision cannot
be executed.

The ruling of the


COMELEC or
COA will not be
stayed unless SC
issues an
injunctive relief

The ruling of the


court or QJ will
not be stayed
unless SC issues
an injunctive
relief

SC

SC

SC, CA or RTC

Q: What are grounds for the outright dismissal of the


petition?
1. The petition is not sufficient in form and substance;
2. The petition was filed for purpose of delay; or
3. The issue is unsubstantial.

For example, lets say the defendant filed a Motion to Dismiss


on the ground that there was lack of jurisdiction over the
subject matter. The trial court denied the motion.
The defendant files a petition for certiorari in the CA or SC.
From the facts stated above, prohibition is the correct remedy,
not certiorari. Although this is the case, we cannot dismiss the
petition. SC held that the petition for certiorari should instead
be treated as a petition for prohibition.
Q: Is there a difference between prohibition and
mandamus?
Certiorari is different from prohibition and mandamus,
although they are all contained in one Rule. The SC will
simply treat the petition for certiorari as a petition for
prohibition. If you analyze the requisites of a petition for
certiorari and prohibition, they are practically the same. There
is not much difference between the concept given in Section 1
and Section 2. The only differences is that in certiorari, the
petitioner asks that the judgment or interlocutory order be
annulled or set aside; in prohibition, the petitioner asks the
prohibition court to prevent the respondent court from going
ahead with the proceedings, and in prohibiting the lower court,
the prohibition court will be effectively telling the respondent
court that the denial, the interlocutory order or the judgment
rendered therein should be set aside and annulled because it is
a wrong final order or wrong interlocutory order.

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CERTIORARI

PROHIBITION

MANDAMUS

That the petition is


directed against a
tribunal, board or
officer exercising
judicial or quasijudicial functions;

The petition is
directed against a
tribunal,
corporation, board
or person
exercising judicial,
quasi-judicial, or
ministerial
functions;

The plaintiff has


a clear legal right
to the act
demanded;

The tribunal,
board or officer
has acted without,
or in excess of
jurisdiction or
with abuse of
discretion
amounting to lack
or excess or
jurisdiction

The tribunal,
corporation, board
or person must
have acted without
or in excess of
jurisdiction or
with grave abuse
of discretion
amounting to lack
of jurisdiction;

It must be the
duty of the
defendant to
perform the act,
which is
ministerial and
not discretionary,
because the same
is mandated by
law;

There is no appeal
or any plain,
speedy and
adequate remedy
in the ordinary
course of law.

There is no appeal
or any plain,
speedy and
adequate remedy
in the ordinary
course of law.

The defendant
unlawfully
neglects the
performance of
the duty enjoined
by law;

Accompanied by a
certified true copy
of the judgment or
order subject of
the petition, copies
of all pleadings
and documents
relevant and
pertinent thereto,
and sworn
certification of
non-forum
shopping under
Rule 46.

Accompanied by a
certified true copy
of the judgment or
order subject of
the petition, copies
of all pleadings
and documents
relevant and
pertinent thereto,
and sworn
certification of
non-forum
shopping under
Rule 46.

There is no
appeal or any
plain, speedy and
adequate remedy
in the ordinary
course of law.

Prohibition is an
extraordinary writ
commanding a
tribunal,
corporation, board
or person, whether
exercising judicial,
quasi-judicial or
ministerial
functions, to desist
from further
proceedings when
said proceedings
are without or in
excess of its
jurisdiction, or
with abuse of its
discretion, there
being no appeal or
any other plain,
speedy and
adequate remedy
in the ordinary
course of law (Sec.

Mandamus is an
extraordinary writ
commanding a
tribunal,
corporation, board
or person, to do an
act required to be
done:
(a) When he
unlawfully
neglects the
performance of an
act which the law
specifically
enjoins as a duty,
and there is no
other plain, speedy
and adequate
remedy in the
ordinary course of
law; or
(b) When one
unlawfully
excludes another

Main action for


injunction seeks
to enjoin the
defendant from
the commission
or continuance of
a specific act, or
to compel a
particular act in
violation of the
rights of the
applicant.
Preliminary
injunction is a
provisional
remedy to
preserve the
status quo and
prevent future
wrongs in order
to preserve and
protect certain
interests or rights
during the

2, Rule 65).

from the use and


enjoyment of a
right or office to
which the other is
entitled (Sec. 3,
Rule 65).

pendency of an
action.

Special civil
action

Special civil
action

Ordinary civil
action

To prevent an
encroachment,
excess, usurpation
or assumption of
jurisdiction;

To compel the
performance of a
ministerial and
legal duty;

For the defendant


either to refrain
from an act or to
perform not
necessarily a
legal and
ministerial duty;

May be directed
against entities
exercising judicial
or quasi-judicial,
or ministerial
functions

May be directed
against judicial
and non-judicial
entities

Directed against
a party

Extends to
discretionary
functions

Extends only to
ministerial
functions

Does not
necessarily
extend to
ministerial,
discretionary or
legal functions;

Always the main


action

Always the main


action

May be the main


action or just a
provisional
remedy

May be brought in
the Supreme
Court, Court of
Appeals,
Sandiganbayan, or
in the Regional
Trial Court which
has jurisdiction
over the territorial
area where
respondent
resides.

May be brought in
the Supreme
Court, Court of
Appeals,
Sandiganbayan, or
in the Regional
Trial Court which
has jurisdiction
over the territorial
area where
respondent
resides.

May be brought
in the Regional
Trial Court
which has
jurisdiction over
the territorial
area where
respondent
resides.

In our example, when a motion to dismiss is denied, it is also


correct for the defendant/petitioner to make use right away of
Rule 65. If he immediately files a petition for certiorari either
in the CA or SC, that petition for certiorari will not be denied
because it is not compliant with the requirements of Sections 1
and 2 Rule 65, i.e., that there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law.
This phrase serves as an essential requisite before we can
properly file a petition under Rule 65. In fact, this phrase is the
source of the principle that in Rule 65, a motion for
reconsideration is a MUST.
Although this is not expressly mentioned in Rule 65 the Rule
does not even mention motions for reconsideration since a
motion for reconsideration is always a plain, speedy and
adequate remedy in the ordinary course of law, it is still a
must.
Q: Are there exceptions to the rule?

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Yes. A prior motion for reconsideration is not necessary to


entertain a petition for certiorari where:
1. Order is a patent nullity, as where the court a quo has
no jurisdiction;
2. Questions raised in the certiorari proceedings have
been duly raised and passed upon by the lower court,
or are the same as those raised and passed upon in the
lower court;
3. Urgent necessity for the resolution of the question,
and any further delay would prejudice the interests of
the Government or of the petitioner, or the subject
matter of the action is perishable;
4. Under the circumstances,
a motion for
reconsideration would be useless;
5. Petitioner was deprived of due process and there is
extreme urgency for relief;
6. In a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial
court is improbable;
7. Proceedings in the lower court are a nullity for lack
of due process;
8. Proceedings were ex parte or in which the petitioner
had no opportunity to object; and
9. Issue raised is one purely of law or where public
interest is involved.
Public Respondent / Nominal Party
In Rule 65, if we examine the caption of a petition under Rule
65, we will discover that there are at least two respondents,
one is the private respondent; the other is the public
respondent. The public respondent is the agency, court or
officer who exercises judicial or quasi-judicial functions. In
other words, we always involve a public officer, agency, court
or officer who exercises judicial, quasi-judicial or ministerial
functions under Rule 65. We cannot get a petition for
certiorari under Rule 65 with only the private respondent.
Although the rules describe the public respondent as a nominal
party, it is in fact an indispensible party because it is the final
order or judgment that it had issued that is being assailed or
challenged. The reason why Rule 65 calls the public
respondent as a nominal party is because in Rule 65 itself, it is
provided that the public respondent is not authorized to enter
his appearance and to defend himself before the certiorari
court. The fate of the public respondent lies in the hands of the
private respondent. It is the private respondent who will argue
and explain the correctness of the interlocutory order or
judgment that is being assailed under Rule 65. It is only in rare
instances where the higher court will allow the public
respondent to argue on his own behalf or submit his own
papers in the certiorari court. He should always rely on the
papers and pleadings that are submitted by the private
respondent.
Because there is always a public respondent, the petition under
Rule 65 does not have to comply with prior barangay
conciliation. This is one of the exceptions given in the LGC,
where the action involves a government officer or employee in
the performance of his duty.
Grave Abuse of Discretion
The grounds very strictly interpreted. In Rule 65 Sections 1
and 2, the ground is that the public respondent has acted
without jurisdiction, in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction.
The definition of grave abuse of discretion given by the SC is
this: There is grave abuse of discretion when the public
respondent acts whimsically, despotic, and/or arbitrarily. The

SC did not elaborate on whimsical, despotic or arbitrary, so it


would have to be resolved on a case-to-case basis.
Q: A case is pending in the RTC for collection of an
indebtedness. The plaintiff applies for the issuance of a
writ of preliminary attachment. The court grants and
issues the writ. Does the RTC act arbitrarily, acting
gravely in abuse of its discretion if it grants and issues the
writ of preliminary attachment?
It depends. If the application for preliminary attachment is
based on the grounds mentioned under Rule 57, Section 1, the
RTC did not act with grave abuse of discretion.
No Plain, Speedy and Adequate Remedy
Let us have another situation. For instance, the defendant files
an answer containing a negative defense. The court renders a
summary judgment or a judgment on the pleadings. That is an
arbitrary act of the court. But if the decision rendered is a
summary judgment or judgment on the pleadings, Rule 65
may not be the correct remedy. Under our Rules, the remedy is
appeal, not Rule 65. Whenever there is appeal available, you
better forget Rule 65 because it is available only when there is
no appeal or other plain, speedy and adequate remedy
available in the ordinary course of law. This is the rule that we
must always follow.
There are rare instances, however, when the SC allowed a
petition for Rule 65 although appeal is still available. If there
is appeal but that appeal is not really a plain, speedy and
adequate remedy available in the ordinary course of law, the
SC, in the exercise of its power to suspend the Rules, will hear
the petition under Rule 65.
No Suspension of Proceedings
If the party is aggrieved by an interlocutory order or a
judgment that is unappealable, it is not allowed under Rule 65
for the trial court to suspend proceedings in the case pending
before it. Proceedings will only be suspended if the higher
court issues a TRO or a writ of PI. Thus, it is practical to ask
along with the petition for an issuance of TRO or writ of PI.
Abuse of Rule 65
Take note of the modifications in Rule 65 concerning the
abuse of some parties and lawyers using petition for certiorari,
prohibition or mandamus. It is the principle of res ipsa
loquitur. In the past, lawyers usually file petitions under Rule
65 whenever motions are denied, citing abuse of discretion
whereas under Rule 65, the required ground is grave abuse of
discretion. In order to prevent this practice, SC incorporated in
Rule 65 the application of the civil law principle of res ipsa
loquitur. If a lawyer and his client will go up to CA or SC
under Rule 65, and the court resolves that the petition was
manifestly without merit or for purposes of delay, the lawyer
and his client will be held in contempt of court for filing such
manifestly unmeritorious petition and to pay treble costs, and
in addition to this, there may be administrative sanctions
against the lawyer.
Damages
If the writ of mandamus is issued as requested, there is
propriety of awarding damages in favor of the petitioner, so it
is automatically awarded under Section 3 of Rule 65.
Rule 65 does not specifically provide for award of damages
under Sections 1 and 2 (certiorari and prohibition). SC,
however, resolved that in proper instances, if there is a prayer
for damages incorporated in a petition for certiorari or

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prohibition, there is nothing wrong if the court grants the writ


of certiorari or mandamus and award damages in favor of the
petitioner, although none is provided for it in Sections 1 and 2.
The justification given by the SC is that in a petition for
certiorari or prohibition, there is always that prayer for any
additional relief which the court will deem just and equitable.
SC said that is enough justification for the award of damages,
so long as the petitioner is able to present proof of damages.
Special Rules
Q: Why do we consider Rule 65 as a special civil action?
1. Procedurally, the court can dismiss the petition for
insufficiency in form and substance, which has a very broad
interpretation. So even if the SC has jurisdiction, it can
outrightly dismiss the petition.
2. If the court did not dismiss the petition outrightly, the court
may not issue summons. It may instead issue an order to
comment. Once a comment is submitted, the court acquires
jurisdiction over that party.
3. Since the court does not issue summons, issuing instead a
plain order to comment within a fixed period, if no comment
is submitted, the court cannot declare respondent in default.
4. Under Rule 65, the court will not conduct a pre-trial or a
trial. The issue is a very limited issue. It is not only a mere
question of law. It is a question of jurisdiction.
Although all questions of jurisdiction are questions of law, not
all questions of law are questions of jurisdiction.
5. There is no trial because the submission of the petition or
order to comment requires parties to submit the pleadings
already submitted in the lower courts. The higher court will
just analyze the documents attached to the petition or the
comment, and thus there is no need for a trial.
Q: What is the remedy of the aggrieved party in a petition
for certiorari?
The remedy is appeal, either by petition for review or petition
on certiorari.

SPECIAL CIVIL ACTIONS IN THE KALIKASAN


CIRCULAR
If you take a look at your codals, the Writ of Kalikasan is like
a mini Rules of Court for environmental cases. By itself, the
circular appears to contain all rules pertaining to civil cases
arising out of Kalikasan laws as well as criminal procedures.
There are two special civil actions under the circular:
1. Writ of Kalikasan
2. Petition for Continuing Mandamus
Q: Why does the Kalikasan circular consider a petition for
a writ of kalikasan and continuing mandamus as a special
civil action?
It is because of the fact that although these are governed by
ordinary rules of procedure, there are instances where special
procedure has to be followed in hearing said special civil
action.
Writ of Kalikasan
A petition for a writ of Kalikasan as a special civil action is
entirely different from ordinary civil cases. The sheer number
of parties, as well as the magnitude of the prejudice that could

be suffered by the petitioners is such that they are the


inhabitants of at least two or more provinces or cities. If we
talk about numbers, the actual number of inhabitants in a
typical province could number in the hundreds of thousands.
This is why this is a perfect example of a class suit. They
stand to be prejudiced in their right to their life, liberty and
property because of a violation or a threat to violate
environmental laws by a natural person or juridical entity.
Even if there is just one petitioner, and it is possible because
under the Rules a juridical entity, an NGO or an accredited
public interest group can file a petition, they can file on behalf
of two or more provinces or cities.
To make matters simple procedurally, take note that the
procedures in Habeas Corpus and Amparo as special
proceedings are practically the same procedures followed in
Kalikasan cases.
Upon the filing of the petition for the writ of Kalikasan, and
after the court analyzes the petition and is convinced of the
need for the writ to be issued, the writ will be issued without
even hearing the side of the respondents. The writ can be
issued right away by the court as long as the allegations in the
petition are complete and meritorious by itself. The court will
also issue an order requiring the respondents to file a verified
return. The return must contain respondents explanation as to
his side of the issue. The writ is special in this context because
the writ is issued right away, even before the respondent is
given the chance to give his side and even before he can file
his return.
Provisional Orders
Take note that the Kalikasan circular has some sections
regarding the use of discovery measures. But they are treated
not as discovery measures but as provisional orders in the
Kalikasan circular.
After the issuance of the writ of Kalikasan, even without
hearing the respondent, the Kalikasan court can issue a
provisional remedy called a cease and desist order, which is
similar to a TRO in civil cases. But, unlike a TRO or a PI, it
does not have an expiration date because the duration depends
upon the discretion of the Kalikasan court.
There are only two courts that can take cognizance of a
petition for a writ of Kalikasan, the SC and the CA.
Since the respondent is not required to file an answer, his
failure to file a verified return will not result in default. In
ordinary civil actions involving environmental laws, we
follow a different procedure.
If the defendant in an ordinary environmental case does not
file an answer, the defendant will be declared in default even
if there is no motion initiated by a plaintiff. In a special civil
action for a writ of Kalikasan, the respondents do not submit a
verified return, and if they dont, the court will go ahead with
analyzing the merit of the petition for a writ of Kalikasan.
The decision of the court in a special civil action of writ of
Kalikasan is immediately executory, although there may still
be appeal. Even if the circular says that the decision is
immediately executory, it does not mean that appeal is no
longer available. It means that the decision could be executed
as a matter of right even if the aggrieved party has the right to
appeal.

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Appeal
In a special civil action for a writ of Kalikasan, an appeal
under Rule 45 is filed with the SC. Although Rule 45 states
that only questions of law may be raised before the SC,
appeals under the writ of Kalikasan may include questions of
fact.

obligations. Indeed, time is of the essence;


hence, there is a need to set timetables for
the performance and completion of the
tasks, some of them as defined for them
by law and the nature of their respective
offices and mandates.

Effect
The judgment in favor of petitioner, aside from being
immediately executory, partakes of a permanent prohibitory
injunction and at the same time a permanent mandatory
injunction.

This is the tenor of judgments in Kalikasan cases. The


judgment will always contain a provision in which the
respondent is permanently prohibited from violating or from
doing the act in question that will violate environmental laws,
and the permanent mandatory part is that the LGU is given a
mandate to enforce environmental laws.
Writ of Continuing Mandamus
This is patterned after the mandamus contained in Rule 65. If
you will compare the definition of mandamus in Rule 65 to the
definition of continuing mandamus in the Kalikasan Circular,
there is only the inclusion in the latter of the clause pertaining
to the enforcement of environmental laws.
The writ was adopted from the Supreme Court of India, which
seems to have a good experience in enforcing environmental
laws.
Q? Why do we have a writ of continuing mandamus when
we already have mandamus under Rule 65?
Mandamus under Rule 65 under Sec. 3 cannot satisfy the
requirement of a continuing mandamus. It will negate the state
policy of enforcing strict environmental laws. A final and
executory judgment under Rule 39 can only be enforced using
a writ of execution within the first five years. After that, in the
next five years, a case for revival of judgment must be had.
A writ of continuing mandamus, on the contrary, requires
continuous enforcement of the judgment until the objective is
achieved.
In connection with this writ, you must read MMDA vs.
Concerned Residents of Manila Bay.
Portions of the decision read thus:
Under what other judicial discipline
describes as continuing mandamus, the
Court
may,
under
extraordinary
circumstances, issue directives with the
end in view of ensuring that its decision
would not be set to naught by
administrative inaction or indifference.
In India, the doctrine of continuing
mandamus was used to enforce directives of
the court to clean up the length of
the Ganges River from
industrial
and
municipal pollution.
In the light of the ongoing environmental
degradation, the Court wishes to emphasize
the extreme necessity for all concerned
executive departments and agencies to
immediately act and discharge their
respective
official
duties
and

RA 9003 is a sweeping piece of legislation


enacted to radically transform and improve
waste management. It implements Sec. 16,
Art. II of the 1987 Constitution, which
explicitly provides that the State shall
protect and advance the right of the people
to a balanced and healthful ecology in
accord with the rhythm and harmony of
nature.
So it was that in Oposa v. Factoran, Jr. the
Court stated that the right to a balanced and
healthful ecology need not even be written
in the Constitution for it is assumed, like
other civil and political rights guaranteed in
the Bill of Rights, to exist from the inception
of mankind and it is an issue of
transcendental
importance
with
intergenerational
implications. Even
assuming the absence of a categorical legal
provision specifically prodding petitioners to
clean up the bay, they and the men and
women representing them cannot escape
their obligation to future generations of
Filipinos to keep the waters of
the Manila Bay clean and clear as humanly
as possible. Anything less would be a
betrayal of the trust reposed in them.
Q: How do we execute that judgment in the Kalikasan
court?
Theoretically, SC said that the execution of the judgment
requires a periodic report from the agencies concerned on the
extent of progress the government agencies concerned had
achieved until the objective of the writ has been achieved. If
the SC is understaffed to monitor the progress, it can appoint
commissioners to accept periodic reports and in submitting
progress reports to the SC. As a result, dormancy and
prescription of judgment under Rule 39 and NCC shall not
apply in Writ of Kalikasan.
A writ of continuing mandamus is cognizable by the RTC, CA
and the SC. Just like in Rule 65 or the writ of Kalikasan as a
special civil action, the respondent is required to file a verified
return, and if no return is filed by respondent, court continues
with the process of analyzing the merit of the petition for
continuing mandamus.
Provisional Remedy
A provisional remedy that could be issued by the court
handling the petition for continuing mandamus are the
issuance of a Temporary Environmental Protection Order
(TEPO) or a cease and desist order, just like in writ of
Kalikasan. There could also be award of damages.
Appeal
You will also notice that unlike in a writ of Kalikasan, there is
no provision concerning appeals in continuing mandamus. In

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the writ of Kalikasan as a special civil action, appeal under


Rule 45 is a remedy. Therefore, it would seem that appeals
provided in civil procedure will govern.
If the trial court is the RTC, appeal could be by notice of
appeal to the CA if it involves questions of fact or mixed
questions of law and fact, or it could be by petition for review
on certiorari directed to the SC under Rule 45. The petition
under Rule 45, however, since we are complying with rules on
ordinary civil procedure, must only contain pure questions of
law.

Compiler: Dean continued to discuss the criminal procedure


aspect of Kalikasan cases. Since this will be tackled in
Criminal Procedure, and there in depth, I would just to skim
this part and point out that one of the substantial differences
between the two is in bail.
One of the conditions of bail in criminal Kalikasan cases is
this:
If the accused fails to appear without
justification on the date of arraignment, the
accused waives the reading of the
information and authorizes the court to enter
a plea of not guilty on behalf of the accused
and to set the case for trial.
If you compare this with ordinary criminal procedure, if the
accused does not appear during plea and arraignment, the
court cannot hold a trial in absentia. If the accused jumps bail,
the court cannot continue with the case. It will simply suspend
the case and wait for the accused to be arrested. Remember
that the bondsman may arrest the accused himself.

QUO WARRANTO
Quo warranto is under the concurrent original jurisdiction of
SC, CA and RTC under BP 129; and COMELEC under the
Omnibus Election Code. MTC, on the other hand, has limited
quo warranto jurisdiction as to proceedings at the barangay
level.
Q: What is quo warranto?
A proceeding or writ issued by the court to determine the right
to use an office, position or franchise and to oust the person
holding or exercising such office, position or franchise if his
right is unfounded or if a person performed acts considered as
grounds for forfeiture of said exercise of position, office or
franchise.
It is commenced by a verified petition brought in the name of
the Republic of the Philippines or in the name of the person
claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another.
Q: What are the classifications of quo warranto
proceedings?
1. Mandatory brought by the Solicitor General or
public prosecutor when:
a. directed by the President; or
b. upon complaint or when he has reason to believe
that the case for quo warranto can be established
by proof;

2.

Discretionary brought by the Solicitor General or


public prosecutor at the request and upon the relation
of another person, provided there must be:
a. leave of court;
b. at the request and upon the relation of another
person; and
c. an indemnity bond

Q: Who commences the action?


1. The solicitor general or public prosecutor, when
directed by the President of the Philippines, or when
upon complaint or otherwise he has good reason to
believe that any case specified in the proceeding
section can be established by proof (mandatory quo
warranto).
2. The Solicitor General or a public prosecutor may,
with the permission of court, bring an action at the
request and upon the relation of another person
(discretionary quo warranto).
3. A person claiming to be entitled to a public office or
position or unlawfully held or exercised by another
may also bring action, in his own name (relator).
Q: Against whom a quo warranto may be filed?
The action must be filed against:
1. A person who usurps, intrudes into, or unlawfully
holds or exercises a public office, position or
franchise;
2. A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the
forfeiture of his office; and
3. An association which acts as a corporation within the
Philippines without being legally incorporated or
without lawful authority so to act.
Take note that actions of quo warranto against corporations
now fall under the jurisdiction of the RTC.
Q: Since SC, CA and RTC have concurrent original
jurisdiction, which court should he file his petition for quo
warranto?
We follow hierarchy of courts. As much as possible, we do not
file a petition for quo warranto in SC. It should be filed in the
RTC which has territorial jurisdiction over the case where the
public office in question is placed.
Q: What is the difference of mandamus and quo warranto,
since both are available with respect to the usurpation
without title?
Because of the overlap between mandamus and quo warranto,
the SC resolved that there is nothing wrong if the petitioner
files a petition for mandamus or in the alternative, a petition
for quo warranto. Both are applicable.
There is a great difference procedurally between mandamus
and quo warranto although these petitions could be used
alternatively. This is because in a quo warranto proceeding,
the petitioner could be the Solicitor General even though he is
not interested in the public office in question.
You should also note the difference between the two if
damages are awarded. This is discussed below, in the next
question.
Q: Why is quo warranto a special civil action?
It is special because of the following rules:
1. In ordinary civil cases, in the absence of an express
agreement, the venue is governed by Rule 4. We do not follow
this in quo warranto. It is specifically provided that in quo
warranto, the venue is where the officer sought to be ejected is

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residing. We do not take into account the residence of the


petitioner.
Q: A group of businessmen formed an association in Cebu
City calling itself Cars Co. to distribute/sell cars in said
city. It did not incorporate itself under the law nor did it
have any government permit or license to conduct its
business as such. The Solicitor General filed before the
RTC in Manila a verified petition for quo warranto
questioning and seeking to stop the operations of Cars Co.
The latter filed a motion to dismiss the petition on the
ground of improper venue claiming that its main office
and operations are in Cebu City and not in Manila. Is the
contention of Cars Co. correct? Why?
A: No. As expressly provided in the Rules, when the Solicitor
General commences the action for quo warranto, it may be
brought in a Regional Trial Court in the City of Manila, as in
the case, in the CA or in the SC.
2. In ordinary civil actions, the period to file pleadings is fixed
in the Rules, and the court has discretion to grant extension
thereof. But if we read Rule 66, the quo warranto court can
reduce the period at its discretion. For example, the quo
warranto court can issue summons instructing the recipient
thereof to file a responsive pleading within 5 days. This power
is not granted to other courts.
3. The most significant change, however, in quo warranto is
that we do not apply the rule against splitting a cause of
action. It is expressly allowed in quo warranto under Sections
9, 10 and 11 of Rule 66.
You will note that in these three sections, there is a rule
derived from these sections, which says that if the quo
warranto court decides in favor of the petitioner, the quo
warranto court will oust the respondent and direct that the
office and the records of that office be turned over to the
prevailing party. In the succeeding sections, it is provided that
the prevailing party has a right, within 1 year after taking over,
to claim damages incurred as a result of usurpation by the
ousted respondent public officer. Although the quo warranto
court can award damages against the respondent public
officer, it need not award damages in the quo warranto petition
itself.
There could be a separate complaint for recovery of damages
arising from the usurpation of a public office. This is splitting
a cause of action. In other words, the prevailing party can
recover the office, and after he has assumed office, within one
year from entry of judgment, he can file a separate complaint
for the recovery of damages suffered as a result of the
intrusion or usurpation made by the defendant.
A claim for damages arising from the principal cause of action
is not barred if split in a quo warranto action. The action may
prescribe, but the period is one year. You must compare this
with mandamus.
In mandamus, if the petitioner files a petition for mandamus
without a claim for damages and later on wins the case, the
prevailing party will be barred from claiming damages from
the plaintiff. Mandamus does not authorize splitting a cause of
action.
Q: Is the claim of damages in quo warranto cases
considered a separate special civil action?
No, it is an ordinary action for a claim of damages.

Q: Supposing that the petitioner filed a case for quo


warranto against respondent. His petition for quo
warranto was granted. The respondent was ousted from
the office. When the prevailing party filed a case for
damages, one year after the entry of the judgment of the
quo warranto court, the respondent interposed a defense
that he cannot be held liable because the judgment of the
quo warranto court was invalid. Is his defense tenable?
No. It cannot be set up. It is a collateral attack on judgment,
which we do not allow if the judgment appears on its face to
be valid under Rule 39.
Practically, in that separate complaint for the recovery of
damages, no meritorious defense could be set up by the
respondent because the award of damages necessarily arises
from the fact that there is already a final and executory
judgment rendered in the principal case of quo warranto.

EXPROPRIATION
Q: What is expropriation?
It is the procedure for enforcing the right of eminent domain.
Q: What are the requisites of a valid expropriation?
1. Private property must be taken.
2. There should be payment of just compensation.
3. The taking must be for public use.
Sometimes the first requisite is replaced with due process.
Q: What is the power of eminent domain?
It is the right of the State to acquire private property for public
use upon the payment of just compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell, or if the
latter agrees to sell, agreement as to the price cannot be
reached.
Q: What court hears expropriation cases?
It is exclusively cognizable by the RTC. The issue to be
resolved first by the court is the right of the plaintiff to
expropriate. Only in the second stage is the fixing of just
compensation resolved. A court cannot simply decide the issue
of just compensation first, as it should assess first the right to
expropriate, which is incapable of pecuniary estimation.
The nature of the action as a real action has nothing to do with
the jurisdiction of the court, but it has something to do only
with respect to the venue. The nature of the property is not
determinative of jurisdiction in expropriation proceedings
because expropriation is one not capable of pecuniary
estimation.
HOWEVER, and you should take note of this, under the latest
case on the matter, the Supreme Court held in Barrido v.
Norato, G.R. No. 176492, October 20, 2014, that the MTCC
has jurisdiction to take cognizance of real actions or those
affecting title to real property, or for the recovery of
possession, or for the partition or condemnation of, or
foreclosure of a mortgage on real property. Although the
main issue involved in the case is partition, it is unknown if
the same rule may be applied to expropriation and foreclosure
proceedings.

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Q: When will the plaintiff take possession of the property?


In expropriation proceedings, if there is a complaint filed
yesterday, and the plaintiff deposits an amount equivalent to
the assessed value today, even if the defendant has not been
notified yet, the plaintiff can proceed to possess the property
subject of expropriation.
For example, the DPWH is interested in getting a property of
land for the purpose of expanding a national highway. What it
will do is to simply file a complaint in the RTC where the land
is located. The deposit is made the next day. Immediately, the
DPWH will take over the said property, and the owner thereof
can do nothing about it. Once deposit is made as required by
the Rules or as required by substantive law, the court issues a
writ of possession as its ministerial duty. In ordinary civil
actions, issuance of a writ of possession can be done only after
the court has rendered a decision and such decision has been
entered.
Q: In case of reversion, when will the owner recover the
expropriated property?
After a judgment in favor of owner has become final and
executory. If there is an appeal, possession is not returned,
except when execution pending appeal is granted. Otherwise,
a writ of possession shall be issued upon finality.
Q: Suppose there is a lien over the property? What if there
were informal settlers in the property?
They will all be driven out as a result of the writ of possession
issued even before the expropriation court has determined
whether or not the state has a right to expropriate.
There are now new laws providing for fixing the amount of
deposit to be made, not the one that is always provided for
under Rule 67. The new laws say that deposit should be 100%
of the assessed value. Rule 67 shall govern in cases where the
special laws are not applicable.
RA 8974
Q: What is the new system of immediate payment of initial
compensation?
A: RA 8974 provides a modification of Sec 2, Rule 67 where
the Government is required to make immediate and direct
payment to the property owner upon the filing of the
complaint to be entitled to a writ of possession. As a relevant
standard for initial compensation, the market value for the
property as stated in the tax declaration or the current relevant
zonal valuation of the Bureau of internal Revenue (BIR),
whichever is higher and the value of the improvements and/or
structures using the replacement cost method.
RA 8974 applies in instances when the national government
expropriates property for national government infrastructure
projects. Thus, if expropriation is engaged by the national
government for purposes other than national infrastructure
projects, the assessed value standard and the deposit mode
prescribed in Rule 67 continues to apply.
The intent of RA 8974 to supersede the system of deposit
under Rule 67 with the scheme of immediate payment in cases
involving national government infrastructure projects is
indeed very clear.
Q: What is the new system of immediate payment of initial
just compensation?
A: For the acquisition of right-of-way, site or location for any
national government infrastructure project through

expropriation, upon the filing of the filing of the complaint,


and after due notice to the defendant, the implementing
agency shall immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of the value
of the property based on the current relevant zonal valuation
of the BIR; and (2) the value of the improvements and/or
structures as determined under Sec. 7 of RA 8974 .
Local Government Units
In expropriation by LGUs, under the LGC, it must be alleged
in the complaint that there is an ordinance authorizing the
expropriation and further allegation that the LGU offered to
buy the property from the owner, but the owner refused.
Under the LGC, the local government unit may immediately
take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of
the property to be expropriated
Stages
Q: What are the two (2) stages in expropriation
proceedings?
1. Determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of the exercise in the context of the facts
involved.
2. Determination of just compensation.
Right to Expropriate
The first stage of the expropriation proceeding is for purposes
of determining the plaintiffs right to expropriate. The first
decision in resolving this issue is called an order of
condemnation or expropriation, which is a final decision on
the merits. This is appealable.
Certain pleadings are not allowed: Counterclaim, cross-claim
and 3rd party complaint. If defendant believes the filing of
expropriation by the Republic is arbitrary, he cannot sue the
Republic. He cannot file a counterclaim against the Republic.
Is there a way the defendant protect himself in case the
court decides in his favor?
Under Rule 67, even if without a counterclaim, if the court
resolves the expropriation is not meritorious, the court will
award damages in favor of defendant. If there is a dispute
among several defendants as to who is entitled to just
compensation, even if no cross-claim is filed, the court itself
will resolve this issue, even if there are no pleadings relating
thereto. The expropriation court has a very wide discretion in
the matter of payment, or even distribution, of just
compensation that will be fixed during the 2nd stage where the
court will appoint commissioners, who will then tell the court
the amount of just compensation to be paid to the various
defendants.
POSSESSORS WITH JUST TITLE
SC also ruled that if the Republic has a Torrens title over
certain properties, but the said properties were in the
possession of private individuals claiming possession under a
just title, the Republic cannot simply cause their ejection, but
Republic can simply file an expropriation proceeding against
them. There is nothing wrong if the Republic will file a
complaint for expropriation to oust the possessors from the
property, although these properties are already in the title of
the government.

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DEFAULT
Supposing the defendant does not answer within the period of
default, the court, upon motion of the plaintiff, may declare
the defendant in default. But in the default order issued in
expropriation proceedings, the defendant is in default only
during the first stage of the proceedings, and is lifted
automatically in the 2nd stage. The defendant, if declared in
default, will not be able to participate during the first stage of
the proceedings where the right of the plaintiff to expropriate
will be determined by the court. The first stage ends, if
favorable to plaintiff, with the court issuing an order for
condemnation or order of expropriation. Once that order is
entered, or even if there is an appeal from that order, the
expropriation court will now go to the second stage, the fixing
of just compensation. During the 2nd stage, the defendant is
allowed again to participate in the proceedings the fixing of
just compensation. Unlike in ordinary civil actions, if the
defendant is in default, the defendant will not be able to
participate during the entire proceedings, unless the order of
default is lifted or the order of default is set aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion of
the court. Court MUST appoint commissioners to determine
such compensation. If the court has not followed this
procedure, there is ground to question the decision of just
compensation by said court. Commissioners must be
appointed in order to help the court in fixing the just
compensation to be paid. This is another deviation from
ordinary procedures. Note in ordinary procedure, trial by
commissioners is discretionary; unlike in expropriation, the
appointment of commissioners in the second stage is
mandatory. The judgment rendered by the expropriation court
will be void if the court does not follow the mandatory
requirement of appointing of commissioners.
Q: May the court dispense with the assistance of
commissioners in the determination of just compensation
in expropriation proceedings?
A: No. The appointment of commissioners in expropriation
proceedings is indispensable. In such cases, trial with the aid
of commissioners is a substantial right that may not be done
away with capriciously or for no reason at all (MERALCO v.
Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed
within 10 days from service of the order and shall be resolved
within 30 days after all the commissioners received the copies
of the objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value of
the property at the time of its taking or filing of complaint
whichever comes first. It is the fair and full equivalent for the
loss sustained by the defendant.
Q: What is the formula for the determination of just
compensation?
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
Where:
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits

Note: Sentimental value is not computed.


Q: What is the reckoning point for determining just
compensation?
A: The value of just compensation shall be determined as of
the date of the taking of the property or the filing of the
complaint, whichever came first.
GR: When the taking of the property sought to be
expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the just
compensation should be determined as of the date of the filing
of the complaint. (City of Iloilo v. Hon. Lolita ContrerasBesana, G.R. No. 168967, Feb. 12, 2010).
Note: Typically, the time of taking is contemporaneous with
the time the petition is filed. (NAPOCOR v. Co, G.R. No
166973, Feb. 10, 2009)
Q: Are there any exceptions?
1. Grave injustice to the property owner;
2. The taking did not have color of legal authority ;
3. The taking of the property was not for expropriation ; or
4. The owner will be given undue increment advantages
because of the expropriation
Based on past jurisprudence, if the state has expropriated a
piece of land and had paid just compensation based on the
courts decisions, but the state did not push through with the
project alleged in the complaint, there is nothing we can do
about it on ground of res judicata. The case can no longer be
reopened. But that was old jurisprudence. Recently, the
decision on Mactan-Cebu International Airport cases, the last
of which was decided in 2010, the SC held that in the case of
the public purpose of the expropriation being unfulfilled, the
former owners can rightfully file a complaint in the RTC for
the reversion of the property and reconveyance of the property
expropriated, the amount of payment of which shall be based
on the just compensation paid at the time of expropriation (the
purpose being to return to the government the amount of just
compensation paid to them).
In another case, there was a land owner who donated a tract of
land to the government. The government introduced
improvements with tolerance of the owner, and the value of
the property increased. The donor, seeing that the
improvements increase the value of his property, changed his
mind and sought to recover the donated property by filing a
case for unlawful detainer against the government.SC held that
unlawful detainer is not the remedy. There was a de facto
expropriation that happened when the government took over
the property. What the owner can do is to file an ordinary
action for the recovery of just compensation.
In other words, if we follow the reasoning of the SC,
expropriation could be de jure expropriation, it could also be
de facto expropriation. If the government actually occupies a
piece of land and introduces improvements therein, with the
tolerance of the owner of the property, that is effectively an
expropriation of the property. And the only remedy of the land
owner is to file an ordinary case for the recovery of just
compensation. There will still be a need to fix the amount of
just compensation.
We follow the same procedure if the subject of expropriation
is personal property. But there are laws fixing the amount to

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be deposited if the government wants to take possession of the


personal property right away.
Appeal
Q: Suppose the defendant appealed the first final order,
may the court proceed with the second stage?
A: Yes. An appeal from the first final order will not prevent
the court from proceeding to the 2nd stage to fix the amount of
just compensation.
Q: If the defendant during appeal asks the court to
withdraw the deposit made, will that mean he is
withdrawing his appeal or shall the appeal continue?
The appeal shall continue. SC held that defendant is allowed
to withdraw the money since technically it is his as it is
intended to pay partly his just compensation, this will not
mean that the appeal is being withdrawn.
Thus, immediately, you can see why expropriation is a special
civil action. It consists of 2 stages. And for each stage, there is
a final order of judgment. Thus, for each final order of
judgment, an appeal can be had, meaning there can be 2
appeals in an expropriation case. Thus, it is possible that there
can be multiplicity of appeals in expropriation cases, which is
not allowed in ordinary civil actions.

order becomes final and no appeal thereto is taken, the


authority to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the petitioners
right to expropriate the property for a public use is no longer
subject to review. (City of Iloilo v. Hon. Lolita ContrerasBesana, G.R. No. 168967, Feb. 12, 2010).
Q: May Congress enact a law providing that a 5,000
square meter lot, a part of the UST compound in
Sampaloc, Manila, be expropriated for the construction of
a park in honor of former City Mayor Arsenio Lacson? As
compensation to UST, the City of Manila shall deliver its
5-hectare lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall employees.
Explain.
A: Yes, Congress may enact a law to expropriate property but
it cannot limit just compensation. The determination of just
compensation is a judicial function and Congress may not
supplant or prevent the exercise of judicial discretion to
determine just compensation. Under Sec. 5, Rule 67 of the
Rules of Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 Bar
Question)

FORECLOSURE OF REAL ESTATE MORTGAGE


Because of the possibility of multiple of appeals in
expropriation proceedings, the requirements of appeal are
changed. In ordinary civil proceedings, the period to appeal is
15 days, and what needs to be filed is just a notice to appeal.
In expropriation proceedings, since there could be multiple
appeals, the period to appeal is extended to 30 days, and
together with notice of appeal, appellant is also required to file
a record on appeal. Failure to file record to appeal means the
appeal is not perfected.

Q: City of Iloilo (petitioner) represented by Mayor Treas


filed a complaint for eminent domain against Javellana
seeking to expropriate two parcels of land. Mayor Treas
filed a motion for issuance of writ of possession alleging
that it had deposited 10% of the amount of compensation
of which the court issued. A writ of possession was
subsequently issued, and petitioner was able to take
physical possession of the properties. After which, the
expropriation proceedings remained dormant. 16 years
later, Javellana filed an ex parte motion/manifestation,
where he alleged that when he sought to withdraw the
money, he discovered that no deposit was made. Thus,
Javellana filed a complaint for recovery of possession,
fixing and recovery of rental and damages. The City of
Iloilo argues that Javellana could no longer bring an action
for recovery since the subject property was already taken
for public use. The trial court in its orders and amended
orders maintained that the assailed orders issued by it
were interlocutory in character and as such are always
subject to modification and revision by the court anytime.
Is the order of expropriation final?
A: Expropriation proceedings have two stages. The first phase
ends with an order of dismissal, or a determination that the
property is to be acquired for a public purpose. The second
phase consists of the determination of just compensation. Both
orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the
question of whether or not the plaintiff has properly and
legally exercised its power of eminent domain. Once the first

This is another multi-stage SCA it has 3 stages.


Q: What is foreclosure of Real Estate Mortgage (REM)?
A: It is the remedy used for the satisfaction of any monetary
obligation, which a person owes to another, by proceeding
against the property used to secure said obligation.
Note: It is commenced by a complaint setting forth the date
and due execution of the mortgage; the names and residences
of the mortgagor and the mortgagee; a description of the
mortgaged property; date of the note or other documentary
evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and the names and
residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the
mortgage (Sec. 1).
JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE
Judicial Foreclosure

Extra-judicial Foreclosure

Governed by Rule 68

Governed by Act 3135

There is only an equity of


redemption except when the
mortgagee is a bank

Right of redemption exists

Requires court intervention

No court intervention
necessary

Mortgagee need not be given


a special power of attorney.

Mortgagee is given a special


power of attorney in the
mortgage contract to
foreclose the mortgaged
property in case of default

A mortgagee may bring a personal action for the amount due,


instead of a foreclosure suit, in which case, he will be deemed
to have waived his right to proceed against the property in a
foreclosure proceeding. (Movido v. RFC, G.R. No. L-11990,
May 29, 1959).
There is no judicial foreclosure of a chattel mortgage.

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Extra-judicial foreclosure of real mortgage is governed by a


special law, Act 3135, the Real Estate Mortgage Law. We deal
only with the notary public or the court sheriff. There is a
circular issued by the SC concerning extra-judicial real estate
mortgage, so we follow that SC circular when it comes to
extra-judicial foreclosure. In the circulars, the mortgagee will
not need to file a complaint, but instead will be dealing with
notary public or sheriff. There will also be public auction,
period of redemption, and consolidation of title by RoD. The
only time when the purchaser in this foreclosure needs to go to
court is when the purchaser needs to recover possession of the
property. He will have to go to court in order to petition for
the issuance of a writ of possession.
In extra-judicial foreclosure of mortgage, the period of
redemption is similar to Rule 39, 1 year from registration of
the certificate of sale. This period of redemption is one of the
distinctions of judicial under Rule 68 and extra-judicial
foreclosure of mortgage.
Redemption in judicial foreclosure is called equity of
redemption. It is redemption just the same. Period of
redemption is between 90 to 120 days from entry of judgment.
Such short period is actually misleading, as it can be without a
definite end. The counting must be commenced from
ENTRY of judgment or final order. There are 3 judgments
or final orders to be rendered in judicial foreclosure. For
each stage, there could be an appeal in each final order.
The counting starts upon entry of all three judgments or
final orders. Thus, if one or two judgments were appealed in
the CA up to the SC, then such period is extended until the
finality of the said judgments, which could take many years.
If an appeal is perfected on time, there can be no entry of
judgment. This is the reason why mortgagees are discouraged
from engaging in judicial foreclosures.
Q: Distinguish equity of redemption from right of
redemption.
A:
Equity of Redemption

Right of Redemption

Right of the defendant


mortgagor to extinguish the
mortgage and retain
ownership of the property
by paying the debt within
90-120 days after the entry
of judgment or even after the
foreclosure sale but prior to
confirmation

Right of the debtor, his


successor in interest or any
judicial creditor or judgment
creditor of said debtor or any
person having a lien on the
property subsequent to the
mortgage or deed of trust
under which the property is
sold to redeem the property
within 1 year from the
registration of the Sheriffs
certificate of foreclosure sale

Governed by Rule 68

Governed by Secs. 29-31,


Rule 39

There is no right of redemption in judicial foreclosure sale


after the confirmation of sale except those granted by banks or
banking institutions in favor of non-judicial persons as
provided by the General Banking Act (Government Insurance
System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989).
In extra-judicial foreclosure, the mortgagor has the right to
redeem the property within one year from the registration of
the deed of sale. However, Sec. 47 of the General Banking Act
provides that in case of extra-judicial foreclosure, juridical

persons shall have the right to redeem the property until, but
not after, the registration of the certificate of foreclosure sale
which in no case shall be more than 3 months after
foreclosure, whichever is earlier.
The pendency of the action stops the running of the right of
redemption. Said right continues after perfection of an appeal
until the decision of the appeal. (Consolidated Bank and Trust
Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)
A mortgagee can only foreclose extra-judicially under the
Real Mortgage Law if he is given an SPA to do so by the
mortgagor. Otherwise, he must make use of judicial
foreclosure of mortgage. If mortgagee files a complaint for
judicial foreclosure, the first problem is jurisdiction.
SC held that foreclosure of REM is always cognizable under
the RTC. It is not capable of pecuniary estimation.
Notwithstanding the nature of foreclosure of a real estate, the
SC used the reasons in expropriation. SC held that a judicial
foreclosure of a real estate mortgage is incapable of pecuniary
estimation since in the first stage, the court determines the
right of plaintiff to foreclose, which is incapable of pecuniary
estimation.
Rule 68 already tells who should be the plaintiff as well as
who to implead defendant. The defendants should be the
debtor and the mortgagor. The debtor is different from
mortgagor. And debtor must also implead as co-defendants
persons who might have interests or liens subsequent to the
mortgagee. By implication, the owner of a piece of land can
validly mortgage his land more than once. He can mortgage
the land to A, then to B, and then C.
If the mortgage loans are all defaulted, the defendant, if he has
not given any authority to foreclose the mortgage, is sure to be
impleaded as a defendant in the complaint for judicial
foreclosure of a real estate mortgage. It is the first mortgagee
who judicially forecloses the mortgage and if he follows the
Rules, the first mortgagee should implead the debtor, the
mortgagor and the subsequent mortgagees.
Does it mean to say that the debtor is an indispensible
party?
Yes. The mortgagor is an indispensable party, whose property
is sought to be foreclosed. Remember that a mortgage is a
collateral contract. There must always be a principal contract
coupled with a contract of real estate mortgage. Thus, we
should always implead the mortgagor, who is an indispensable
party in the recovery of the indebtedness.
How about the mortgagor, is he an indispensible party?
Yes. He is also an indispensible party as it is his property that
will be foreclosed. He might lose his property if it is
foreclosed to satisfy the obligation incurred by the debtor.
Supposing the mortgagor files an answer and sets up the
defense that the mortgage insofar as he is concerned is
void due to lack of consideration thereto, is this a valid
argument against the foreclosure?
It is untenable. In civil law, where there is a collateral under
an accessory contract, the consideration under the principal
contract serves automatically as the consideration for the
accessory contract. The mortgagor only has himself to blame,
setting up his property as security for the benefit of the debtor
without compensation.

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Subsequent lien holders are necessary parties, so they will lose


their equity of redemption incase the plaintiff wins the case.
The only reason why subsequent mortgagees should be
impleaded under the Rules is to protect the 1st mortgagee,
assuming that he wins the case, from these subsequent lien
holders (subsequent mortgagees) from exercising their equity
of redemption. If the subsequent mortgagees are not
impleaded, and there is a decision in favor of the 1st
mortgagee, the subsequent mortgagees will not lose their
equity of redemption. Meaning, they do not start to count the
90 to 120 days period from entry of judgment so as to bar
these subsequent lien holders from exercising their right to
equity of redemption. That is the only reason why Rule 68
says that subsequent lien holders should be impleaded,
because they are necessary parties, so that they will lose their
equity of redemption if ever the 1st mortgagee will win the
case.

THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay off
the indebtedness, the court will be determining if there is any
deficiency and issue another final order authorizing the
recovery of the deficiency.
The recovery of the deficiency will be governed by Rule 39,
because the property/collateral has already been sold at public
auction. We are going to apply, for purposes of recovery of
deficiency, execution of judgment. The recovery of deficiency
is the third final order. If there is no satisfaction of the
deficiency through voluntary payment, the foreclosing
mortgagee will have to avail of Rule 39. He can move for the
issuance of a writ of execution.

STAGES OF JUDICIAL FORECLOSURE

But in that 3rd stage, do not forget that the only one who is
liable now is the debtor. The mortgagor will not be liable for
any deficiency, because the mortgagor is not the debtor. The
mortgagor is liable only to the extent of the value of his
collateral. He cannot be held personally liable for the value of
the deficiency, unless he makes himself solidarily liable
together with the debtor. So in the recovery of deficiency, only
the principal debtor is held liable, but not the mortgagor of the
property.

FIRST STAGE
In the first stage, the court determines the liability of the
debtor, and the court will order the debtor to pay his
indebtedness within a 90- to 120-day period from entry of
judgment. The mortgagor is not the one ordered to pay the
secured indebtedness, it is the debtor who must pay.

Since we are going to apply Rule 39, there will be a levy on


execution of properties of the debtor. If these are sold at public
auction, there will be another round of legal redemption, 1
year from registration of the certificate of sale in the RoD, but
not because of the foreclosure, but because of the issuance of
the foreclosure court of a writ of execution.

But in our given facts, we do not expect the debtor to pay,


because the property anyway does not belong to him. He will
leave the problem to the mortgagor. If there is no payment,
and the judgment is not appealed, it will be entered. The entry
will not cut off the equity of redemption. The equity of
redemption shall exist until after the entry of the 2nd
judgment.

Q: What is deficiency judgment?


A: It is the judgment rendered by the court holding the
defendant liable for any unpaid balance due to the mortgagee
if the proceeds from the foreclosure sale do not satisfy the
entire debt.

In an indispensible party is not impleaded, the court will order


plaintiff to amend his complaint and include said party.
Failure to implead an indispensible party despite order of the
court will result in the dismissal of the case.

If the debt is paid, the proceedings become academic. There is


no more reason for the mortgagee continue his complaint if
the debt is paid. It is the obligation of the mortgagee to cancel
the mortgage if the obligation is finally settled. But if the
obligation is not paid, the proceedings will go to the 2nd stage.
SECOND STAGE
The foreclosure court orders the sale of the mortgaged
property at public auction. The court will issue an order
directing the sheriff to sell the property in a public auction
under Rule 39, as well as in the Mortgage Law.
If the property is sold to the highest bidder, do we now cut
off the equity of redemption?
We do not cut off as of yet the equity of redemption even
when the property has been sold at public auction. What the
court will do next after the public auction is conducted is to
resolve the motion for the confirmation of the validity of the
auction sale. This is the second final order of confirmation. It
is appealable. When an appeal is seasonably filed, the final
order of confirmation is not entered, the equity of redemption
will still continue to run. It will not be interrupted until the 2nd
judgment is entered. If 2nd final order is entered, that will not
mark the end of the proceedings. That will only mark the
beginning of the 3rd stage.

Q: What are the instances when the court cannot render


deficiency judgment?
A: where the debtor-mortgagor is a non-resident and who at
the time of the filing of the action for foreclosure and during
the pendency of the proceedings was outside the Philippines,
then it is not procedurally feasible. It is by nature in personam
and jurisdiction over the person is mandatory.
In one case decided by the SC, the debtor secured his
indebtedness with a real estate mortgage to his own
property. The lender/mortgagee obligated the debtor to
issue post-dated checks for the payment of the obligation.
The mortgagees filed criminal cases since the checks he got
from the mortgagor were dishonored upon presentation.
During the pendency of the criminal cases, since the
principal obligation remained unpaid, the mortgagee
availed of the special civil action for judicial foreclosure of
mortgage of the mortgagors property. The mortgagor,
previously summoned in the criminal cases, sought for the
dismissal of the foreclosure case, claiming that the civil
aspect of BP 22 should not be separated from the criminal
aspect as it is automatically carried with the criminal case,
and that mortgagee has split his causes of action in filing
the special civil action for judicial foreclosure. Is the
mortgagor correct?
In an earlier case, the SC upheld the mortgagor. The special
civil action for judicial foreclosure was dismissed. There was

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really splitting of causes of action. The criminal cases


stemmed from the issuance of the debtor of the checks, which
were dishonored. In a mortgage relationship, there are
effectively 2 contracts entered into between the mortgagor and
mortgagee. The principal contract, usually a loan, and an
accessory contract of mortgage. If the mortgagee files a
separate complaint for the recovery of the loan without
foreclosing the mortgage, he can do so. The filing of a
separate complaint for the purpose of recovering the loan will
be considered as a waiver of the collateral arrangement. The
mortgagee, if he does this, is deemed to have abandoned the
mortgage. He is deemed to have converted his secured loan to
an unsecured loan. The ordinary civil action of the loan will
bar a second complaint for the judicial foreclosure of
mortgage.
In a 2011 decision, involving the same set of facts, the SC
changed its course. SC held that the existence of a criminal
case for violation of BP 22 is not a ground to conclude that the
mortgagee has abandoned his mortgage lien. Notwithstanding
the criminal case for violation of BP 22 pending before the
MTC, the mortgagee can still institute a judicial foreclosure of
the mortgage.
Q: Arlene borrowed P1 million from GAP Bank (GAP)
secured by the titled land of her friend Gretchen who,
however, did not assume personal liability for the loan.
Arlene defaulted and GAP filed an action for judicial
foreclosure of the real estate mortgage impleading Arlene
and Gretchen as defendants. The court rendered judgment
directing Arlene to pay the outstanding account of P1.5
million (principal plus interest) to GAP. No appeal was
taken by Arlene. Arlene failed to pay the judgment debt
within the period specified in the decision. At the
foreclosure sale, the land was sold to GAP for P1.2 million.
The sale was confirmed by the court, and the confirmation
of the sale was registered with the Registry of Deeds on
January 5, 2002.
On January 10, 2003, GAP filed an ex-parte motion with
the court for the issuance of a writ of possession to oust
Gretchen from the land. It also filed a deficiency claim for
P800,000 against Arlene and Gretchen. The deficiency
claim was opposed by Arlene and Gretchen.
1. Resolve the motion for the issuance of a writ of
possession.
2. Resolve the deficiency claim of the bank.
A:
1. In judicial foreclosure by banks such as GAP, the
mortgagor or debtor whose real property has been sold on
foreclosure has the right to redeem the property within 1
year after the sale (or registration of the sale). However,
under Sec. 47 of the General Banking Law of 2000, the
purchaser at the auction sale has the right to obtain a writ
of possession after the finality of the order confirming sale.
The motion for writ of possession, however, cannot be filed
ex parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be enforced
against the mortgage debtor Arlene, but it cannot be
enforced against Gretchen, the owner of the mortgaged
property, who did not assume personal liability of the loan.
(2003 Bar Question)

INSTANCES WHEN COURT CANNOT RENDER


DEFICIENCY JUDGMENT
Q: What are the instances when the courts cannot render
deficiency judgment?
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and is not found in the
Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the
probate court under Sec. 7, Rule 86; and
4. Mortgagee is a third person but not solidarily liable with the
debtor.
If the mortgagee holds a chattel mortgage, he will have to
foreclose it under the provisions of the Chattel Mortgage Law
via an extra-judicial foreclosure of chattel mortgage. The
problem of the mortgagee in a chattel mortgage is similar to
that of a mortgagee in a real estate mortgage. In mortgage
arrangements, the collateral is usually left to the possession of
the mortgagor. In real estate mortgage, mortgagor continues to
be in possession of the real property. In a chattel mortgage,
chattel is retained by mortgagor. (If mortgagor loses
possession of the personal property, the contract will not
remain a contract of mortgage, but one of pledge.) With
respect to real estate mortgage, the possession of the collateral
by debtor does not give much of a problem. Mortgagee, if he
is the highest bidder, can ask for writ of possession after the
auction sale. The problem by the mortgagee in a chattel
mortgage is that the personal property must be in his
possession before he can extra-judicially sell the chattel
subject to the mortgage. Mortgagees in a chattel mortgage
usually resort to court action by filing a complaint for
replevin and avail of the provisional remedy of a warrant
of seizure or a writ of replevin. The court can grant the
provisional remedy even before the mortgagor files an
answer. Once the mortgagee gains possession of the chattel,
he can proceed with the process of extra-judicial foreclosure
of a chattel mortgage.
PARTITION
It is a special civil action which could involve both personal
and real properties unlike judicial foreclosure.
A complaint for partition is predicated on the theory that
plaintiff and defendant are co-owners of the properties subject
of litigation. The basis of a complaint of partition is that the
plaintiff is allegedly a co-owner of the property together with
other co-owners who are impleaded as defendants. What is
essential in the complaint is that ALL co-owners of the
plaintiff must be impleaded in the case as defendants.
Q: What is partition?
A: It is a process of dividing and assigning property owned in
common among the various co-owners thereof in proportion to
their respective interests in said property. It presupposes the
existence of a co-ownership over a property between two or
more persons. The rule allowing partition originates from a
well-known principle embodied in the Civil Code, that no coowner shall be obliged to remain the co-ownership. Because
of this rule, he may demand at any time the partition of the
property owned in common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: What are the requisites of a valid partition?
A:
1. Right to compel the partition;

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2. Complaint must state the nature and extent of plaintiff's title


and a description of the real estate of which partition is
demanded; and
3. All other persons interested in the property must be joined
as defendants (Sec. 1, Rule 69)
Who may file and who should be made defendants?
A: The action shall be brought by the person who has a right
to compel the partition of real estate (Sec. 1, Rule 69) or of an
estate composed of personal property, or both real and
personal property (Sec. 13, Rule 69). The plaintiff is a person
who is supposed to be a co-owner of the property or estate
sought to be partitioned. The defendants are all the co-owners.
SC said that all co-owners are indispensable parties. Even if
one is left out, the judgment of partition will never become
final and executory. So, all of the co-owners MUST be
impleaded.
Q: What is the effect of non-inclusion of a co-owner in an
action for partition?
A:
1. Before judgment not a ground for a motion to dismiss.
The remedy is to file a motion to include the party.
2. After judgment makes the judgment therein void because
co-owners are indispensable parties.
Note: Creditors or assignees of co-owners may intervene and
object to a partition affected without their concurrence. But
they cannot impugn a partition already executed unless there
has been fraud or in case it was made notwithstanding a
formal opposition presented to prevent it. (Sec. 12, Rule 69)
Can co-owners agree among themselves to partition
without going to court?
Yes. If they were able to agree among themselves, then they
do not need to go to court anymore. The only time they go to
court is the time when they cannot agree in the partition. But
even if they cannot agree at the start, and therefor there is now
a complaint for partition now filed in court, during the
pendency of the case, they can file agree voluntarily on how to
partition that property. And if they want, they can submit the
agreement of partition to the court. If the court approves the
agreement of partition, that will be a decision on the merits by
the court. It is a partition in the form of a compromise
agreement duly approved by the court. So even during the
pendency of the case, there nothing to prevent the plaintiff and
the defendants from entering voluntarily into a voluntary
partition. They may not allow the court to decide how the
property will be divided.
But if the parties insist in partition to be done by the court, it
will involve a 2-stage proceeding.
Partition is a two-stage proceeding.
First proceeding the court will issue an order for partition,
Second proceeding the court may appoint commissioners to
determine how the property will be divided among the coowners.
There could be a third stage if there is no agreement on the
system of accounting for the properties; the court will order
the co-owner who has been managing the property to submit
his accounting to the court for its approval, but he furnishes a
copy to show how he has spent the income and how he has
kept the income as a fund for the preservation of the property.

What are the two aspects of partition proceedings?


A:
1. Existence of co-ownership; and
2. Accounting or how to actually partition the property.
Note: During the trial, the court shall determine whether or
not the plaintiff is truly a co-owner and there is co-ownership
and that partition is not legally proscribed, the court will issue
an order of partition. It directs the parties to partition the
property by proper instruments of conveyance, if they agree
among themselves.
If they do agree, the court shall then confirm the partition so
agreed and such is to be recorded in the registry of deeds of
the place in which the property is situated (Sec 2, Rule 69).
There always exists the possibility that the parties are unable
to agree on the partition. Thus, the next stage is the
appointment of commissioners.
What are the stages in an action for partition which could
be the subject of appeal?
A:
1. Order determining the propriety of the partition
2. Judgment as to the fruits and income of the property
3. Judgment of partition (Riano, Civil Procedure: A
Restatement for the Bar, p. 596, 2009 ed.)
ORDER OF PARTITION AND PARTITION BY
AGREEMENT
Q: What is an order of partition?
A: The order of partition is one that directs the parties or coowners to partition the property
Q: When does the court issue the order of partition?
A: During the trial, the court shall determine whether or not
the plaintiff is truly a co-owner of the property, that there is
indeed a co-ownership among the parties, and that a partition
is not legally proscribed thus may be allowed. If the court so
finds that the facts are such that a partition would be in order,
and that the plaintiff has a right to demand partition, the court
will issue an order of partition.
Note: The court shall order the partition of the property
among all the parties in interest, if after trial it finds that the
plaintiff has the right to partition (Sec. 2, Rule 69). It was held
that this order of partition including an order directing an
accounting is final and not interlocutory and hence,
appealable; thus, revoking previous contrary rulings on the
matter. A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby.
When is partition by agreement proper?
A: The parties may make the partition among themselves by
proper instruments of conveyance, if they agree among
themselves. If they do agree, the court shall then confirm the
partition so agreed upon by all of the parties, and such
partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in
which the property is situated (Sec. 2, Rule 69).cc
If you happen to read the provisions in the NCC on coownership, it would seem that if there is a complaint for
partition filed by one co-owner against the other co-owners, it
seems the other co-owners cannot set up a very meritorious
defense. When one of the co-owners wants to leave, that is a
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right given him by substantive law. Nobody can stop him from
leaving the co-ownership.
In one recent case, the SC said that here could be a good
defense in a complaint for partition. Even if the court finds
property is co-owned, and one co-owner decides to leave, the
court cannot simply issue a decision in favor of the
plaintiff/co-owner that will lead to the dissolution of the coownership. SC cited the provision in the Family Code citing
Article 159, which substantially says that if there are coowners of a property by reason of their right to inheritance
from a predecessor in interest, and one of them is a minor
residing in the property, the court cannot subject the property
to partition and the co-ownership cannot be dissolved until the
minor shall be capacitated. That would be a good defense in a
complaint for partition.
FC Art. 159. The family home shall continue despite the
death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there
is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the property
or constituted the family home.

I suggest that you read provisions of the NCC on the propriety


of a partition among co-heirs if one of them is a minor who is
residing in the property owned in common. It seems that the
co-ownership shall continue to exist for 10 years if there is a
minor residing in that property. That property cannot be
simply be ordered to be divided by the court, even if there is a
complaint for partition
NCC Articles related to partition among heirs
Art. 238. Upon the death of the person who has set up the
family home, the same shall continue, unless he desired
otherwise in his will. The heirs cannot ask for its partition
during the first ten years following the death of the person
constituting the same, unless the court finds powerful
reasons therefor.
Art. 494. No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is
concerned.

Art. 1078. Where there are two or more heirs, the whole estate
of the decedent is, before its partition, owned in common by
such heirs, subject to the payment of debts of the deceased. (n)
Art. 1081. A person may, by an act inter vivos or mortis causa,
entrust the mere power to make the partition after his death to
any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or a
person subject to guardianship; but the mandatory, in such
case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees or
devisees.
Art. 1082. Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, and
exchange, a compromise, or any other transaction.
Art. 1083. Every co-heir has a right to demand the division of
the estate unless the testator should have expressly forbidden
its partition, in which case the period of indivision shall not
exceed twenty years as provided in article 494. This power
of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one
of the co-heirs.
Art. 1084. Voluntary heirs upon whom some condition has
been imposed cannot demand a partition until the
condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights which
the former may have in case the condition should be
complied with, and until it is known that the condition has
not been fulfilled or can never be complied with, the
partition shall be understood to be provisional.
FC Art. 159. The family home shall continue despite the death
of one or both spouses or of the unmarried head of the family
for a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the
family home.

Nevertheless, an agreement to keep the thing undivided for


a certain period of time, not exceeding ten years, shall be
valid. This term may be extended by a new agreement.

Note: Family Code is a subsequent law, hence the limit is


10 years/

A donor or testator may prohibit partition for a period which


shall not exceed twenty years.

Unlawful Detainer and Forcible Entry (Rule 70)


Read NCC articles on lease (especially those relevant to UD)

Neither shall there be any partition when it is prohibited by


law.

LEASE
Art. 1669. If the lease was made for a determinate time, it
ceases upon the day fixed, without the need of a demand.

No prescription shall run in favor of a co-owner or co-heir


against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.

SECTION 6. - Partition and Distribution of the Estate


SUBSECTION 1. - Partition

Art. 1670. If at the end of the contract the lessee should


continue enjoying the thing leased for fifteen days with the
acquiescence of the lessor, and unless a notice to the
contrary by either party has previously been given, it is
understood that there is an implied new lease, not for the
period of the original contract, but for the time established
in Articles 1682 and 1687. The other terms of the original
contract shall be revived.

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Art. 1671. If the lessee continues enjoying the thing after


the expiration of the contract, over the lessor's objection,
the former shall be subject to the responsibilities of a
possessor in bad faith.
Art. 1672. In case of an implied new lease, the obligations
contracted by a third person for the security of the principal
contract shall cease with respect to the new lease.
Art. 1673. The lessor may judicially eject the lessee for any of
the following causes:
(1) When the period agreed upon, or that which is fixed for the
duration of leases under Articles 1682 and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the
contract;
(4) When the lessee devotes the thing leased to any use or
service not stipulated which causes the deterioration thereof;
or if he does not observe the requirement in No. 2 of Article
1657, as regards the use thereof.
The ejectment of tenants of agricultural lands is governed by
special laws.
Art. 1674. In ejectment cases where an appeal is taken the
remedy granted in Article 539, second paragraph, shall also
apply, if the higher court is satisfied that the lessee's appeal is
frivolous or dilatory, or that the lessor's appeal is prima facie
meritorious. The period of ten days referred to in said article
shall be counted from the time the appeal is perfected.
Art. 1675. Except in cases stated in Article 1673, the lessee
shall have a right to make use of the periods established in
Articles 1682 and 1687.

Art. 1147. The following actions must be filed within one


year:
(1) For forcible entry and detainer;
(2) For defamation.

Rule 70 FORCIBLE ENTRY (FE) AND UNLAWFUL


DETAINER (UD)
Rule 70 contains 2 special civil actions which are different
from one another, FE and UD.
FE and UD are special civil actions cognizable exclusively in
the MTC following summary procedures. The provisions of
Rule 79 are practically a reproduction of summary procedures.
They are initiated by a complaint filed in the MTC.
Both are real action, but we do not follow BP 129 which uses
the assessed value to determine jurisdiction. Under BP 129,
real actions are cognizable by an MTC or an RTC depending
upon the assessed value of the real property involved. FE and
UD are cognizable by an MTC regardless of the assessed
value of the property or other collateral issues that could be
raised like unpaid rentals or recovery of damages. So if there
is a complaint for unlawful detainer with a claim for back
rentals amounting to 1M, the case is still cognizable by the
MTC. In certain instances, the landlord/land owner is
interested only in the recovery of the back rentals. And if he
decides to file a complaint solely for recovery of the 1M back
rentals, then the case is cognizable in the RTC, since the case
is no longer one for unlawful detainer

UD, just like FE, is for the recovery of physical possession of


property. The recovery of money is only an incident to the
principal action.
Q: What is forcible entry?
A: It is entry effected by force, intimidation, threat, strategy,
or stealth; the action is to recover possession founded upon
illegal possession from the beginning.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid forcible entry?
A:
1. A person is deprived of possession of any land or building
by force, intimidation, threat, strategy, or stealth; and
2. Action is brought within 1 year from the unlawful
deprivation. (Sec. 1)
Q: What are the questions to be resolved in an action for
forcible entry?
A:
1. Who has actual possession over the real property;
2. Was the possessor ousted therefrom within one year from
the filing of the complaint by force, intimidation, strategy,
threat or stealth; and
3. Does the plaintiff ask for the restoration of his possession
(Dizon v. Concina, G.R. No. 23756, Dec. 27, 1969)
Q: What is unlawful detainer?
A: It is unlawful detention by a person who has acquired
possession rightfully, but who detains the property after the
right to keep possession has ended.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid unlawful detainer?
A:
1. Possession of any land or building is unlawfully withheld
from a lessor, vendor, vendee, or other person after the
expiration or termination of the right to hold possession by
virtue of any contract express or implied;
2. Action is brought within 1 year after such unlawful
deprivation or withholding of possession; and
3. Demand to pay or comply with the conditions of the lease
and to vacate is made upon the lessee. (Sec. 1)
Q: Is formal contract a prerequisite in unlawful detainer?
A: The existence of a formal contract is not necessary in
unlawful detainer. Even if there is no formal contract between
the parties, there can still be an unlawful detainer because
implied contracts are covered by ejectment proceedings.
Possession by tolerance creates an implied promise to vacate
the premises upon the demand of the owner (Peran v. CFI of
Sorsogon, G.R. No. 57259, Oct. 13, 1983).
Q: Does the amount of rents and damages prayed for in an
action for forcible entry and unlawful detainer affect the
jurisdiction of the courts?
A: No. The amount of rents and damages claimed does not
affect jurisdiction of the MTCs because the same are only
incidental or accessory to the main action (Lao SengHian v.
Lopez, G.R. No. L-1950, May 16, 1949).
Note: If only rents or damages are claimed in an ordinary
action, the action is personal and the amount claimed
determines whether it falls within the jurisdiction of the RTC
or the MTC.

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Q: Distinguish forcible entry from unlawful detainer.


A:
Forcible
Unlawful
Detainer
Entry (Detentacion)
(Desahucio)
Possession of the land by the Possession is inceptively
defendant is unlawful from lawful but it becomes illegal
the beginning as he acquires by reason of the termination
possession
by
force, of his right to the possession
intimidation, strategy, threat
of the property under his
or stealth.
contract with the plaintiff.
No previous demand for the Demand is jurisdictional if
defendant to vacate the the ground is non-payment of
premises is necessary.
rentals or failure to comply
with the lease contract.
The plaintiff must prove that The plaintiff need not have
he was in prior physical been in prior physical
possession of the premises possession.
until he was deprived thereof
by the defendant.
The 1 year period is generally Period is counted from the
counted from the date of date of last demand or last
actual entry on the land.
letter of demand.

DISTINGUISHED FROM ACCION PUBLICIANA AND


ACCION REINVINDICATORIA
Q: What are the possessory actions on real property?
A:
Accion
Accion
Accion
Interdictal
Publiciana
Reinvindicatoria
Summary action A plenary action An action for the
for the recovery of for the recovery of recovery
of
physical
the real right of ownership, which
possession where possession when necessarily
the dispossession the dispossession includes
the
has not lasted for has lasted for recovery
of
more than 1 year. more than 1 year. possession.
All
cases
of RTC
has RTC
has
forcible entry and jurisdiction if the jurisdiction if the
unlawful detainer value
of
the value
of
the
irrespective of the property exceeds property exceeds
amount
of P20,000
or P20,000
or
damages or unpaid P50,000 in Metro P50,000 in Metro
Manila.
rentals sought to Manila.
be
recovered MTC
has MTC
has
should be brought jurisdiction if the jurisdiction if the
to the MTC.
value
of
the value
of
the
property does not property does not
exceed the above exceed the above
amounts.
amounts.

Usually in UD, the contract involved is a contract of lease.


There is a land lord-tenant relationship, the tenant does not
pay rental, there is a written demand to vacate and to pay back
rentals, and if tenant fails to pay, then there could be a
complaint for UD.
But, these remedies appear to have been modified by the
decisions of the SC. For instance, in a past case, about 30
years ago, there was a case involving a contract of lease on a
commercial property. There was a stipulation in the contract
which states that if the tenant does not pay rentals, for
instance, 3 months, the land lord will send a letter demanding
that the tenant must vacate the property and pay the back
rentals for 3 months. If the tenant still failed to pay, the land
lord can extra-judicially take over the property. Under that

stipulation, the land lord does not have to go to court in order


to recover physical possession of the property. What the land
lord will do is to go to the premises, throw out the things of
the tenant, change the locks of the doors of the property, and
accept a new tenant. When the tenant challenged the validity
of the stipulation in the SC, the SC at that time held that the
stipulation was valid. The SC held that the contract was one of
lease with a resolutory condition. When the tenant fails to pay,
he loses his right to possess the property.
The latest decision involving this kind of stipulation in a
contract of lease was last 2009/10, one of the parties was By
the Bay, Inc. It also involved a lease of a commercial property,
with essentially the same set of facts involving the same
stipulation, that the land lord can take over the property extrajudicially if tenant failed to pay upon written demand to pay
back rentals and vacate. The SC affirmed it past decision, that
the lease contract is one with a resolutory condition.
As of now, it seems that if you are lawyering for the land lord,
and you want to protect the land lord without a need to go to
court file a case for unlawful detainer, all you have to do is to
incorporate a stipulation in the contract of lease authorizing
the land lord to take over extra-judicially the possession of the
property. SC said this is a valid stipulation, there is nothing
wrong with it. Under our system, a contract is the law between
the parties. There is nothing wrong if the tenant agrees in a
contract of lease to be ejected without a court order by virtue
of a written stipulation in the contract of lease. These contracts
have been accepted as valid by the SC. So, such stipulation is
a valid stipulation in a lease contract.
But in the event that the contract of lease does not contain
such stipulation, if the tenant has failed to pay rentals for
several months, the only recourse of the land lord is to file a
complaint before the MTC for unlawful detainer.

Supposing the land lord of a contract without that


stipulation physically enters the property, ejects the
tenant, throws out the things of the tenant and starts to
occupy the property. The land lord is now in possession of
the property. Can the tenant file a case against the land
lord for forcible entry?
Yes. When the land lord forces his way into the rented
property (subject to a contract of lease without the resolutory
condition), and the land lord acquired the property through
force, intimidation, strategy or stealth, that is forcible entry.
Is there anything improper if the tenant files a case for
unlawful detainer or forcible entry against the owner of
the property?
There is nothing wrong from the legal point of view, because
what is involved in unlawful detainer or forcible entry is not
ownership, it is physical possession of the property. So the
defendant in a case for FE or UD may be the owner of the
property when he is in unlawful possession of his own
property, depending upon the circumstances of the case.

What makes FA and UD special as a special civil action?


FE and UD are governed by summary procedures. But that
fact alone is not the most significant reason why FE and UD
are characterized as special civil actions. It is due to the
provision of immediate enforcement of a decision in favor
of the plaintiff under Sec. 19 Rule 70 that makes FE and

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UD a special civil action. The decision is immediately


executory, although it is appealable. But even if appealed,
the decision is immediately executory. The appeal shall not
stop the court in performing in its ministerial duty to execute
the decision in a case of FE or UD. The execution of the
decision here is a matter of right on the part of the plaintiff,
and not a matter of discretion of the court.
Why the radical change from the procedural rules that we
had in ordinary civil actions?
This is because of the provision found in Section 4 Rule 39.
Under Rule 39, the general principle is that we cannot execute
as a matter of right a judgment that has not been entered.
Generally, what can be executed as a matter of right is a
judgment duly entered.
There is an exception to this general rule in Section 4 Rule 39,
rendering the judgment as executory as a matter of right,
although appealable. The first sentence in Section 4 states:
Judgments in actions for injunction, receivership, accounting
and support, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court. There are very few judgments that are executory as a
matter of right, and the phrase and such other judgments as
are now or may hereafter be declared to be immediately
executory includes FE and UD.
SEC. 4. Judgments not stayed by appeal.Judgments in
actions for injunction, receivership, accounting and
support, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court. On appeal therefrom, the appellate court in its discretion
may make an order suspending, modifying, restoring or
granting the injunction, receivership, accounting, or award of
support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party.
The fact is that a decision in favor of the plaintiff is
immediately executory as a matter of right, although the
aggrieved defendant could immediately appeal the said
decision, is there no contradiction in terms? Why?
There is no contradiction. This is because the Rules do not say
that simply because the defendant has appealed from the
judgment, the MTC cannot go on with execution of its
judgment. Thus, although appealable, the decision is
immediately executed.
If defendant does not want to be evicted right away on appeal,
Rule 70 requires the defendant can file supersideas bond duly
approved by the MTC [current rentals earned, referring to the
preceding month, according to the contract of lease or the
terms of the decision, plus cost of suit] to the cashier of the
RTC. While the case is on appeal, defendant should keep on
depositing said bond (monthly basis if rent is paid monthly
according to the contract of lease). Failure to do so, he will be
evicted, but the appeal continues.
How is the execution of judgment stayed?
A: Defendant must take the following steps to stay the
execution of the judgment:

1. Perfect an appeal;
2. File a supersideas bond to pay for the rents, damages and
costs accruing down to the time of the judgment appealed
from; and
3. Deposit periodically with the RTC, during the pendency of
the appeal, the adjudged amount of rent due under the contract
or if there be no contract, the reasonable value of the use and
occupation of the premises (Sec. 19, Rule 70).
Q: When is demand necessary?
A: Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only after the
demand to pay or comply with the conditions of the lease and
to vacate is made upon the lessee (Sec. 2). The requirement for
a demand implies that the mere failure of the occupant to pay
rentals or his failure to comply with the conditions of the lease
does not ipso facto render his possession of the premises
unlawful. It is the failure to comply with the demand that vests
upon the lessor a cause of action.
Q: In what form should the demand be made?
A: The demand may be in the form of a written notice served
upon the person found in the premises. The demand may also
be made by posting a written notice on the premises if no
person can be found thereon (Sec. 2). It has been ruled,
however, that the demand upon a tenant may be oral (Jakihaca
vs. Aquino, 181 SCRA 67). Sufficient evidence must be
adduced to show that there was indeed a demand like
testimonies from disinterested and unbiased witnesses.
The RTC is the appellate court in FE and UD cases. If the
RTC decides against appellant/tenant and the tenant
appealed in the CA, what can be done to prevent eviction
on appeal to the CA under Rule 65?
The filing of a supersideas bond cannot be applicable this
time. This process will apply if the decision appealed upon is a
decision of the MTC. If the RTC decides in favor of the land
lord, the judgment will still be executed as a matter of right,
and eviction can be had. The only way to prevent the
immediate eviction of the defendant tenant on appeal to
the CA is to apply for a TRO or writ of preliminary
injunction in the CA against the eviction of the tenant,
subject to filing of a bond if required by the CA.
There are mechanisms resorted to by a tenant in order to delay
an action to recover possession of property
What can the tenant file to protect his right to possess?
~In case of UD, the tenant can file a case for reconveyance or
reversion of tenanted property in the RTC
~He can also file a case for Quieting of Title in the RTC
~Complaint for Recovery of Possession in the RTC
The tenant filed a case for reconveyance of the property
subject to the lease in the RTC. During the pendency of the
case, the land lord filed a case for FE or UD to recover of
possession of the property subject to the lease. The tenant
asked the RTC to issue a writ of injunction or TRO against
the MTC, in order to prevent it from trying the case for
FE or UD. Is this allowed?
No. This is a settled issue. The tenant shall not be allowed to
cause the injunction of the case in the MTC. Although these 2
cases filed in different courts involve the same property, they
do not involve the same issue. FE and UD involve the issue of
physical possession of the property. In reconveyance or
quieting of title, the issue is also possession, but it is what is
called in the NCC as a real right of possession, not mere

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physical possession of the property. The SC had made it very


clear that we can have a case for FE or UD filed by the land
lord against the tenant pending in the MTC, and at the same
time, a case for reconveyance to reacquire the same property
subject to the lease pending before the RTC. SC held that
there is no litis pendencia here. Also, RTC cannot enjoin MTC
from trying the complaint for FE or UD, as MTC has
exclusive jurisdiction over cases of FE or UD.

Propriety of the awarding of damages in FE and UD.


There is a conflict in jurisprudence as to extent of damages
that could be awarded. The Section 1 of Rule 70 authorizes
awarding of damages, but it does not place a limit on the kind
of damages to be awarded. In Sec. 17, there is a clear
statement as to award of damages being a reasonable amount
as compensation for the use of the property if no amount is
stipulated in the lease contract.

Can the court grant injunction while the case is pending?


A: The court may grant preliminary injunction, in accordance
with the provisions of Rule 58, to prevent the defendant from
committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry
or unlawful detainer may, within five (5) days from the filing
of the complaint, present a motion in the action for forcible
entry or unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty
(30) days from the filing thereof (Sec. 15, Rule 70).

SECTION 1. Who may institute proceedings, and when.


Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession
of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by
virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee,
or other person may at any time within one (1) year after such
unlawful deprivation or withholding of possession, bring an
action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of posses-sion,
or any person or persons claiming under them, for the
restitution of such possession, together with damages and
costs.

Note: Prior demand to vacate and to pay is jurisdictional in


unlawful detainer, but not in all cases.
If the tenant had failed to pay rents for 3 months, and the land
lord immediately filed a case for UD without a prior demand
to vacate and to pay, the MTC does not acquire jurisdiction
over the case. A demand to vacate and to pay is jurisdictional
in FE or UD. But not in all cases.
IMPLIED NEW LEASE
In the NCC there are provisions governing the relationship
of land lord and tenant once the lease has expired. If the
tenant had remained in unlawful possession by tenant was
retained after 15 days from the end of the lease, there is an
implied new lease, but such implied new lease will be on a
month-to-month, day-to-day or quarterly basis, depending on
the previous contract of lease as to period of payment.
Art. 1670. If at the end of the contract the lessee should
continue enjoying the thing leased for fifteen days with the
acquiescence of the lessor, and unless a notice to the
contrary by either party has previously been given, it is
understood that there is an implied new lease, not for the
period of the original contract, but for the time established
in Articles 1682 and 1687. The other terms of the original
contract shall be revived.
At the end of the lease contract until the 15th day, the tenant is
deemed to be in unlawful possession of the leased property.
There is no need for the land lord to send a demand to vacate
to make the tenant an unlawful possessor, as he became so
from the operation of the NCC. Within the 15-day period, the
land lord can properly file a case for unlawful detainer against
the tenant by virtue of the termination of the lease. The NCC
itself calls the tenant as an unlawful possessor if he does not
surrender the property after the lease has already terminated.
The NCC has a caveat. If the tenant, after the termination of
the lease, remains in possession of the property for the next 30
days from the termination of the lease, and there is no action
filed by the land lord in court, the unlawful possession by the
tenant will be reconverted to a lawful possession because of
the implied new lease. The implied new lease is not for the
same period stipulated in the old contract of lease. It will be on
a month-to-month, day-to-day or quarterly basis, depending on
the previous contract of lease as to period of payment

SEC. 17. Judgment.If after trial the court finds that the
allegations of the complaint are true, it shall render judgment
in favor of the plaintiff for the restitution of the premises, the
sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises,
attorneys fees and costs. If it finds that said allegations are
not true, it shall render judgment for the defendant to recover
his costs. If a counterclaim is established, the court shall
render judgment for the sum found in arrears from either party
and award costs as justice requires.
There is a decision by the SC which held that Section 1 should
be implemented if fully proven in court. Moral damages,
temperate damages, as well as other forms of damages may be
awarded beside interest and the actual rent.
The greater number of SC decisions adhere to Section 17 Rule
70. There is a limit as to the award of damages that could be
had in MTC, and the MTC had always followed strictly the
provisions of Section 17. The award of damages is based on
the amount stated in the contract as rentals or if none, a
reasonable amount for the use of the property during the
tenantship.
In what instances may the court resolve issue of
ownership?
A: When the defendant raises the issue of ownership, the court
may resolve the issue of ownership only under the following
conditions:
(a) When the issue of possession cannot be resolved without
resolving the issue of ownership; and
(b) The issue of ownership shall be resolved only to determine
the issue of possession (Sec. 16).
Note: The assertion by the defendant of ownership over the
disputed property does not serve to divest the inferior court of
its jurisdiction. The defendant cannot deprive the court of
jurisdiction by merely claiming ownership of the property
involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401
SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant
raises the question of ownership and the issue of possession

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cannot be resolved without deciding the question of


ownership, the issue of ownership shall be resolved only to
determine the issue of possession (Sec. 3, RA 7691).

Rule 71 CONTEMPT
What is contempt?
A: It is a defiance of the authority, justice or dignity of the
court; such conduct as tends to bring the authority and
administration of the law into disrespect or to interfere with, or
prejudice litigant or their witnesses during litigation (Halili v.
CIR, G.R. No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with supporting
particulars and certified true copies of documents or papers
involved therein (Sec. 4).
Q: What are the kinds of contempt?
A:
1. Direct or indirect, according to the manner of commission.
2. Civil or Criminal, depending on the nature and effect of the
contemptuous act.
Q: Distinguish direct from indirect contempt?
A:
Direct Contempt
Indirect Contempt
Committed in the presence of Not committed in the
or so near a court.
presence of the court.
Summary in nature
Punished after being charged
and heard
If committed against:
IF COMMITTED AGAINST:
1. RTC fine not exceeding 1. RTC FINE NOT
P2,000 or imprisonment not EXCEEDING P30,000 OR
exceeding 10 days or both.
IMPRISONMENT
NOT
2. MTC fine not exceeding EXCEEDING 6 MONTHS
P200 or imprisonment not OR BOTH
exceeding 1 day, or both.
2. MTC fine not exceeding
P5,000 or imprisonment not
exceeding 1 month or both.
Remedy:
Certiorari
or Remedy: Appeal (by notice of
prohibition (or you could appeal)
follow the old jurisprudence,
file a petition for habeas
corpus on the ground that the
confinement is illegal. Dean
Jara)
AKA Contempt in facie AKA Constructive contempt
curiae (in front of the judge)

Distinguish criminal contempt from civil contempt.


A:
Criminal Contempt
Civil Contempt
Punitive in nature
Remedial in nature
Purpose is to preserve the Purpose is to provide a
courts authority and to remedy for an injured suitor
punish disobedience of its and to coerce compliance
orders
with an order for the
preservation of the rights of
private persons
Intent is necessary
Intent is not necessary
State is the real prosecutor
Instituted by the aggrieved
party or his successor or
someone who has pecuniary

Proof required is proof


beyond reasonable doubt.
If accused is acquitted, there
can be no appeal.

interest in the right to be


protected
Proof required is more than
mere
preponderance
of
evidence
If judgment is for respondent,
there can be an appeal

Q: What is the purpose of the power to contempt?


A: The reason for the power to punish for contempt is that
respect of the courts guarantees the stability of their
institution. Without such guarantee, said institution would be
resting on shaky foundation (Cornejovs.Tan, 85 Phil. 772).
Q: What is the nature of contempt power?
A: The power to punish for contempt is inherent in all courts;
its existence is essential to the preservation of order in judicial
proceedings and to the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the due
administration of justice.
Q: What are the dual aspects on the power to punish
contempt?
A:
1. Primarily, the proper punishment of the guilty party for his
disrespect to the courts; and
2. Secondarily, his compulsory performance of some act or
duty required of him by the court and which he refuses to
perform.

Contempt is the one that we can consider as a special civil


action for the following reasons:
Contempt is a special civil action where one can be sent to
jail whereas the case is civil in character.
There is no need to file a case, especially in direct
contempt. In ordinary cases, if there is no complaint, the
contender does not know who the plaintiff is, and he is
appearing before a court before a plaintiff can be identified.
But in direct contempt, it is clear that the plaintiff is the court.
A contender would practically have no chance to win in this
instance.
The complainant is the court, and the one who will decide
the case is still the complaining court.
What are the acts which are deemed punishable as indirect
contempt?
A:After a charge in writing has been filed, and an opportunity
given to the respondent to comment thereon within such
period as may be fixed by the court and to be heard by himself
or counsel, a person guilty of any of the following acts may be
punished for indirect contempt:
1. Misbehavior of an officer of a court in the performance of
his official duties or in his official transactions;
2. Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a person
who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into
or upon such real property, for the purpose of executing acts
of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;
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3. Any abuse of or any unlawful interference with the


processes or proceedings of a court not constituting direct
contempt under section 1 of this Rule;
4. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;

3. To be heard by himself or counsel. (Regalado v. Go, G.R.


No. 167988, Feb. 6, 2007)
NOTE: The rules on contempt under Rule 71 apply to
contempt committed against persons or entities exercising
quasi-judicial functions or in case there are rules for contempt
adopted for such bodies or entities pursuant to law, Rule 71
shall apply suppletorily (Sec 12, Rule 71)

5. Assuming to be an attorney or an officer of a court, and


acting as such without authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or property in
the custody of an officer by virtue of an order or process of a
court held by him (Sec. 3).
Note: Failure by counsel to inform the court of the death of
his client constitutes indirect contempt within the purview of
Sec. 3, Rule 71, since it constitutes an improper conduct
tending to impede the administration of justice.

Q: How may an action for indirect contempt be


commenced?
A:
1. By order or other formal charge by the court requiring the
respondent to show cause why he should not be punished for
contempt (motu propio); or (Show cause order)
2. By a verified petition with supporting particulars and
certified true copies of the necessary documents and papers
(independent action) (Sec. 4). (Separate petition)
Note: The first procedure applies only when the indirect
contempt is committed against a court or judge possessed and
clothed with contempt powers.
The second mode applies if the contemptuous act was
committed not against a court or a judicial officer with
authority to punish contemptuous acts. (Nazareno v. Barnes,
G.R. No. L-59072, Apr. 25, 1984)
The court does not declare the respondent in default since the
proceeding partakes the nature of a criminal prosecution
(Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982).
Indirect contempt is initiated through:
1. show cause order
2. independent action, which the court may consolidate with
the main case
If there is a separate petition for indirect contempt filed,
although it arises out of a pending case or is related to a
pending case, the petition is still an independent case, and
what the court usually does is to consolidate the pending case
with the petition to cite respondent in contempt of court.
Penalty in Contempt Cases
The penalty may be payment of fine or imprisonment.
Q: What are the procedural requisites before the accused
may be punished for indirect contempt?
A:
1. A charge in writing to be filed;
2. An opportunity for the person charged to appear and explain
his conduct; and

Because of the nature of direct contempt proceedings where


there is no initiatory proceeding filed, the remedy of the
contender is different from the remedy of the contender in
indirect proceedings.
Citation for indirect contempt is not immediately
executory, according to current jurisprudence. That is why
there is a remedy provided for in the Rules
Q: Lawyer Mendoza, counsel for the accused in a criminal
case, was cited for direct contempt by Judge Tagle and was
sentenced to 10 days imprisonment. Lawyer Mendoza was
placed in prison immediately. Lawyer Mendoza
manifested his readiness to post a bond and to appeal the
order by certiorari to stay its execution but Judge Tagle
said that the order is immediately executory. Is Judge
Tagle correct?
A: No. An order of direct contempt is not immediately
executory or enforceable. The contender must be afforded a
reasonable remedy to extricate or purge himself of the
contempt. Under Sec. 2, Rule 71, of the Rules of Court, a
person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of
certiorari or prohibition. The execution of the judgment shall
be suspended pending resolution of such petition, provided
such person files a bond fixed by the court which rendered the
judgment and conditioned that he will abide by and perform
the judgment should the petition be decided against him
(Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27,
2006).
Contenders remedy in indirect contempt is an ordinary
appeal as in criminal cases. In indirect contempt, if
contender is found guilty, he has the right to appeal.
In Direct Contempt, the remedy is Rule 65 or Habeas
Corpus.
BP 129 has done away with bond in cases of contempt. But, a
bond is still required to be posted in APPEALING the
judgment of contempt in order to suspend the execution
thereof.

What is the remedy against direct contempt and its


penalty?
A:
1. The penalty for direct contempt depends upon the court
which the act was committed;
a. If the act constituting direct contempt was committed
against an RTC or a court of equivalent or higher rank,
the penalty is a fine not exceeding 2,000 pesos or
imprisonment not exceeding 10 days, or both;
b. If the act constituting direct contempt was committed
against a lower court, the penalty is a fine not exceeding
200 pesos or imprisonment not exceeding one (1) day, or
both(Sec. 1);

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c. If the contempt consists in the refusal or omission to do


an act which is yet within the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it.
2. A person adjudged in direct contempt may not appeal
therefrom. His remedy is a petition for certiorari or
prohibition (Rule 65) directed against the court which
adjudged him in direct contempt(Sec. 2). Pending the
resolution of the petition for certiorari or prohibition, the
execution of the judgment for direct contempt shall be
suspended. The suspension however shall take place only if
the person adjudged in contempt files a bond fixed by the
court which rendered the judgment. This bond is
conditioned upon his performance of the judgment should the
petition be decided against him.

What is the remedy against indirect contempt and its


penalty?
A:
1. The punishment for indirect contempt depends upon the
level of the court against which the act was committed;
(a) Where the act was committed against an RTC or a court
of equivalent or higher rank, he may be punished by a fine
not exceeding 30,000 pesos or imprisonment not exceeding
6 months, or both;
(b) Where the act was committed against a lower court, he
may be punished by a fine not exceeding 5,000 pesos or
imprisonment not exceeding one month, or both. Aside
from the applicable penalties, if the contempt consists in the
violation of a writ of injunction, TRO or status quo order,
he may also be ordered to make complete restitution to the
party injured by such violation of the property involved or
such amount as may be alleged and proved(Sec. 7);
(c) Where the act was committed against a person or entity
exercising quasi-judicial functions, the penalty imposed
shall depend upon the provisions of the law which
authorizes a penalty for contempt against such persons or
entities.
(2) The person adjudged in indirect contempt may appeal
from the judgment or final order of the court in the same
manner as in criminal cases. The appeal will not however
have the effect of suspending the judgment if the person
adjudged in contempt does not file a bond in an amount
fixed by the court from which the appeal is taken. This
bond is conditioned upon his performance of the judgment or
final order if the appeal is decided against (Sec. 11).
Quasi-judicial bodies that have the power to cite persons
for indirect contempt pursuant to Rule 71 of the Rules of
Court can only do so by initiating them in the proper RTC.
It is not within their jurisdiction and competence to decide
the indirect contempt cases.
Q: May a non-party be held for contempt?
A: No, unless he is guilty of conspiracy with any one of the
parties in violating the courts orders(DesaEnt., Inc. v. SEC,
G.R. No. L-45430, Sept. 30, 1982).
Q: Ray, through Atty. Velasco, filed a complaint for
quieting of title against Chiz. Chiz, however, interposed
the defense that the documents relied upon by Ray and

Atty. Velasco were forged and falsified. Finding that the


said documents were indeed forged and falsified, Judge
Victoria cited Ray and Atty. Velasco for direct contempt
and ordered them to serve 10 days of detention at the
Municipal Jail. Ray and Atty. Velasco filed a motion for
bail and a motion to lift the order of arrest. But they were
denied outright by Judge Victoria. Is Judge Victoria
correct?
A: No. Direct contempt is a contumacious act done facie
curiae and may be punished summarily without hearing.
Indirect or constructive contempt, in turn, is one perpetrated
outside of the sitting of the court.
Here the use of falsified and forged documents is a
contumacious act. However, it constitutes indirect contempt
not direct contempt. The imputed use of a falsified
document, more so where the falsity of the document is not
apparent on its face, merely constitutes indirect contempt,
and as such is subject to such defenses as the accused may
raise in the proper proceedings. Thus, following Sec. 3,
Rule 71, a contender may be punished only after a charge
in writing has been filed, and an opportunity has been
given to the accused to be heard by himself and counsel.
Moreover, settled is the rule that a contempt proceeding is
not a civil action, but a separate proceeding of a criminal
nature in which the court exercises limited jurisdiction.
Thus, the modes of procedure and the rules of evidence in
contempt proceedings are assimilated as far as practicable
to those adapted to criminal prosecutions. Thus, the judge
erred in declaring summarily that Ray and Atty. Velasco are
guilty of direct contempt and ordering their incarceration. He
should have conducted a hearing with notice to Ray and Atty.
Velasco (Judge Espanol v. Formoso, G.R. No. 150949, June
21, 2007).

CONTEMPT AGAINST QUASI-JUDICIAL BODIES


Q: What is the rule on contempt against quasi-judicial
bodies?
A: The rules on contempt apply to contempt committed
against persons or entities exercising quasi-judicial
functions or in case there are rules for contempt adopted
for such bodies or entities pursuant to law, Rule 71 shall
apply suppletorily. Quasi-judicial bodies that have the power
to cite persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within their
jurisdiction and competence to decide the indirect
contempt cases. The RTC of the place where contempt has
been committed shall have jurisdiction over the charges
for indirect contempt that may be filed(Sec. 12).
If one was found guilty of contempt, it is possible other laws
or Rules may be applicable. For example, a lawyer may be
sanctioned under the Code of Professional Ethics. Other laws
may also apply in certain instances although contender was
not found guilty of contempt.
Relate this to the modification under Rule 65. A lawyer
may be cited for indirect contempt, even if there is no showcause order, at the discretion of the court. In Rule 65, under
the principle of res ipsa loquitur, the lawyer who files a

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patently unmeritorious pleading under Rule 65 can be


cited in indirect contempt, even without a show cause
order.

In execution of judgment, Contempt is not a usual recourse to


execute a judgment. But, contempt is the only recourse
whenever there is a writ or process (like a writ of
mandamus or prohibition) that is issued by the court that
is subsequently disobeyed by the contender/respondent.
We do not use contempt in Rule 39 when it comes to
execution of judgments for money or delivery of property. But
when the judgment is about issues in special civil actions, the
only remedy will be a citation for contempt.

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Q: When shall imprisonment be imposed?


A: When the contempt consists in the refusal or omission
to do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it. Indefinite incarceration
may be resorted to where the attendant circumstances are
such that the non-compliance with the court order is an
utter disregard of the authority of the court which has then
no other recourse but to use its coercive power. When a person
or party is legally and validly required by a court to appear
before it for a certain purpose, and when that requirement is
disobeyed, the only remedy left for the court is to use force to
bring the person or party before it.
Note: The punishment is imposed for the benefit of a
complainant or a party to a suit who has been injured aside
from the need to compel performance of the orders or decrees
of the court, which the contemnor refuses to obey although
able to do so. In effect, it is within the power of the person
adjudged guilty of contempt to set himself free.

Ordinary Action
To protect or
enforce a right or
prevent or redress
a wrong
Involve 2 or more
parties plaintiff
and defendant
Governed
by
ordinary
rules,
supplemented by
special rules
Initiated by a
complaint,
and
parties
respond
through an answer
Heard by courts of
general
jurisdiction
Issues or disputes
are stated in the
pleadings of the
parties
Adversarial
Based on a cause
of action

Special
Proceeding
Involves
the
establishment of a
right, status, or
fact
May involve only
one party only
petitioner
Governed
by
special
rules,
supplemented by
ordinary rules
Initiated by a
petition and parties
respond through
an opposition

Special
Civil
Action
Civil
Action
subject to specific
rules.
Involves two or
more parties
Ordinary
rules
apply
primarily
but subject to
specific rules
Some are initiated
by
complaint,
while some are
initiated
by
petition

Heard by courts of
limited jurisdiction
Issues
are
determined by law

Not adversarial
Not based on a
cause of action
(except
habeas
Corpus)

Some special civil


action have no
cause of action

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