INTRODUCTION
I. Superior vs. Inferior / Lower Courts
The study of Civil Procedure involves the study on
jurisdiction of the SC, CA, RTC, MTC and other special courts.
This is just like in Criminal Procedure. The law which deals with
the jurisdiction of regular courts is the Judiciary Law (BP 129, as
amended). But only the concentration is on civil cases. The
1997 Rules of Civil Procedure includes: Civil Actions (Rules 1-
56), Provisional Remedies (Rules 57-61), and Special Civil
Actions (Rules 62-71).
When the Judiciary Law took effect in the early 80s,
automatically, the 1964 Rules was affected by the new
Judiciary Law. In this instance, the SC came out with the
Interim Rules and Guidelines. This was promulgated to
harmonize the 1964 Rules and BP 129. Many of the provisions
of the Interim Rules are now incorporated in the 1997 Rules of
Civil Procedure. But some provisions remain in the Interim
Rules. So, we still have to make reference to the Interim Rules
once in a while. The last topic on rules on procedure is the
Revised Rules on Civil Procedure which applies only to MTCs.
Materials in this course:
1997 Rules of Civil Procedure (July
1, 1997)
Judiciary Law (BP 129)
Interim Rules and Guidelines
Revised Rules on Summary
Procedure
The Court and the Judge
The court is an entity or body vested with a portion of
the judicial power. It has no physical existence like a
corporation. It is not a human being nor a place nor a
courtroom. Why “a portion of the judicial power” only? This
goes back to your study of the constitution where we all know
that the government has three main branches: the executive,
legislative and judiciary. In the Constitution, there is an article
there on the Judiciary:
The judicial power shall be vested in one Supreme
Court and in such lower courts as may be created by
law. (Sec. 1, Art. VIII, 1997 Constitution)
So judicial power is vested not only in the SC but also
in such lower courts. Why? Because the SC is not the only
court in the country. The SC cannot handle all the cases in the
Philippines all at the same time. That’s impossible. That is why
judicial power is divided into many courts - there is a division of
labor.
Is there a difference between the court and the
judge? Yes. A court is an entity, body or tribunal vested with a
portion of judicial power. A judge is the person or officer who
presides over the courts. A court cannot exercise its power by
itself because it has no physical existence. It has to exercise its
power through human beings called judges. There may be a
court without a judge and vice-versa. Courts are created by
law. There existence is continuous. Judges are appointed but
they cannot be there forever. They may die, retire, resign or
be removed from office during which there may be a court
without anyone to preside over it.
Classification of Philippine Courts
1. Superior vs. Inferior/Lower Courts
2. Original vs. Appellate Courts
3. Criminal vs. Civil Courts
4. Court of Law vs. Court of Equity
5. Constitutional vs. Statutory Courts
Superior Courts - (aka Courts of General Jurisdiction) are courts
which take cognizance of all kinds of cases and possess
supervisory authority over lower courts.
Inferior/ Lower Courts - (aka Courts of Special or Limited
Jurisdiction) are those which take cognizance of certain
specified cases only.
So, a superior court is one who is superior or its
authority is varied. It handles practically all kinds of cases, from
family to criminal, labor, transportation, taxation - lahat. The
same thing with the CA. Even the RTCs are classified as
superior courts. The best example of an inferior or lower court
is the MTC. Their powers are limited, confined only to a few
types of specified cases. In criminal cases, for instance, only
when the penalty is not exceeding 6 years. If higher RTC na.
Superior courts exercise power of supervision over lower courts.
How many superior courts are there in the
Philippines? From the constitutional viewpoint, there is only one
superior court, the Supreme Court. All others are lower courts.
But from other viewpoints, the CA is also a superior court.
While it is lower than the SC, it is also higher than the RTC and it
exercises supervisory authority over the RTC. So in that sense,
the CA is also a superior court. The RTC may be a lower court
because it is under the supervision of the courts higher than it
is. But under the Judiciary Law, it also exercises supervisory
functions over the MTC. So in that case, it is also a superior
court. The MTC cannot exercise supervision over any other
court. Barangay courts are not courts. Barangay captains are
not judges.
II. Original vs.. Appellate Courts
Original Courts - those where a case is commenced
Appellate Courts - those where a case is reviewed.
So when a case is filed before a court for the first time
and that court will hear and decide it, that is an original court.
But when a case is filed there and that court, after deciding, its
decision can be appealed or elevated to another court and
the second court has the power to review and reverse the
decision of the first court, then we call the second court an
appellate court.
There are certain cases which you can file in the SC for the first
time. So it is not purely an appellate court but also an original
court. While basically the CA is an appellate court, you will
see that there are cases which you can commence for the first
time before the CA. So in effect it is not only an appellate
court but also an original court. Under the Judiciary Law, there
are cases which are tried by the MTC which are appealable
with the RTC. So while the RTC is basically an original court,
part of its power is appellate. The MTC is purely an original
court. It has no power to review. For whose decision will it
review if it is the lowest court in the hierarchy?
III. Criminal vs.. Civil Courts
Criminal Courts- those which decide purely criminal cases
Civil Courts - those which decides only civil cases
Based on the structure of the judiciary, there is no
such thing as 100% criminal court or 100% civil court. Courts
are both civil and criminal courts. Unlike before in 1980 (before
BP 129) when there were some existing special courts at that
time like the Juvenile and Domestic Relations Court. The
Circuit Criminal Court is a good example of purely a criminal
court. But all these courts were abolished by BP 129 and all
their powers were transferred to the present RTC.
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IV. Court of Law vs.. Court of Equity
Courts of Law - tribunals duly administering the laws of the
land. It decides cases by applying the law.
Courts of Equity - tribunals proceeding according to the
precepts of equity and are sometimes called courts of
conscience. It decides cases by applying the principles of
justice, fairness and fair play.
How are Philippine courts classified? Our courts
apply both law and equity. As a matter of fact, sometimes I
cannot distinguish whether it applies purely the law or the
principle of equity because most principles of equity are also
imbedded in the Civil Code. A good example is the principle
of estoppel which is actually an equitable principle. But it is
likewise stated in black and white. Also the principle of solutio
indebiti (no person has the right to enrich himself at the
expense of another.) That’s a principle of equity but it is also in
the Civil Code. Laches, the half-brother of prescription (if you
delay a certain right then you must have no right). That is
more of equity, rather than of law. So, in the Philippines, it is
difficult to classify one as that of law or that of equity. As what
the SC said in one of its cases, “Equity follows the law”. In
other words, they go hand in hand. In the case of:
ALONZO vs. IAC
150 SCRA 259
The SC started the decision with
the following sentence: “The question is
sometimes asked in serious inquiry or curious
conjecture, whether we are a court of law
or a court of justice. Do we apply the law
even if it is unjust or do we administer justice
even if it is against the law? Thus queried,
we do not equivocate. The answer is that
we do neither because we are a court both
of law and justice. We apply the law with
justice for that is our mission and purpose in
the scheme of our Republic.
A Supreme Court Justice once told
me, “The common mistake of lawyers is that
they concentrate on the law. They
bombard the SC with laws. We know more
laws than you do. You concentrate on
what is fair and just because when we
deliberate and we believe that equity leans
in your favor in the trial, we will decide in
your favor. And even if there is no law
which applies, we will look for it. If there is
none, we will make it for you.”
V. Constitutional vs. Statutory Courts
Constitutional Courts - those created by the Constitution itself
Statutory Courts - courts created by the legislature.
How many constitutional courts do we have? There is
only one constitutional court, the SC. There is a common
impression that the Sandiganbayan is a constitutional court
because there is a version in the 1973 Constitution which says,
“There should be created a Sandiganbayan”. But as
interpreted by the SC, the Sandiganbayan is not created by
the Constitution itself but by a Marcos decree, PD 1606. It was
Marcos as the President who created it as ordered by the 1973
Constitution. In other words, the 1973 Constitution ordered its
creation, but it was not directly created. So in effect, there is
only one constitutional court. Congress can abolish the courts
anytime because the power to create carries with it the power
to abolish. But Congress definitely has no power to abolish the
SC because it was created by the Constitution. If you want to
abolish, it there must be a convention ratified by the people.
Inherent Powers of the Court
What are the inherent powers of the court? The
answer is found in Rule 135 Rules of Court, Sec. 5 of the 1964
Revised Rules of Court:
Sec. 5. Inherent Powers of the Court -
Every court shall have the power:
1. To preserve and enforce order in
its immediate presence;
2. To enforce order in proceedings
before it or before a person or persons
empowered to conduct a judicial
investigation under its authority;
3. To compel obedience to its
judgments, orders and processes, and
to the lawful orders of a judge out of
court, in a case pending therein;
4. To control in furtherance of justice
the conduct of its ministerial officers,
and of all other persons in any manner
connected with a case before it, in
every manner appertaining thereto;
5. To compel the attendance of
persons to testify in a case pending
therein;
6. To administer or caused to be
administered oaths in a case pending
therein, and in all other case where it
may be necessary in the exercise of its
powers;
7. To amend and control its process
and orders so as to make them
conformable to law and justice; and
8. To authorize a copy of a lost or
destroyed pleading or other paper to
be filed and used instead of the
original, and to restore, and supply
deficiencies in its records and
proceedings.
Now take note that these are inherent powers.
Meaning, every court must necessarily have these powers. Try
to remember as many as you can. Let’s go further to Sec. 6 of
the Interim Rules:
Sec. 6. Means to carry jurisdiction into
effect - When by law jurisdiction is conferred
on a court or judicial officer, all auxiliary
writs, processes and other means necessary
to carry it into effect may be employed by
such court or officer; and if the procedure to
be followed in the exercise of such
jurisdiction is not specifically pointed out by
law or by these Rules, any suitable process
or mode of proceeding may be adopted
which appears conformable to the spirit of
said law or Rules.
Actually, this is a continuation of the previous section.
If the court has the power to decide, it has automatically the
power to carry into effect its decision. When the law is silent as
to how the decision is to be enforced, every judge has the
power to invent his own procedure. Because it is crazy to say
that because he cannot find the procedure he cannot
enforce the judgment. Magiging impotent ka.
Suppose a court in Davao issues a search warrant,
can that be used to search a place in Cotabato City? Sec. 3
of the Interim Rules & Guidelines provides:
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Sec. 3. Writs and Processes. -
Writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction issued by
RTC may be enforced in any part of the region.
All other processes whether issued by the RTC or
MetTC, MTC, and MTC may be served anywhere in
the Philippines, and the last three cases, without a
certification by the judge of the RTC.
So in other words, there are distinctions. A person is
detained in General Santos City but the family is here. So the
family filed a petition for habeas corpus before a Davao
Court. The RTC of Davao issued the writ of habeas corpus and
sought its enforcement in General Santos City. Can it be
done? Yes. The law says anywhere in the region. Davao and
GSC belong to the same region.
Now suppose the person is being detained unlawfully
in Kidapawan and the Davao del Sur RTC, only just a few
kilometers away, issued the writ of habeas corpus. Can it be
enforced? No, because obviously they belong to different
regions.
The RTC of Davao or MTC of Davao issued a warrant
of arrest. The accused fled to Baguio City. Can the warrant
be used and enforced in Baguio City? Yes, because the law
says all other writs and processes.
End of Introduction
JURISDICTION
The subject matter we’re going to discuss is the
concept of JURISDICTION. Of course, you’ve already met the
concept of jurisdiction in criminal cases. The word jurisdiction is
actually derived from 2 Latin words juris and dico. In English,
juris means law. Dico is to say something or to speak. So,
literally, jurisdiction means “to speak by the law”. What is the
significance of “to speak by the law”? Even in olden times,
when the representative of the king or the sovereign will try to
arrest somebody or will try to enter your house, they’d say,
“Open up in the name of the law”. They will always invoke the
law. In the name of the law. What is the effect? When you
speak in the name of the law, or will do it in the name of the
law, it connotes authority or power. How can you be wrong if
you are doing it in the name of the law? So more or less,
jurisdiction simply means authority or power. That is the whole
concept of jurisdiction.
So how do we define jurisdiction in general? It can
be defined simply as the authority to hear and determine a
case or the right to act in a case. So, if you say that the court
has no jurisdiction over a case, it cannot try the case. It
cannot render any decision in that case because it has no
jurisdiction. What happens if a court without jurisdiction tries a
case and renders judgment in the case? Everything is null and
void. The judgment is automatically null and void.
Let’s go to criminal cases. Can you file an
information for murder before the MTC? Or can you file an
information for slight physical injury before the RTC? There is
something wrong here. In MTC, cases with the penalty of
imprisonment of 6 years or less or not exceeding 6 years. So
the slight physical injury case is filed against you in the RTC.
What will you do? If I am the lawyer of the accused why
would I allow my client to be arraigned there and be tried
when everything is null and void? Kapoy-kapoy ka lang. So I
will file a motion to quash under Rule 117, remember? On that
ground that court has no jurisdiction over the subject matter of
the case or the nature of the offense charged. The same thing
in civil cases. If you file a civil case in a court with no
jurisdiction, then it can be dismissed for lack of authority.
Jurisdiction vs. Exercise of Jurisdiction
Now there were bar exams in the past where the
examiner asked this kind of question: Distinguish jurisdiction
from exercise of jurisdiction.
Jurisdiction is itself the authority or the power of the
court to act on the case. If the court has jurisdiction, it can
act. So the court will have to go through some motions or
some proceedings. In criminal cases for example, we will
schedule the arraignment, then we will schedule the case for
trial. Then after the trial, the court will render a decision and
then there will be a promulgation. Then assuming there is no
appeal, then the court will now order you committed to jail to
serve your sentence. Marami pang mangyayari. Now, what
do you call these things which will follow? The court has
jurisdiction. After that this is what the court will do. It will issue
orders, render judgment. All these things that the court does in
the course of the trial is what you call the exercise of
jurisdiction. Because its useless to talk of jurisdiction if the court
will not do anything after that. The court must do something.
So, everything, even the decision is simply the procedure or
the exercise of its jurisdiction.
Now, what is important in distinguishing jurisdiction
from the exercise of jurisdiction? The court from the very start
could commit a mistake. Or it could commit mistakes along
the way while the case is going on. An example is where the
court decides to try the case when actually it has no
jurisdiction. A case of homicide for instance. The criminal
case was filed in the MTC. The accused files a motion to
quash because the MTC has no jurisdiction over the case of
homicide. Eh, yung judge, iba ang libro. “No I have,” he
insists. So the court denied the motion to quash. Meaning, it
has decided to assume jurisdiction. So from the very start mali
na. Now, what do you call that? Where the court without
authority assumes jurisdiction over a case, that is an error of
jurisdiction.
HERRERА VS. BАRRETO
25 Phil. 245
Held: The authority to decide а case, not
the decision rendered, is what makes up
jurisdiction. It does not depend upon the
regularity of the exercise of that power or
upon the righteousness of the decision
made. Where there is jurisdiction over the
person аnd the subject mаtter, the
resolution of аll other questions аrising in the
cаse is but аn exercise of jurisdiction.
Error of Judgment vs. Error of Jurisdiction
But suppose the case for homicide or murder is filed
in the RTC. So walang mali. But in the course of the trial, the
court misinterpreted the provisions of the Revised Penal Code.
Meaning, misapplication or misinterpretation of the Rules on
Evidence ba. The accused is convicted. You are guilty. But
actually sa tingin mo mali man ito ba. Under the law this
element was not considered or this element was considered as
present but actually it is not. Do you say that the decision of
the judge is null and void? No. The judgment is valid. Kaya
lang mali. So you do not say that the court committed an
error of jurisdiction. It committed an error in the exercise of its
jurisdiction and that is called an error of judgment.
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 How do you distinguish an error of jurisdiction from an
error of judgment? If the court has no jurisdiction from the very
start and it assumes jurisdiction over the case, the court has
committed an error of jurisdiction. But when the court has
jurisdiction and in the exercise of such jurisdiction the court
committed errors, these errors are called errors of judgment.
But you may ask this: If it is an error of judgment or an error of
jurisdiction, it is still an error just the same. Can it be corrected
by a higher court? Of course. I can always raise that issue
before a higher court. However, as we shall see later, you will
see that the procedure or the remedy for correcting this error is
not the same as the procedure or remedy for correcting the
other error. Kung ito ang error, ito ang remedy. And when a
lawyer commits a mistake, patay ang kliyente. Because the
appeal or petition might be dismissed simply because the
court will say that you availed of the wrong procedure. Dapat
ganito. That is how tricky the procedure is.
Now take note that jurisdiction is vested in the court,
not in the judge. For example, there is the RTC of Davao City.
There are 11 or 12 judges presiding over these courts. Ang
tawag niyan branches. Now if there are 11 RTC branches in
Davao City, you mean to tell me there are 11 RTCs in Davao
City? No. There is only one RTC but composed of 11 branches.
Actually it is only one court. That is another distinction which I
made last night. Do not confuse the court from the judge.
There is only one court but composed of 11 judges or
branches.
Now jurisdiction is vested in the court, not in the
judge. Is it possible for a case to be assigned originally to one
branch or judge and then later on nalipat sa iba? That
happens several times. Na-raffle. Then an order earlier issued
by Judge A nalipat kay Judge B. The other party will file a
motion for reconsideration and then Judge B will recall the
order issued earlier by Judge A. Does Judge B have the power
to do that where the issue was already issued by Judge A?
Yes, because it is still the same court acting on the case. It is
the same court changing its order. It is not one judge
changing the order of another judge. Jurisdiction is vested in
the court not in the person of the judge. Remember that.
LUMPАY VS. MOSCOSO
Mаy 29, 1959
Held: Jurisdiction is vested with the Court
аnd not in the Judge. So when а complаint
or informаtion is filed before one brаnch or
judge , jurisdiction does not аttаch to sаid
brаnch or judge аlone, to the exclusion of
the others. Triаl mаy be hаd or proceedings
mаy continue by аnd before аnother
brаnch or judge.
TYPES OF JURISDICTION
 General vs. Limited/Special Jurisdiction
 Original vs. Appellate Jurisdiction
 Exclusive vs. Concurrent/Coordinate Jurisdiction
I. General vs. Limited/Special Jurisdiction
General - the authority of a court to hear and determine all
types of actions and suits whether criminal, civil, admiralty,
personal action, or real action. Masyadong broad ba.
Practically all types of cases and all types of civil actions.
Limited/Special - the authority of a court to hear and
determine particular cases only. So the court is authorized to
hear certain and specified cases. Limitado ba ang power
niya.
When we go over the Judiciary Act and study the
jurisdiction of the different courts in civil cases, you will see that
jurisdiction of some courts like the RTC is masyadong far-
ranging. It covers many things. Whereas the jurisdiction of the
MTC is masyadong makipot. Very narrow because it has
limited or special jurisdiction.
II. Original vs. Appellate Jurisdiction
Original - the power of the court to take cognizance of the
case at its inception or commencement.
Appellate - the power vested in the superior court to review
and revise the judicial action of a lower court.
For example, I will file a civil case in the RTC and that court will
take cognizance and try it. You are invoking the original
jurisdiction of the RTC. After trial, you lost the case so you
decided to appeal the decision of the RTC to the CA. So the
case is now there. It is now in the CA and you are invoking its
appellate jurisdiction.
III. Exclusive vs. Concurrent/Coordinate Jurisdiction
Exclusive - it is jurisdiction possessed by a court to the exclusion
of all others.
Concurrent/Coordinate - possessed by a court together with
another court or other courts over the same subject matter.
Exclusive, meaning walang kasama. It is jurisdiction
possessed by a court to the exclusion of all others. Meaning
you can file the case in that court and only in that court. On
the other hand, concurrent jurisdiction is that possessed by a
court together with another court or other courts over the
same subject matter. Example, I want to file a case or petition
in court and then I look at the law and the law says I can file it
in this court or in another court. So I have the right to choose
where to file it. So if I file it in court no. 2, it now assumes
jurisdiction. Out na ang no. 1. That is what you call
concurrent jurisdiction. The court obtaining jurisdiction first
retaining it to the exclusion of the others. But the choice of
court is lodged in those persons duly authorized to file the
action.
Last night, we were classifying courts and you
learned that the SC pala merong original jurisdiction. Ito
palang CA has also original jurisdiction. RTC is of course more
of an original court than an appellate court. Are there certain
types of cases or petitions where I can file it directly with the
SC, or file with the CA, or with the RTC? YES. Makapamili ka.
You file it with the SC, pwede. Gusto mo sa CA pwede rin.
RTC pwede rin. In effect these are the instances where the SC,
CA and RTC exercise concurrent jurisdiction. A perfect
example is habeas corpus. When a somebody is illegally
deprived of his liberty, his family can file a petition for habeas
corpus which can be instituted directly before the SC or in the
CA or even in the RTC. This is a situation where the SC, CA and
RTC share concurrent jurisdiction.
ELEMENTS OF JURISDICTION
In your study of jurisdiction in criminal procedure, we
learned the elements of jurisdiction in criminal cases. Absent
these elements, the proceedings will be illegal. The elements
of jurisdiction in criminal cases are: jurisdiction over the subject
matter, jurisdiction over the person of the accused and
territorial jurisdiction.
In civil cases, meron din yang counterpart. The
elements of jurisdiction in civil cases are:
1. jurisdiction over the subject matter
2. jurisdiction over the person of the parties
3. jurisdiction over the res, and
4. jurisdiction over the issues.
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 What happens if in a particular case one of the
elements is missing? Then the proceedings becomes
questionable. Void. The judgment is not binding. That is the
effect of lack of jurisdiction. The proceeding is tainted with
irregularity, illegality. Let’s go over them one by one.
1. First Element - Jurisdiction Over the Subject Matter
Jurisdiction over the subject matter is determined by
the allegations of the complaint. It does not depend upon the
pleas or defenses of the defendant in his answer or motion to
dismiss. (Cаrdenаs vs. Cаmus, July 30, 1962; Edwаrd Nell Co.
vs. Cubаcub, June 23, 1965; Serrаno vs. Muñoz Motors,
November 27, 1967)

2. Second Element - Jurisdiction Over the Person of the Parties

Jurisdiction over the subject mаtter is the power of
the court to hear and determine cases of the general class to
which the proceedings in question belong. (Bаnco Espаñol- Normally, when we say jurisdiction over the parties,
Filipino vs. Pаlаncа, 37 Phil. 291). In other words it is the we are referring to the plaintiff, the one suing, and the
jurisdiction over the Nаture of the Action. In Criminal defendant, the one being sued. Jurisdiction over the person
Procedure, the subject matter may be grave felony, less grave of the parties is the power of the court to render judgment
felony, etc. In civil cases, an action for legal separation, which will bind the parties of the case. (Bаnco Espаñol-Filipino
annulment of marriage, declaration of nullity of marriage, etc. vs. Pаlаncа, 37 Phil. 291).How does the court acquire
That is the subject matter. Where will you file that? If you file it jurisdiction over the defendant in a criminal case? Either you
in the wrong court, that will be dismissed for lack of jurisdiction. are arrested or you surrender. In civil cases, the court acquires
Another example on the law on Property: An action for jurisdiction over the person of the defendant through the
recovery or ownership of a piece of land (accion service of legal process known as service or summons done by
reivindicatoria). That is the subject matter. Or an action to the sheriff. This is the counterpart of the arrest in criminal cases.
recover possession of a parcel of land (accion publiciana). Voluntary appearance by the defendant without service of
summons in civil cases is the counterpart of voluntary surrender
It is important to note that jurisdiction over the subject in criminal cases.
matter is conferred by law alone. Example: A creditor files a
complaint against a debtor to collect P20T. According to the Take note that while jurisdiction over the subject
law, that should be filed in the MTC. But the creditor and matter is conferred by law jurisdiction over the person of the
debtor entered into an agreement that they will file the case defendant can be conferred by consent, silence or failure of
in the RTC. So they filed it in the RTC. Has the RTC acquired the defendant to object.
jurisdiction over the subject matter because the parties
agreed? No. The RTC will still dismiss it. The principle is that
jurisdiction over the subject matter is conferred by law, not by Jurisdiction over the person of the plаintiff is аcquired from the
the agreement of the parties. moment he files his complаint. Upon filing his complаint in
court, he is аutomаticаlly within the jurisdiction of the court.
Another example. The plaintiff filed a case against (MRR Co. vs. Atty. Gen., 20 Phil. 523)
defendant to collect an obligation of P20T. Under the law, it
should be filed in the MTC. But the plaintiff filed it in the RTC.
Under the law, the defendant should file a motion to dismiss Jurisdiction over the person of the defendаnt is
because the court has no jurisdiction. The defendant, аcquired:
however, did not question it. He agreed to it. Does the court 1. upon service on him of coercive
acquire jurisdiction because of lack of objection on the part of process in the mаnner provided by lаw
the defendant? Or because of acquiescence or silence or (service of summons) ; or
consent by the defendant? No. The court still has to dismiss 2. by his voluntаry submission to the
the case. Again, jurisdiction over the subject matter is jurisdiction of the court (wаiver,
conferred by law. It is for the law to determine. consent or lаck of objection by the
defendаnt). MRR Co. vs. Atty. Gen., 20
MRR CO. VS. ATTY. GEN. Phil. 523
20 Phil. 523
Jurisdiction over the subject mаtter is
conferred by law is never аcquired by CRIMINAL CIVIL
consent or submission of the pаrties or by PROCEDURE PROCEDURE
their lаches. This is а mаtter of legislаtive
enаctment which only the legislаture cаn Coercive process Enforcement of Service of
chаnge. provided by lаw (in Service of Summons
order for the court to Wаrrаnt of Arrest
Thus, generally, Jurisdiction cannot be acquired: аcquire jurisdiction
1. by agreement of the parties, over the person)
2. through а waiver, or
3. through failure to object (by silence of the
parties). JURISDICTION OVER THE JURISDICTION OVER THE
Exception: Estoppel by Laches PERSON OF THE SUBJECT MATTER
DEFENDANT
TIJАM vs. SIBONGHАNOY
April 15, 1968 Mаy be cured by wаiver, Cаnnot be cured by
consent or lаck of wаiver, consent or lаck of
Estoppel by Laches – is when the issue of objection by the objection by the
jurisdiction was not determined for an defendаnt defendаnt
unreasonable length of time.

However, the RULE is: The issue of jurisdiction can be raised at 3. Third Element - Jurisdiction Over the Res
any stage of the proceeding even for the first time on appeal.
Even of the parties would not raise it, the court motu propio “res” – is the Lаtin word for “thing”
has the authority to dismiss it.

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 Jurisdiction over the res means jurisdiction over the
thing in dispute. It is obtained by a seizure under legal process
of the court whereby it is held to abide such order. Seizure
need not be physical. An example is land. Tatakan mo ang
titulo sa Register of Deeds.
Now what is the importance of jurisdiction over the
res in civil cases? There are some cases where the court
cannot acquire jurisdiction over the person of the defendant.
Suppose, the defendant goes abroad and resides there
permanently. I will file a case for recovery of ownership or
possession of that land. But he is now abroad. Can I file a
case against him? There is no way for the court to acquire
jurisdiction over his person. But the subject matter, the subject
of the litigation, the res, is just right next door. It is within the
Philippines. So with that, you can file the case. But the court
cannot acquire jurisdiction over his person? Never mind! Ang
kapalit niyan - jurisdiction over the res and you cannot say that
the decision is useless. Because if he loses the case, then you
get the property. The property is now yours. That is the
importance of the third element. It is sometimes the substitute.
It takes the place of jurisdiction over the person of the
defendant where it is impossible to acquire jurisdiction over his
person.
Another example, Weng is an illegitimate child. She
wants to be acknowledged by her father. So, she files a case
against her father for compulsory recognition. What is the res?
The res is the status of the child.
4. Fourth Element - Jurisdiction over the issues
What do you mean by jurisdiction over the issues?
Jurisdiction over the issues simply means the authority of the
court to try and decide the issues raised in the pleadings of the
parties. (Reyes vs. Diаz, 73 Phil . 484)
Now, you come to wonder: What do you mean by
pleadings? The study of pleadings is governed by Rule 6 of the
Rules of Court. Pleadings are simply the documents which the
parties file in court in connection with their case because
each party has to give his position. For example, I will sue you
to collect an unpaid loan. (Section 1). What will I say? What is
the story that I will narrate? That you borrowed from me on this
date. This is the amount. And then the account already
matured. I asked you to pay. You refused to pay. So, I am
asking the court that judgment be made ordering you to pay
me your unpaid loan. That is what I will file in court. That is
known as the complaint. That is a pleading.
Ikaw naman, you received a copy of the complaint.
Under the law, you are obliged to also file a pleading known
as the Answer where you will state your defenses. So for
example, your defense is you have no more obligation
because you already paid it a long time ago. So you will say,
“I admit that I borrowed money from the plaintiff but it is not
true that I have not paid. I have already paid him a long time
ago. So the obligation is extinguished by payment.” Yun
naman ang pleading mo.
Now, based on the pleadings, the court will know
what we are quarreling about. Because the court will not
know what the quarrel is all about unless you state your
respective positions So based in that example, based on what
I 'm saying in my pleadings and based on what you are saying
in your pleadings, the court will say: Ah, the issue pala rito is
whether the obligation is still existing or it is already
extinguished by payment. Has the obligation been
extinguished by payment or not? That is the issue. So the
court will now try the case and render a decision based on
that issue. The obligation is not paid so bayaran mo. Or the
complaint is dismissed because the obligation is extinguished.
Suppose that is the problem. The issue raised is
whether the obligation is paid or not. Sabi ng decision: The
obligation of defendant has been extinguished by
condonation or remission of the debt. Saan kinuha ng court
yon? Even the parties have not raised that! The defendant is
not claiming that the obligation has been condoned. And
here comes a decision that the obligation has been
condoned already. So the issue of condonation has never
been raised by the party. So the court cannot rule on an issue
which was not even brought up by the parties in their
pleadings. The court never acquired jurisdiction over the issue
of condonation or remission of debt. Yan.. Yan ang tinatawag
na issue.
Jurisdiction over the issues vs. Jurisdiction over the subject
matter
How do you distinguish jurisdiction over the issue from
jurisdiction over the subject matter?
Jurisdiction over the subject matter means the power or
authority of the court to hear and decide a particular case,
whereas, jurisdiction over the issue is the power or authority of
the court to resolve the legal question involved in a case.
Jurisdiction over the subject matter is acquired by the court
upon the filing of the complaint, whereas, jurisdiction over the
issue is acquired by the court after the defendant has filed an
answer which joins the issues involved in a case.
So to illustrate that: I am the plaintiff, I will file a case
in court to collect an unpaid loan. From the moment I file the
case, the court has acquired jurisdiction over the subject
matter. Now, you are summoned. File ka naman ng sagot
mo. "Wala akong utang, bayad na." Then the court has now
acquired jurisdiction over the issue. One is acquired upon filing
of the complaint and the other one is acquired after the filing
of the answer by the defendant. So that is the last point in the
fundamentals of jurisdiction in civil cases.
HIERARCHY OF THE COURTS
a) Regular Courts
Supreme Court
Court of Appeals
Regional Trial
Court
Metropolitan Municipal Municipal
Triаl Triаl City Triаl
Municipal Circuit
Trial Court
Court Court Court
In order to understand the jurisdiction of the courts, we must
know the judicial structure of the country. Yung hierarchy ba
of the courts. Even in the study of Criminal Procedure, you've
already determined the hierarchy. We'll start from the highest
in descending order.
The highest court of the land is of course the Supreme
Court (SC). The Court of Appeals (CA) comes next. The next
level is the Regional Trial Court (RTC) which is scattered
throughout the country. At the bottom of the hierarchy, the
so-called inferior courts are the following: in Metro Manila and
the National Capital Region (NCR), they are called
Metropolitan Trial Courts (MetTC). In chartered cities outside
the Capital Region like Davao City and Cagayan, they are
called the Municipal Trial Courts in Cities (MTCC). In
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municipalities like Tagum and Digos, they are simply called
Municipal Trial Courts (MTC). But not every municipality has a
municipal trial court. Well, in capital towns okay because of
the population, the number of cases. But there are small
municipalities, yung mga 4th class where the population is very
small. The cases there are very, very few. So under the law, 2
to 3, 4 or even 5 municipalities will be considered as one and
this is called the Municipal Circuit Trial Court (MCTC). So these
are what we call regular courts.
b) Special Courts
There exist some courts not governed by the
Judiciary Law. These are called special courts. This is to give
you a complete picture of the judiciary system. And what are
these special courts which exist right now? The Court of Tax
Appeals (CTA) which was created by RA 1125. The function,
power, jurisdiction and authority of this court is studied in the
third year subject on Taxation.
Then, we have the famous Sandiganbayan created
by PD 1486 as amended. This was created way back in the
70s because the 1973 Constitution ordered the creation of
such court. So Pres. Marcos pursuant to his legislative power
issued PD 1606 and then amended again by PD 1861 and then
amended again 2-3 years ago by RA 7975 and again this year,
last February 5, 1997 amended again by RA 8249. Ito na yong
latest amendment.
And the third type of special court existing today and
considered part of the judiciary are the so-called Sharia District
Courts and the Sharia Circuit Courts which were created by PD
1083 otherwise known as the Code of Muslim Personal Laws.
More or less that is the structure of the Philippine Judiciary.
Alright. Last Sept. 1996, one of the questions in the
bar was: State the hierarchy of courts in the Philippines.
Meaning, give the hierarchy of the courts in the Philippines.
Ayan, o yung na-discuss natin so kung alam mo yan you get
full points. That was worth 3 points.
End of Jurisdiction
SUPREME COURT
Alright. We will now study the jurisdiction of the
regular courts starting off with the highest court in the land, the
Supreme Court. The SC, as we said, is the only constitutional
court in the Philippines therefore its jurisdiction must be found in
the constitution itself and that is true. I'm sure in the study of
Constitutional Law I where you studied Art. VIII (Judicial
Department) you've already met these provisions. Only you
brushed it aside. Now we are going to concentrate on them
as we are now dealing with the jurisdiction of the Supreme
Court. So what are these provisions?
JURISDICTION OF THE SUPREME COURT
A. Jurisdiction of the Supreme Court : Original
Jurisdiction
The main provision governing the jurisdiction of the
SC is found in Art. VIII, Sec. 5 because it tells us what are the
powers of the SC and I said that the SC is not only an
appellate court. It is also an original court and therefore it has
also its original jurisdiction. The original jurisdiction of the SC is
defined in Art. VIII, Sec. 5 par. 1.
The Supreme Court shall have the following powers:
Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus. (Art. VIII, Sec. 5, par. (1); 1987
Constitution)
Yes, these are the cases which fall within the original
jurisdiction of the SC: those affecting ambassadors, other
public ministers and consuls; petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.
Petitions for certiorari, prohibition, mandamus and
quo warranto are special civil actions which are governed by
Rules 65 and 66 of the Rules of Court which will be studied in
detail in the subjects of Provisional Remedies and Special Civil
Actions in third year. On the other hand, a petition for habeas
corpus is a special proceeding governed by Rule 102. That is a
remedy to relieve a person from illegal confinement. Like you
are just arrested and detained there. Wala namang kaso.
Your family wants to seek judicial help to secure your release.
So you will file a petition for habeas corpus. So a petition for
habeas corpus can be filed directly with the SC. Alright, that is
the original jurisdiction of the SC.
B. Jurisdiction of the Supreme Court :
Appellate Jurisdiction
Now how about its appellate jurisdiction? The
appellate jurisdiction is found in the same provision, par. (2).
Sec 5. The Supreme Court shаll hаve the following powers:
1. Xxx
2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
a. All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law presidential decree, proclamation,
order, institution, ordinance or regulation is in
question
b. All cases involving the legality of any tax,
impost assessment, or toll, or any penalty imposed in
relation thereto.
c. All cases in which the jurisdiction of any
lower court is in issue.
d. All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
e. All cases in which an error or question of law
is involved. Art. VIII, Sec. 5, par. (2); 1987 Constitution)
a. All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law presidential decree, proclamation,
order, institution, ordinance or regulation is in
question
Page 7 of 296
 Thus, in certаin cаses when the RTC declаres а lаw
unconstitutionаl, the sаme hаs to аppeаled directly to the SC.
The cаse need not pаss through the CA becаuse it is th SC
which hаs exclusive аppellаte jurisdiction.
b. All cases involving the legality of any tax,
impost assessment, or toll, or any penalty imposed in
relation thereto.
When the issue is the legаlity of tаx, impost, аssessment or toll,
аppeаl to the lower court’s decision shаll be mаde to the SC.
c. All cases in which the jurisdiction of any
lower court is in issue.
When the issue is purely jurisdiction; the аggrieved pаrty wаnts
to rаise thаt the court hаs no jurisdiction or аnother court
should try the cаse, the SC hаs the exclusive аppellаte
jurisdiction.
d. All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
This is more on Criminаl Procedure. Reаd People vs. Mаteo,
July 7, 2004. It wаs decided here thаt аppeаl of cаses where
the penаlty is reclusion perpetuа or life imprisonment shаll be
filed with the CA first. This аmended the rule thаt such cаses
must be filed directly to the SC.
e. All cases in which an error or question of law
is involved.
The rule here is thаt the issue must only be аn error or question
of lаw. If there is a mixed question of law and a question of
fact, appeal must be filed with the CA.
Question of Fact vs. Question of Law
And of course the most important there is (e), all
cases in which only an error or question of law is involved.
Because there are two types of error or question which are
normally raised by litigants on appeal. A question of law or a
question of fact. The best example of questions of law where
the issues are purely legal are classroom problems. Why? Di
ba in examinations, may problemang ganyan. Then the
question is who is right? A or B? Is A correct? Reason.
Gamitin mo ang law. But yung, what happened - given na.
Ito ang facts. Meaning, the facts are already given. Based on
these facts who is correct? Yun ang tinatawag na question of
law.
Pero if the facts are still malabo, that is not a question
of law. For example, Obligations and Contracts. Something
like this. A filed a case against B to collect an unpaid loan.
According to A, B borrowed money from him and it's already
overdue and he has not paid. Now B admits he borrowed
money from A but says he has already paid. Bayad na raw.
Now, and tanong ko sa exam: Who is telling the truth? My
golly, how can you answer the question who is telling the
truth? In other words, I have to hear them. Yun ang
tinatawag na question of fact. What happened pinag-
aawayan pa. When you go to SC in civil cases, you are not
there to ask the SC to determine who is telling the truth. You
are asking who is right under the law.
Now, suppose I will appeal a civil case where the
issue is a question of law and question of fact. Halo-halo ba.
Mixed questions of fact and law. Then if that is the situation,
you go to the CA. You do not go directly to the SC. Let the
CA decide on everything without prejudice later to your going
to the Supreme Court on question of law. But everything has
to pass the Court of Appeals. Because the law says ONLY a
question of law is involved. The same thing with a, b and c
where you go to the SC, the issue is purely on the
constitutionality, validity of any law or purely legality of a tax,
or purely issue of jurisdiction. But if the issue of constitutionality
of a law, legality of a tax or jurisdiction is mixed with a question
of fact, then go to the CA. That is the main provision dealing
with the jurisdiction of the CA.
C. Jurisdiction of the Supreme Court : Decisions
of Constitutional Commissions
However, there are other provisions in the constitution
mentioning the powers of the SC. One of them is Art. IX on
Constitutional Commissions. You remember what these
constitutional commissions are? The Commission on Election,
Commission on Audit and the Civil Service Commission. Let us
go over Sec. 7. par. (a) on Common Provisions:
Each Commission shall decide by a majority vote x x
x. Unless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be brought
to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof. (Art. IX, Sec. 7
par (a); 1987 Constitution)
You know very well that the COMELEC, COA and the
CSC act also as courts of justice. They have powers to decide.
Mga election cases, sa COMELEC man yan ba. Claims
against the government - COA. Or disallowance on
disbursement by government officers or removal from
government service - CSC. Now, according to Sec. 7, any
decision, order or ruling of these commissions may be brought
to the SC on certiorari, etc., etc. So you will see that the
decisions of the constitutional commissions are reviewable by
the SC. However, lately, Congress amended the Judiciary Law
particularly Sec. 9 on the jurisdiction of the CA by now making
decisions of the CSC no longer appealable to the SC directly
but appealable to the CA. So based on the present state of
the law, out of the three constitutional commissions, the only
ones whose decisions are appealable directly to the SC are
those of the COMELEC and the COA.
When that law was passed where the decisions of
the CSC are appealable to the CA, first I was stunned. I said
there is something queer here. Because the CSC is a
constitutional body. The CA is not. So why will a decision of a
constitutional body be reviewable by a non-constitutional
body? And I said parang it might violate the Constitution.
Under the Constitution, decisions of the constitutional
commissions are appealable to the SC. Does Congress have
the power to change that by making it appealable to the
CA? So I had to look at the provision again to find out whether
this is possible. But pwede naman pala. You look at the
opening clause unless otherwise provided by the constitution
or by law. Ayun. Meaning, the decisions are appealable to
the SC unless otherwise provided by law. The Constitution itself
gave Congress the power to change it. So there is no
problem.
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 D. Jurisdiction of the Supreme Court : F.
Presidential Electoral Tribunal
Now aside from these? Let's go to Sec. 4, Art. VII on
the Executive Department. If you will notice, Sec. 4 deals with
the manner of electing the President and Vice President.
We've been debating about this provision during the past few
months. PIRMA wants to change this. And then the
qualifications to serve as president and vice-president. Then
you look at the last paragraph:
The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may
promulgate its rules for the purpose. (Art. VII, Sec. 4, last par.;
1987 Constitution)
So, if there's an electoral protest for the President and
Vice-President, the matter is not to be decided by the
COMELEC but the SC sitting as a presidential electorate
tribunal. Yan. So all the disputes on elections, returns,
qualifications of the president and vice-president will be
decided by the SC as the sole judge. This provision was
applied or came to operation after the last election when
Miriam Defensor-Santiago filed an election protest against
Pres. Ramos. You know that, of course. It was dismissed last
year or early this year. The Presidential Electorate Tribunal said:
From the moment she filed her certificate of candidacy for
senator where she won and occupied her seat, that is in effect
an abandonment of her protest. That was how it was
resolved. Alright.
E. Jurisdiction of the Supreme Court : RE
Commander-in-Chief Clause
Another provision on the powers of the SC is Sec. 18
which is sometimes popularly called the Commander-in-Chief
clause of the president where the president is said to be the
commander in chief of the armed forces. In cases of
invasion/rebellion, the president has the power to declare
Martial Law or to suspend the privilege of the writ of habeas
corpus in cases of invasion or rebellion. Now, suppose you
believe that the President has no basis (because everybody is
allergic to what happened in 1972 when Marcos declared
martial law and nobody can question it). Wala namang
rebellion. Kalokohan yan. You are now questioning the
judgment of the commander in chief. You will ask: show me
the basis for the declaration. Can you question it now? You
look at par. (3) of Sec. 18:
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of
the privilege of the writ or extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
(Art. VII, Sec. 18 (3); 1987 Constitution)
So, the SC, in an appropriate proceeding filed by any
citizen review the sufficiency of the factual basis of the
proclamation of martial law. Meaning, the SC can inquire into
the basis on why martial law is declared. This provision has in
effect abandoned the rulings of the SC during the 1935
Constitution that the judiciary has no power. So, pwedeng
mag-inquire into the reason of the president under the
doctrine of separation of powers. The political question
doctrine, wala na yon because of this provision. So it is now
the power of the SC to determine whether the commander in
chief has the basis to declare martial law.
Jurisdiction of the Supreme Court : originаl
exclusive jurisdiction
The originаl exclusive jurisdiction of the Supreme Court refers to
the petition for the issuаnce of writs of certiorаri, prohibition,
аnd mаndаmus аs defined in Rule 65 аgаinst the Court of
Аppeаls, the COMELEC, the Comission on Аudit,
Sаndigаnbаyаn, Centrаl Boаrd of Аssessment Аppeаls, NLRC
or the Secretаry of Lаbor.
By virtue of the cаse of St. Mаrtin Funerаl Home vs.
NLRC (295 SCRА 470, September 16, 1998), the provision
relating to the power of the SC to issue the sаid writs wаs
аmended. The in this cаse SC held: Аll references in the
аmended Section 9 of BP 129 to suspend аppeаls from the
NLRC to the SC аre interpreted аnd hereby declаred to meаn
аnd refer to petitions for certiorаri under Rule 65.
Consequently, аll such petition should hence forth be initiаlly
filed in the CА in strict observаnce of the doctrine of the
hierаrchy of courts аs the аppropriаte forum for the relief
desired.
G. Jurisdiction of the Supreme Court :
concurrent originаl jurisdiction
The cаses where its originаl jurisdiction is concurrent with the
CА, аre petitions for issuаnce of writs of certiorаri, prohibition,
аnd mаndаmus аgаinst the SEC, CSC, the different boаrds,
tribunаls, or аgencies which replаced the old Public Service
Commission( e.g. LTFRB). Аlso, issuаnce of writ of certiorаri
аgаinst the RTC аnd other quаsi-judiciаl аgencies, courts,
instrumentаlities аnd commissions.
Concurrent with the RTC аre those аctions аffecting the
аmbаssаdors аnd other public ministers аnd consuls.
Concurrent with the CА аnd the RTC аre those involving
hаbeаs corpus,quo wаrrаnto, аnd writs of certiorаri,
prohibition, аnd mаndаmus аgаinst inferior courts аnd bodies.
For exаmple, а petition for mаndаmus аgаinst the MTC of
Dаvаo city cаn be filed with the SC, CА or RTC аlthough the
policy of the Supreme Court is thаt it should be filed with the
RTC bаsed on the heirаrchy of courts.
Powers of SC under Sec. 5, Congress cannot alter
Alright. Now aside from this, meron pa. Let's go back
to Art. VIII, Sec. 2:
The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts
but may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Sec. 5 hereof. (Art. VIII, Sec. 2; 1987
Constitution)
Yes. Congress has the power to say: Alright, this case
should be filed before the CA or RTC. Congress can even
remove some of its jurisdiction. The law can change eh
because as what we have said, jurisdiction over the subject
matter is conferred by law. However, Congress has NO power
to deprive the SC of its jurisdiction under Sec. 5. Meaning,
Congress has no power to change Sec. 5. Hindi pwedeng
bawasan ang powers ng SC under Sec. 5 by law.
Page 9 of 296
Appellate Jurisdiction of SC may be increased only with its
consent
Now, we will go to the opposite side of the coin. If
Congress cannot subtract on SC's jurisdiction, can it add to
SC's jurisdiction? Meaning, Congress will pass a law.
Dagdagan natin. Is that possible? Now let's go to Sec. 30, Art.
VI on Legislative Branch:
No law shall be passed increasing the appellate
jurisdiction of the Supreme Court without its advice and
concurrence. (Art. VI, Sec. 30; 1987 Constitution)
Meaning, yung appellate jurisdiction ng SC under
Sec. 5 hindi pwedeng bawasan. Dagdagan natin, pwede?
Pwede, pero kailangan payag ako. Yan. That's what the
constitution says. Congress may pass a law but it must get the
consent of the SC. Meaning kung gusto mong dagdagan ang
trabaho ko, I must agree to that. Yan. So, these are the
provisions in the Constitution which deal on the jurisdiction of
the SC.
End of the Jurisdiction of the SC
COURT OF APPEALS
So we will now go to the second highest court, the
Court of Appeals. The jurisdiction of the CA down is now
governed by BP 129 (Judiciary Reorganization Act of 1980)
although the operations of the courts were in 1983. There was
a three-year transition period. Now, question: Is the Judiciary
Law (BP 129) part of Remedial Law? Answer: Technically, no.
The Judiciary Law is not a law on procedure. It is substantive
law. Courts are created. Their powers are defined. That is not
procedure. That is substance. But because of the relationship
between the Judiciary Law and Remedial Law, the study of
the former is incorporated in the subject of the latter.
Although technically, the Constitution of the Philippines which
defines the jurisdiction of the SC and BP 129 are substantive
laws. Procedural law is Rules of Court. But because of the
kinship/relationship, the study of Judiciary is incorporated with
the study of Remedial Law.
Now, when the Old Batasan passed BP 129 in 1980
which decreed the abolition of all courts lower than the SC, all
these courts were abolished, courts lower than the SC, regular
and special except the CTA and Sandiganbayan which were
spared. All the rest, Juvenile and Domestic Relations, CFI, CA
and in lieu of that, other courts were created. The
constitutionality of BP 129 was challenged before the SC
because it violated the provision of the constitution which
guaranteed security of tenure. Remember that? A judge
cannot be removed without just cause. There is security of
tenure until he reaches the age of 70. So, in effect, young
mga judges pag-abolish ng courts, they became jobless. All of
them. There were new courts but there is no guarantee na i-
appoint ka. So that was challenged. In the 1982 case of DELA
LLANA vs. ALBA (112 S 294), the SC ruled that the law is valid
and constitutional. We will not discuss on what the SC said.
Just refer to the citation.
A Brief History of the CA
Now, before BP 129 took effect, the second highest
court was known as the CA, Court of Appeals also. And then
BP 129 abolished this court and in its place created another
court known as the Intermediate Appellate Court (IAC). So in
1983 that court took the place of the CA. After 3 years came
the EDSA revolution and Cory Aquino assumed power.
Pursuant to her revolutionary powers she had the power to
pass laws because the Batasan was also abolished. So she
became a one man legislator just like what happened during
the martial law rule. So she issued laws which she called
Executive Orders amending laws left and right. And one of
these laws which was amended was BP 129, Sec. 9 on the
jurisdiction of the IAC. She decreed that the court shall be
known as the Court of Appeals. Binalik yung original name.
Now all along, everybody believed at that time that the CA
which was mentioned in EO 33 was actually IAC, only re-
baptized or pinalitan ng pangalan until the SC came out with
a pronouncement in the 1992 case entitled:
Letter of Associate Justice Renato S. Puno
210 SCRA 589
In this case, the SC stated that the CA under EO 33 is
not the IAC which was just renamed. EO 33 actually abolished
the IAC and created another court known as the Court of
Appeals. That is why the SC in this 1992 decision said: The
present CA is a new entity different and distinct from the CA or
the IAC existing prior to EO 33 for it was created on the wake
of the massive organization launched by the revolutionary
government.
Last time, we discussed the CA. I gave you a brief
historical background of the present CA, its predecessor used
to be known as the CA also and then that court disappeared.
It was abolished by BP 129. In its place came another court
known before as the IAC but as explained by the SC even the
IAC was abolished by EO 33 of former Pres. Aquino pursuant to
her revolutionary powers. So what we have now is entirely a
new CA which was created by EO 33. That is the background
there.
JURISDICTION OF THE COURT OF APPEALS
Now, we will study the jurisdiction of the CA as
defined in Sec. 9 of BP 129. By the way, Sec. 9 has been
amended. Actually it has been amended twice. First in 1986
by EO 33 and again two years ago by RA 7902. That is the
latest law amending Sec. 9. RA 7902 is also known as an Act
Expanding the Jurisdiction of the CA. So, I hope your present
provision the version of Sec. 9 that you have incorporates
already the changes under RA 7902. So, let us read Sec. 9, first
paragraph only.
A. Jurisdiction of the Court of Аppeаls: Original
Jurisdiction
BP 129, Sec. 9. Jurisdiction - The Court of Appeals shall
exercise:
Original jurisdiction to issue writs of mandamus, prohibition,
certiorari, habeas corpus, and quo warranto, and auxiliary
writs or processes, whether or not in aid of its appellate
jurisdiction.
Does this provision sound familiar to you? Yes, under
the original jurisdiction of the SC. In fact, the language is
almost the same. Original jurisdiction to issue writs of
mandamus, prohibition, certiorari, habeas corpus, and quo
warranto. That’s part of the Constitution. Original jurisdiction
of the SC. Now, we are meeting the provision for the second
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time. Original jurisdiction of the CA to issue these types of writs.
So, if I would like to file, for example, a petition for habeas
corpus, where will I file it? If I file it in the SC, is it allowed? Yes,
because the Constitution says so. But suppose I will instead file
it in the CA, is it allowed? Yes, under Sec. 9, par. 1. So what is
the conclusion? The SC and CA exercise concurrent
jurisdiction. That’s a perfect example of concurrent jurisdiction
where the jurisdiction to entertain certain petitions belong to
two or more courts.
Forum Shopping
I will go to a specific situation. Therefore, if I’m a
clever lawyer, and I want to file this type of petition in order to
be sure that I will get what I want, I will prepare two petitions. I
will file one in the SC and the other one in the CA. Sigurista ba.
Madisgrasya sa isa, meron pang matira. Can I do that? I will
invoke two jurisdictions at the same time? What will happen to
me? Now, the consequence is found in Sec. 17 of the Interim
Rules. That’s why the Interim Rules is still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No
petition for certiorari, mandamus, prohibition, habeas corpus
or quo warranto may be filed in the IAC if another similar
petition has been filed or is still pending in the SC. Nor may
such petition be filed in the SC if a similar petition has been
filed or is still pending in the IAC, unless it is to review the
action taken by the IAC on the petition filed with it. A violation
of this rule shall constitute contempt of court and shall be a
cause for the summary dismissal of both petitions, without
prejudice to the taking of appropriate action against the
counsel or party concerned.
So, sabi mo, “I believe I’m a clever lawyer. So I will
file two identical petitions.” According to the provision, once
the CA learns that you filed an identical petition before the SC,
the CA will dismiss the petition before it. And once the SC also
learns, it will dismiss the petition you filed before it. So you end
up with nothing. You end up with no petition because both
will be dismissed. And not only that, the court will declare you
in contempt of court. And if I’m a lawyer, disciplinary action
may be instituted against me. It turns out that you have
placed yourself in a frying pan. In other words, this is what is
called as abhorrent contemptible practice of forum shopping.
It means invoking the jurisdiction of two or more courts
simultaneously. That is an act of contempt of court. That is the
effect.
B. Jurisdiction of the Court of Аppeаls:
Exclusive Jurisdiction
Now, let’s go to the next type of jurisdiction of the
CA.
Exclusive original jurisdiction over actions for annulment of
judgments of Regional Trial Courts.
You will notice that this type of action belongs to the
original jurisdiction of the CA. Just like in par. 1. However, if
you notice, in par. 2, it says exclusive original. In par. 1, the
word exclusive is not present. Again, as I said earlier, in par. 1,
the jurisdiction of the CA is concurrent with the SC. In par. 2,
the original jurisdiction of the CA is exclusive. You can only file
this type of action before the CA. Actions for annulment of
judgments of the RTC. Is this similar to an appeal? Is this the
same as appealing the decisions of the RTC to the CA? NO,
because in appeal, it pertains to its appellate jurisdiction. But
this is not appellate. Original ito, Meaning, you are filing an
action before the CA for the first time and the nature of the
action is to annul a judgment of the RTC. In civil cases, there is
what we call actions for annulment of contract or actions for
rescission of contract. There is also such case as annulment of
judgment of the RTC. And you will come to wonder: What is a
the ground to annul the judgment of the RTC? And how do
you distinguish it from an appeal?
The present 1997 Rules on Civil Procedure now
contains a specific rule on this. Before 1997, the guidelines for
annulment of judgments are SC decisions. There is no specific
rule. Right now, starting July 1, 1997, there is a specific rule on
annulment of judgment of the RTC and it is found in Rule 47 of
the New Rules. It is precisely enacted to implement par. 2. We
will discuss that rule as we get there.
C. Jurisdiction of the Court of Аppeаls:
Appellate Jurisdiction
Par. 3 is the most popular jurisdiction of the CA -
appellate. Most cases which land in the CA are appealed
cases. So par. 3 defines the appellate jurisdiction of the CA.
Exclusive appellate jurisdiction over all final judgments,
decisions, resolutions, orders or awards of the RTCs and quasi-
judicial agencies, instrumentalities, boards or commissions,
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 SC in accordance
with the Constitution, the Labor Code of the Philippines under
PD 442, as amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph (4)
of the fourth paragraph of Sec. 17 of the Judiciary Act of 1948.
Take note that the appellate jurisdiction of the CA is
exclusive. If you analyze par. 3, you will notice that the CA is a
powerful court because it has exclusive appellate jurisdiction
over all final judgments, decisions, resolutions, orders or awards
of the RTCs. So as a general rule, if the RTC anywhere in the
country renders a decision and you want to appeal, whether
civil or criminal, chances are it will got to the CA. All RTCs ,
exclusive pa. And not only that. The law says and quasi-
judicial agencies, instrumentalities, boards or commissions.
These are administrative bodies. They are not actually part of
the judiciary but that of the executive branch. But they act
just like courts of justice. They can decide cases and there are
hundreds of administrative bodies in the Philippines. Therefore,
if you lost a case before any of these tribunals, bodies, the
appeal is not to the SC but to the CA. The amendment of RA
7902 is even more specific by adding “including the Securities
and Exchange Commission, the Social Security Commission,
the Employees Compensation Commission and the Civil
Service Commission”.
And then the law says “except those falling within the
appellate jurisdiction of the SC in accordance with the
Constitution”. So meaning, all cases should be appealed to
the CA except those belonging to the SC under the
Constitution. We know that already. When the issue is on the
constitutionality of a law, treaty, legality of a tax, jurisdiction of
any court. Yan ang mga hindi pwede sa CA. Derecho sa SC.
Then except also those “under the Labor Code of the
Philippines under PD 442, as amended”. In the first place, a
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labor case is not supposed to be filed in court but before the
NLRC. Start with the Labor Arbiter whose decisions are
appealable to the NLRC. Then, from there, its decisions
cannot be appealed to the CA- direct to SC by certiorari. Also
decisions of the Secretary of Labor. Sa SC, not with the CA.
Ano ba itong “the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph
(4) of the fourth paragraph of Sec. 17 of the Judiciary Act of
1948”? In other words, the new Judiciary Law still makes
reference to the old law particularly Sec. 17 of the Judiciary
Act of 1948. This shows that the entire Judiciary Law has not
been totally repealed. Some provisions are still intact because
of the reference. Subpar. (1) of the 3rd par. applies only to
criminal cases so I will not touch on that.
Subpar (4) of the 4th par. of Sec. 17 - I’ve already
mentioned the substance of this: When my appeal from the
RTC is on pure legal question - SC. Suppose nasagulan ng
question of fact. Meaning halo. Then under this provision of
the 1948 law, you cannot appeal directly to the SC. You must
appeal to the CA. The same thing on whether the issue is on
the constitutionality of a treaty, law, legality of a tax, when the
jurisdiction of a lower court is in issue. As explained here in
Judiciary Act of 1948, if the appeal is 100% constitutional issue,
jurisdictional issue, legality issue - SC. But if it is mixed with
questions of fact - CA. That is what the paragraph is all about.
So that takes care of the jurisdiction of the CA. The first two is
original. The third is appellate. Now, let’s continue reading the
rest of Sec. 9, the last paragraph.
The Court of Appeals shall have the power to try
cases and conduct hearings, receive evidence and perform
any and all acts necessary to resolve factual issues raised in
cases falling within its original and appellate jurisdiction,
including the power to grant and conduct new trials or further
proceedings. Trials or hearings in the CA must be continuous
and must be completed within three (3) months unless
extended by the Chief Justice. (As amended by RA 7902)
This paragraph shows that the new CA is a more
powerful court than the old CA before BP 129. It says that the
CA has the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve
factual issues raised in cases falling within its original and
appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings. The old CA does
not have the power to try cases and receive evidence.
Meaning, the new CA can act just like an RTC. The former CA
has the power to conduct, has the power to order a new trial.
The present CA has the power to order a new trial or to
conduct a new trial itself. So it is a more powerful court than
the old CA. Alright. It can act just like a trial court.
However, the SC has explained what is meant by
receive evidence in cases falling within its original and
appellate jurisdiction. The SC explained this in the 1983 case
of:
LINGNER & FISHER GMBH vs. IAC
125 SCRA 522
Evidence necessary with regard to factual issues
raised in cases falling within the CA’s original and appellate
jurisdiction contemplates incidental facts which were not
touched upon or fully heard by the trial court. The law could
not have intended that the CA would hold an original and full
trial of a main factual issue in a case which properly pertains to
a trial court. The law never intended the CA to take the place
of the RTC. What is contemplated there in receiving evidence
refers to evidence to prove incidental facts, marred facts
which were not touched upon or fully heard by the trial court.
It is never intended to take the place 100% of the RTC.
End of Jurisdiction of CА
REGIONAL TRIAL COURT
We will now go to the jurisdiction of the third court in
the judicial hierarchy - the Regional Trial Court. We are more
familiar with the RTCs because there presence is felt around
the country. You go to any province, any city, meron talaga
yan. In Davao City alone, we have 11 branches here. You go
to Ecoland, mga RTCs nandiyan.
The RTC is a court of general jurisdiction. It is actually
the workhorse of the Philippine Judiciary. Talagang mabigat
ang trabaho nitong RTC. Their workload is terrible. Before,
may nagtanong: “Dean, gusto mo bang maging judge ng
RTC?” Inyo na na! Because there are only two things there. If
you’ll accept a job as an RTC judge, two things can happen.
If you want to excel and do your job properly, you will die
early because of the workload. So, you’ll end up as one who
is lazy. You’ll end up with administrative cases left and right for
laziness. Kaya, huwag ka na lang magtrabaho diyan kay
mabigat ang trabaho ng RTC.
Now, how many RTCs are there in the Philippines?
Look at the opening clause of Sec. 13.
Sec. 13. Creation of Regional Trial Courts - There are
hereby created thirteen (13) Regional Trial Courts,
one for each of the following judicial regions:
xxx
So there are 13 judicial regions. So there is one RTC
for the 11th Judicial Region. Sa Davao City, there are more
than ten branches. Bakit ganoon? In every region, the court is
divided into branches. So speaking of branches, siguro there
are about 1,000 branches scattered all over the country. As a
matter of fact, if you want exactly how many, read Sec. 14
which has been amended several times. The latest
amendment is that of RA 7154 which provides that 41 RTC
judges shall be commissioned for the 11th judicial region.
So, since there are 41 of them scattered throughout
the region, from Surigao to South Cotabato to Saranggani, I
would like to file a case against my neighbor who is in Davao.
So, i-file ko sa Polomolok. Anyway, that is the same court. Or a
criminal case was committed in Davao City. File sa Mati. Are
you allowed to do that? No. Every branch of the RTC has its
own area of responsibility. Except in Davao City or in
chartered cities, the authority of every branch here is
throughout Davao City. But sa probinsiya, hati-hati yun eh.
The provision there is Sec. 18 of BP 129.
Sec. 18. Authority to define territory appurtenant to each
branch. - The SC shall define the territory over which a branch
of the RTC shall exercise its authority. The territory thus defined
shall be deemed to be the territorial area of the branch
concerned for the purpose of determining the venue of all
suits, proceedings or actions, whether civil or criminal, as well
as determining the MetTCs, MTCs and MCTCs over which the
said branch may exercise appellate jurisdiction. The power
herein granted shall be exercised with a view to making the
courts readily accessible to the people of the different parts of
the region and making the attendance of litigants and
witnesses as inexpensive as possible.
Sa province, every branch has its own defined area.
If you are from Nabunturan, you cannot file a case in Panabo.
Page 12 of 296
Kay layo niyan. There is a branch there in Nabunturan.
Kanya-kanyang responsibility. The law says the SC has the
power to define territory appurtenant to each branch. As
early as 1983, the SC has already come out with administrative
orders throughout the Philippines defining the area of
responsibility of each branch. That is very useful. For example,
a case originated in Babac. That’s part of Davao del Norte.
Saan ba ito i-file? Panabo or Tagum? Kaya I have to consult
that circular. Now, will you please correlate Sec. 18 with the
Sec. 2 of the Interim Rules. They are related.
Interim Rules, Sec. 2. Territorial Jurisdiction of
Courts. -
MetTCs, MTCs and MCTCs shall exercise their
jurisdiction in the city, municipality or circuit for
which the judge thereof is appointed or
designated.
A Regional Trial Court shall exercise its jurisdiction
within the area defined by the SC as the territory
over which the particular branch concerned shall
exercise its authority, in accordance with Sec. 18 of
BP 129.
JURISDICTION OF RTC IN CIVIL CASES
So every RTC shall exercise authority in their defined
area. So these are what you call administrative provisions to
understand the structure of the RTC. We will now go to the
RTC’s jurisdiction. The most important provision dealing with
the jurisdiction of the RTC in civil cases is Sec. 19. There are 8
types of civil cases which belong to the exclusive original
jurisdiction of the RTC. Sec. 19 was amended by RA 7691 three
years ago in 1994. Not all sections were amended.
A. Jurisdiction of RTC: EXCLUSIVE ORIGINAL
JURISDICTION
Sec. 19. Jurisdiction in civil cases. - Regional
Trial Courts shall exercise exclusive original
jurisdiction:
In all civil actions in which the subject of the
litigation is incapable of pecuniary
estimation.
What does that mean? Where the subject of the
litigation is not expressed in terms of pesos or centavos. In
most cases that we know, the demand of the plaintiff is
expressed in terms of amount. Like for example, a janitor will
file a case for collection of an unpaid loan of the defendant.
Ang nakalagay sa demanda niya: That after trial, the court
should order the defendant to pay him the sum of P50T na
utang plus interest. So the subject is expressed in terms of
amount . Or damages ba. That the court should order
defendant to pay damages amounting to half a million.
Karamihan ng kaso ganyan. But here, in a civil case, the
subject of the civil case is incapable of pecuniary estimation.
Can you think of a civil case where the subject is incapable of
pecuniary estimation? Yes, in Obligations and Contracts -
rescission of contracts. Or an action for specific performance.
To compel defendant to comply with the terms of the
contract. Now, let’s go to no. 2.
In all civil actions which involve the title to,
or possession of, real property, or any
interest therein, where the assessed value of
the property involved exceeds Twenty
Thousand pesos (P20,000.00) or, for civil
actions in Metro Manila, where such value
exceeds Fifty Thousand Pesos (P50,000.00)
except actions for forcible entry into and
unlawful detainer of lands or buildings,
original jurisdiction over which is conferred
upon the MetTCs, MTCs, and MCTCs.
Yes, this no. 2 is related to your study of Property. The
civil action involves the title to or possession of real property or
any interest in real property. Now, let’s give an example of a
case that fits that description. An action for recovery of
ownership of a piece of land (accion reivindicatoria). Or
recovery of possession of real property (accion publiciana).
Now, if I will file a case against somebody to recover
ownership or possession of this land, where will I file the case?
In the RTC or MTC? Answer: It depends. How much is the
assessed value of that land? If the assessed value of the real
property exceeds P20T, it should be in the RTC. But if the
assessed value is only P20T or below, obviously, it does not
belong to the RTC. So it must belong to the MTC. So, it
depends on the assessed value of the land. So, if more than
P20T, RTC. P20T or less, MTC. Now, if you will notice, in Metro
Manila, the jurisdiction there of the court is a little bit different.
It is a little bit higher. Because in Metro Manila, if the assessed
value of the property is only P50T or less, it should be in the
MetTC. So, the RTC there is over P50T. So, outside Metro
Manila, the cut-off point is P20T.
The third type of action that you can find in the law
of Property to recover real property is the so-called forcible
entry or unlawful detainer which are properly called ejectment
cases. Now, under the law, it says here that the RTC has totally
NO jurisdiction over forcible entry and unlawful detainer cases.
Original exclusive jurisdiction belongs only to the MTC. So to
repeat, RTC has no jurisdiction in ejectment cases.
Now, let’s go to the third type of civil action triable in
the RTC.
In all civil actions in admiralty and maritime
jurisdiction where the demand or claim
exceeds One Hundred Thousand pesos
(P100,00.00) [now P300,000] or, in Metro
Manila, where such demand or claim
exceeds Two Hundred Thousand pesos
(P200,000.00) [now P400,000]. (As amended
by RA 7691)
Section 5 of RА 7691 took effect on Аugust 15, 1994 which
provides thаt:
After five years from the effectivity of this
Аct, the jurisdictional amounts shall be
adjusted further to P200,000. Five years
thereafter, such jurisdictional amounts shall
be adjusted further to P300,000. Provided,
however, that in Metro Manila, the amounts
shall be adjusted after five years from the
effectivity of this act to P400,000. (Sections
effected: Sec. 19 (3), (4), (8) and Section 33
(1) of BP 129.
Take note that BP 129 has been amended by RA 7691 entitled
An Act Expanding the Jurisdiction of the MTC which took
effect on April 14, 1994. Under this law, the jurisdiction outside
Metro Manila of the MTC is P100T in money claims under pars.
3, 4 and 8 (admiralty, estate/intestate and money claims,
respectively). That wаs only good for five (5) years from the
date of effectivity of the Act. So, April 15, 1994 to April 15,
1999. After April 15, 1999, it automatically increased to P200T.
Automatic. So, after April 15, 1999, the jurisdiction of the MTC
automatically increased to P200T for another five (5) years. So,
April 15, 1999 to April 15, 2004. And after April 15, 2004, it аgаin
automatically increased to P300T. So, now (2007), P300,000 is
the jurisdictional amount outside Metro Mаnilа; P400,000 if in
Metro Mаnilа)
Page 13 of 296
 I understand that you’re taking up Transportation Law
this semester. Cases arising under the law on Transportation
(Code of Commerce) are the so-called admiralty and
maritime cases. A good example is where a shipper shipped
through a carrier, for instance, a steamship company, goods
or cargo bound from Manila to Davao. And where the vessel
arrived here, the goods disappeared while under the custody
of the carrier. Or the goods arrived but they are in damaged
condition. So the consignee would like to file a case against
the carrier for lost or damaged cargo. That kind of action is
called admiralty or maritime claim arising under the law on
Transportation. Where will the action be filed? How much is
the loss of the cargo or how much is the damage? If the
damage or the value of the lost cargo exceeds P300,000 -
RTC. So obviously, if it is P300,000 or less, MTC. And again in
Metro Manila, P400,000.
Now, do not confuse No. 2 with No. 3. No. 2 is lupa or
real property. More than P20T ang assessed value. Dito
naman, actually, money claim ito. Admiralty, lost cargo or
damaged cargo. The cut-off amount is P300T. Okay?
In all matters of probate, both estate and
intestate, where the gross value of the
estate exceeds One Hundred Thousand
pesos (P100,000.00) [now P300,000] or, in
probate matters in Metro Manila, where
such gross value exceeds Two Hundred
Thousand pesos (P200,000.00) [now
P400,000]. (As amended by RA 7691).
Yes, matters of probate both testate and intestate.
Now, this is related to the study of Wills and Succession in the
third year. When a person dies, especially where he has left
behind a lot of assets and he has heirs and creditors, his estate
will be settled for the benefit of his heirs and creditors. The
settlement proceeding is called testate or intestate depending
on whether he left a will or not. Kung may will, testate
proceeding. Kung wala, intestate. Now, what court has
jurisdiction to entertain an action for testate or intestate
proceeding? It depends. How much is the gross value of the
estate of the deceased person? Again the cut-off point is
P300T outside Metro Manila. If it exceeds P300T, the testate or
intestate proceeding should be in the RTC. If it is only P300T or
less, it should be in the MTC.
In all actions involving the contract of
marriage and marital relations.
Obviously, this is related to the study of the Family
Code. Mostly cases between husbands and wives. Cases
arising out of the contract of marriage or marital relations.
Examples: judicial separation of properties, declaration of
nullity of marriage or an action for legal separation. These
types of cases can only be tried in the RTC. If you file these in
the MTC, they will be dismissed. The MTC has no jurisdiction.
Note: Already amended by a special law creating FAMILY
COURTS (RTC) .
We shall skip first no. 6. We will return to that later.
Let’s go to no. 7.
In all civil actions and special proceedings
falling within the exclusive original
jurisdiction of a Juvenile and Domestic
Relations Court and of the Court of Agrarian
Relations as now provided by law.
Yes. As I said earlier, before BP 129 took effect, there
were some special courts existing in the Philippines like the
JDRC, in some cities lang. Davao City never had a JDRC.
Another one is the Court of Agrarian Relations. All these courts
were abolished. So what happened to the cases which used
to be under their jurisdiction? Saan napunta? All of them
were transferred to the RTC. What are these cases tried by the
JDRC? Normally, those involving children, custody of children
or an action for support filed by a child against his parents or
an action for compulsory recognition or acknowledgment. Or
an adoption proceeding. Yan ang mga kaso sa old JDRC.
These types of cases now belong to the RTC.
Now, I would like to call your attention to a few
modifications on the law of jurisdiction which we already have
discussed -- BP 129 -- in the light of RA 8369, otherwise known
as the FAMILY COURTS ACT OF I997 which was approved on
October 28, 1997. This is supposed to be an Act establishing
FAMILY COURTS granting them EXCLUSIVE and ORIGINAL
JURISDICTION over CHILD and FAMILY CASES amending BP 129.
We will just discuss the salient features of the law. In
the first place, the law mandates the creation of family courts
in every province and city in the country.
In what way has BP 129 been modified ? Section 5 of RA 8369
defines the jurisdiction of the Family Courts. I noticed that the
law says exclusive, original jurisdiction to hear and the
following cases. There are even criminal cases but we'll just
concentrate on the civil cases first.
If you will notice, Sec. 9(b) of BP 129 enumerating the
exclusive, original jurisdiction of the RTC. There are two
paragraphs which covered cases affecting the Marital
Relations of parties; e.g. annulment, declaration for nullity of
marriage, legal separation, dissolution of the conjugal
partnership.
Another one are cases which used to belong to the Juvenile
and Domestic Board na napunta sa RTC ; e.g. support,
acknowledgment of children, adoption, guardianship, and
etc.
ALL THESE CASES ARE TRANSFERRED TO THE FAMILY
COURTS.
PETITION for guardianship, custody of children,
habeas corpus, petition for adoption of children and the
revocation thereof, complaints for annulment of marriage,
declaration for the nullity of marriage, including those relating
to marital status and property relations between husbands and
and wives, or those living together under different status and
agreements, petitions for constitution of conjugal partnership
of gains, petition for support and/or acknowledgment,
summary judicial proceedings brought under the provisions of
EO 209(FAMILY CODE), petitions for the declaration of status of
children, abandoned or neglected children, petitions for
voluntary or involuntary commitment of children, suspension or
termination or restoration of parental authority in cases
cognizable under PD 603 (Child and Youth Welfare Code), EO
56 and other related laws. The Law also mention the
constitution of a family home, this is a little bit absurd -- there's
no more judicial constitution of a Family Home, because under
the Family Code, it is automatic.
Note also cases of domestic violence against
women, children, etc. So, na-modify because napunta na sa
Family Court.
Another important question, how do you appeal
from the Family Courty? The procedure is the same -- the
manner appeal frpm the RTC to the CA.
Furthermore, pending the establishment of such
Family Courty (section 17) the Supreme Court shall designate
from among the branches of the the RTC, at least one family
court in each of the cities and in such places as the SC may
deem necessary. So in the meantime, one of the RTC
branches here will be the temporary family court until the
family court is already constituted.
Another thing to remember, it is not correct to say
that the RTC has been completely deprived of authority over
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these cases already mentioned above because Section 17 of
RA 8369 says " In areas where there are no Family Courts, the
cases referred to under section 5 of this Act shall be
adjudicated by the RTC". So, it's not really that the entire
judiciary law regarding this matter ay napalitan.
So, those are the salient features of the Family Court
Act of 1997.
How about the Court of Agrarian Reform (CAR)? The
CAR, as the term implies, was the court which threshes out or
resolves disputes between tenant and landlord in an
agricultural land. Tenancy cases, baga. The CAR was
abolished in 1983 to be exact. All tenancy cases were then
transferred to the RTC. However, the jurisdiction of the RTC
over tenancy cases inherited from the CAR did not last long
because in 1987 and also in 1988, Pres. Aquino enacted EO
229 and later on confirmed the following year by RA 6657 the
Comprehensive Agrarian Reform Law (CARL) which took
effect on June 15, 1988. Under these laws, the jurisdiction over
tenancy and agrarian disputes was transferred to the
Department of Agrarian Reform (DAR) and removed from the
RTC. So, with the enactment of the CARL, all tenancy disputes
already belong to the DAR particularly the DAR Adjudicatory
Board (DARAB).
However, there are still two (2) types of cases arising
under the CARL which still belongs to the RTC now. And these
are:
1. Petitions for the determination of just
compensation to lot owners, and
2. Prosecution of criminal offenses under the
CARL.
If your property is placed under the coverage of the
CARP, the government will take your title, transfer it in the
name of the government for distribution to beneficiaries. The
government will assess your property and pay you. But in most
cases, the land owner does not agree with the assessment.
Away-away. Eh, siyempre ang gobyerno, mababa ang
presyo. If you cannot agree, where will the owner go? Sa
RTC. The other one is criminal case. A criminal case is filed
against you for violation of the CARL. That was the
explanation given by the SC in the 1991 case of:
QUISMONDO vs. CA
201 SCRA 609
The SC said: With the enactment
of the CAR law and the prior EO 229, the
RTCs were divested of their original
jurisdiction to try agrarian reform matters.
The said jurisdiction is now with the DAR. The
CARL delimits the jurisdiction of the RTC only
in two (2) cases: (1) petitions for the
determination of just compensation to lot
owners, and (2) the prosecution of criminal
offenses under the CARL.
So, these are the only cases retained by the RTC.
Now, let’s go to no. 8 which the most common. Most cases
filed in court are falling under no. 8.
In all cases in which the demand, exclusive
of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and
costs or the value of the property in
controversy exceeds One Hundred
Thousand pesos (P100,000.00) [now
P300,000] or, in such other cases in Metro
Manila, where the demand, exclusive of the
above-mentioned items exceeds Two
Hundred Thousand pesos (P200,000.00) [now
P400,000]. (As amended by RA 7691)
The best example here is money claim, demand for
money. Say, somebody secured from me a loan and then he
failed to pay. So I file a case to collect the loan. Where will I
file the case? The answer depends on how much is the loan
you are collecting? If the amount of the loan is over P300,000 -
RTC. If P300,000 or lower - MTC.
The law says in all cases x x x or the value of the
property in controversy. What is this property in controversy? It
obviously refers to personal property. Why? If the property you
are recovering is real like lupa, it should fall under no. 2. If the
property you are trying to recover is a piece of land or a
building, it should fall under no. 2. So no. 8 refers to personal
property. Like you would like to recover a car. Or in the law
on Sales, the remedy of an unpaid seller. Because the unpaid
seller has not been paid, he would like to get back the
personal property that he sold. So, saan mag-file ang unpaid
seller? How much is the personal property? Kung kotse yan,
mataas-taas. Doon sa RTC. Pero kung refrigerator lang yan,
doon sa MTC. I don’t think a refrigerator would go over P300T.
So, that’s how you size up.
Now, we go to another area of no. 8. I will file a case
against my debtor to recover the principal loan amounting to
P80T. And then his accumulated interest is already P40T. So,
P80T plus P40T equals P120T. Then, I’d like to claim P10T for
moral damages, then another P10T for exemplary damages.
Attorney’s fees and litigation expenses pa of P10T. Total claim
is P150T. Where will I file the case? Answer: You will file it in the
MTC. Bakit? Because the law says exclusive of exclusive of
interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs. Meaning, the principal demand is only
P80T. so do not include in the determination of the jurisdiction
of the court the interest, damages and so on. While they are
recited in the complaint and you also pay the filing fee, in
determining the jurisdiction of the court, you do not include
these. Exclusive eh. Remember that.
Now, here’s an interesting question. Suppose I will file
a case against you purely for damages. Example: An action
for moral damages because you humiliated me. An action for
damages arising from defamation. I’m claiming P1M. Will I file
it in the RTC? P1M eh. But the law says exclusive of exclusive
of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs. So if you exclude the entire P1M,
practically wala ka ng claim! So obviously, I will file it in the
MTC. The SC has already explained the meaning of this
phrase after the effectivity of BP 129 in Adm. Circ. No. 09-94.
As explained by the SC, the phrase exclusive of exclusive of
interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs applies only when the claim for damages
is incidental to another cause of action. But where your claim
is purely damages, so it is the main action, then, you include it
in determining the jurisdiction of the court. Did you get that? If
the claim for damages is only incidental to another claim, the
damages are not included in determining the jurisdiction of
the court. But if the claim is 100% damages, every centavo is
included in determining the jurisdiction of the court.
Let us go to a direct example. I will file a case
against you to collect a loan of P300T plus moral damages of
P20T. Obviously the claim for damages is only incidental
because your main action is the collection of an unpaid loan.
Therefore, do not add the P20T. Incidental lang eh. Another
example: A case for recovery of a piece of land (accion
publiciana). The land is worth P20T plus damages for your
occupying my land amounting to P120T. The main action is for
recovery of a piece of land worth P20T. Saan yan? Sa MTC.
Again, the damages is only incidental.
But if my action against you is a claim purely on
damages amounting to P1M, that is not incidental. That is the
main action itself. And therefore, since my claim exceeds
Page 15 of 296
P300T, the case should be filed in the RTC. That is what Adm.
Circ. 09-94 is all about.
Now, let’s go to interesting cases on money claims. I
will compose a problem based on what happened here.
ORTIGAS & CO. LTD. PARTNERSHIP vs. HERRERA
120 SCRA 89
A entered into an agreement with
B. The agreement is that A will deposit with
B P30T. After certain conditions are
complied with, B is supposed to return to A
the P30T. Refund. Para bang sa Davao
Light. Tubig. Make a deposit. If you’re
moving out, they will cut off your
connection. Sauli sa iyo and deposit made.
Something like that. Now, according to A,
the conditions have been complied with
but still, B refused to return A’s deposit of
P30T. Therefore, he filed a complaint and
he prayed that the court shall order B to
refund to him the P30T. The caption of his
complaint is Sum of Money. Meaning, he is
collecting a sum of money under par. 8.
And since the claim is only P30T, sa MTC, di
ba?
The SC, however said: The MTC
has no jurisdiction. It should be filed in the
RTC. Why? That is not a money claim but
an action for specific performance. Hindi
naman utang yan eh. You are compelling
him to abide by the agreement to refund
the money. That is an action for specific
performance where the subject is
incapable of pecuniary estimation. It falls
under no. 1 of Sec. 19 and not under no. 8
on money claims. So the RTC has
jurisdiction.
Pero sabi ng plaintiff, “No, it’s an
action for sum of money. As a matter of
fact, that is how I designated my
complaint.” Said the SC, the nature of the
action is determined by the allegations in
the body not by what you place there.
The principle is similar to Contracts.
The nature of the contract is determined by
the stipulations and not by the title. What is
controlling is the body. Halimbawa, sabihin
mo Contract of Sale, tapos, ang body
Mortgage. Which is which? The body or
the title? The body is controlling. Even in
criminal cases, if I file a case for murder but
basahin mo wala namang qualifying
circumstance. So homicide.
Now, we go back to no. 6. We skipped that earlier.
In all cases not within the exclusive
jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial
functions.
That is a very broad provision. What it is saying is that
the RTC shall have exclusive jurisdiction in all cases not falling
within the exclusive jurisdiction of any other court or any other
quasi-judicial body. So, practically, what does not belong to
anyone, automatically belongs to me. If it belongs to you, sa
iyo. But if there is no law which grants jurisdiction to any of you,
it belongs to the RTC. It makes the RTC the universal catcher.
Example. An employee will file a case against his employer for
unpaid wages, overtime, ECOLA, plus reinstatement for illegal
termination. Under the Labor Code, i-file sa NLRC, di ba? The
RTC has no jurisdiction because the Labor Code gives it to the
NLRC.
But if you can find a case which does not mention any, eh, di
sa RTC. Example: Under the Judiciary Law, if plaintiff would
like to file an action for annulment of judgment of the RTC,
where should he file his action? CA (Sec. 9, par. 2). Original
exclusive jurisdiction. Now, I will change the problem. I would
like to file an action for annulment of judgment of an MTC. If
there’s an action for annulment of judgment of an RTC,
common sense will tell you that there must also be an action
for annulment of judgment of an MTC. Obviously, there must
be! Will I file it in the CA? CA will not take it. Annulment of
judgment ng RTC lang sila. Should I go to the SC? Lalong i-
dismiss yan. Punta ako sa Labor Arbiter. “Anong pakialam ko
diyan?” So wala kang mapuntahan. Saan ka pupunta? Sabi
ng Sec. 19 (6), “Akin yan.” Kaya nga very broad ang provision
eh.
RTC vs. Administrative Body
This area of RTC jurisdiction is also important in the
study of Administrative Law.
There are many cases in the past where there was a
controversy as to whether the case shall be tried in the court or
before an administrative body. To cite a few of them:
SANDOVAL vs. CANEBA
190 SCRA 77
This case involves the business of subdivision
development. The developer wanted to collect from some
buyers unpaid instalments. He filed the case in the Regional
Trial Court under par. 8 of Sec. 19 that he is claiming for the
payment of a sum of money. When the case reached the
Supreme Court, the SC said that the RTC has no jurisdiction
because under PD 957, it is the Housing and Land Use
Regulatory Board and not the RTC which has jurisdiction to
hear a case involving non-payment of instalments of
subdivision lots. That decree is a special law which governs
the activities of the HLURB (formerly known as the NHA). Being
a special law, jurisdiction pertains to HLURB and not the RTC
although what you are trying to collect is a sum of money.
C.T. TORRES ENTERPRISE, INC. vs. HIBIONA
191 SCRA 268
The same thing happened in this case. Only this
time, it is the lot buyers suing the subdivision owner for
allegedly not maintaining the subdivision in good order and
condition. So the lot buyers sued the subdivision owner for
specific performance. It was filed in the RTC under par. 1:
action for specific performance.
The SC ruled that a complaint for specific
performance and damages filed by subdivision lot buyers
against a developer falls under the jurisdiction of the HLURB
because it is a dispute between subdivision owner and lot
buyer. But besides specific performance, the plaintiff argued
that he is also filing for damages. And, if you claim for
damages, according to the plaintiff, that calls for the provision
of the Civil Code. Can the HLURB apply the Civil Code in
awarding damages? Can the HLURB award damages? Is it
not that only the courts are authorized to award damages?
SC: That only courts of justice can adjudicate claims
resoluble under the provisions of the Civil Code is out of step
with the fast changing time. That was the thinking 30 years
ago. There are hundreds of administrative bodies now
performing this function by virtue of a valid authorization by
the legislature. This quasi-judicial function, as it is called, is
exercised by them as an incident of the principal power
Page 16 of 296
entrusted to them of regulating certain activities falling under
their particular expertise. It is only incidental.
As a matter of fact, when you take up Labor
Relations in third year, the question is asked whether the NLRC
is authorized to grant damages also to an employee, moral
and exemplary, which normally is only awarded by courts. The
Labor Code says yes. In other words, even damages now can
be awarded by administrative bodies.
FAJARDO vs. BAUTISTA
234 SCRA 297 (1994)
This case involves lots buyer and the developer.
The owner of the subdivision entered into a contract with
the lot buyers. Contract to sell, where a buyer buys a lot for
say P100,000 (in 1994, the jurisdictional amount was 100,000)
he pays monthly, and only after full payment will the final
deed of sale be executed to transfer the ownership of the lot
to the buyer. After the signing of the contract, the buyers
learned that the developer sold the same lots to another
buyer. So the lot buyers filed a suit before the RTC for
annulment of the sale in favor of the third person-buyer.
In the Judiciary Law, annulment of contract is in the
RTC because it is an action where the subject is incapable of
pecuniary estimation. And the jurisdiction of the RTC is again
challenged because the case for annulment should be filed
before the HLURB, not before the regular courts.
The lot buyers argued that it should be before the
RTC because the title of the developer has already passed to
a third person. The title is no longer in the name of the
developer, and the third person who has the title is not the
developer. Therefore, under Sec. 19 par. 1 of the Judiciary
Law, it is the RTC’s jurisdiction for civil actions which involve
title to and possession of property or interest therein (par. 2).
It would be logical since I’m annulling the title of a third
person and not the subdivision owner. Is that argument
correct?
The SC said it is wrong! The RTC still has no
jurisdiction. Why? Because under the HLURB Law, one of the
cases which should be heard and tried by HLURB are cases
which involve unsound real estate business practices. It is
unsound real estate practice when you commit to and sold
the land to one person and commit and sold the same to
another. Now aside from unsound real estate business
practice, the complaint also involved specific performance
of the contractual and statutory obligations of the owner
and developer of the subdivision. So it is a still an action
against the developer whether you like it or not.
These are some instances, no? You should familiarize
yourselves with these cases, in order to determine whether it is
the court which should try the case or the specific
administrative body. Another case:
BENGUET CORP. vs. LAVISTE
204 SCRA 99
This involved the contract
between two mining companies, one of
which is the petitioner Benguet Corp. The
contact is an operations agreement, where
one mining company will operate the
mining business of the other company.
There was a quarrel between the two
companies, so one company filed a case
for annulment of contract. Now, since the
action is for annulment of contract,
obviously, the lawyer of the company filed
the action before the RTC, under par. 1
again of Art. 18.
But when the case reached the
Supreme Court, the SC ruled again that the
RTC has no jurisdiction, because there is a
special law about mining activities: P.D.
1281. According to the SC., PD 1281 gives
the Bureau of Mines the jurisdictional
supervision and control over all holders of
mining claims, or applicants for or grantees
of mining licenses, permits, leases and/or
operators thereof, including mining service
contracts and service contractors insofar as
their mining activities are concerned. So
the decree confers upon the Bureau of
Mines quasi-judicial powers. It provides that
the Bureau of Mines shall have original and
exclusive jurisdiction to hear and decide
cases involving cancellation and/or
enforcement of mining contracts. So the
law is very clear. The trend is to make the
adjudication of mining cases a purely
administrative matter.
All these cases illustrate the principle in Art. 19, Sec.
19, par. 6: The RTC has exclusive jurisdiction over any case not
falling within the jurisdiction of any other court or quasi-judicial
body. But there are also cases where the jurisdiction of courts
is in question. Whether the jurisdiction is in the RTC or any other
body.
LUPANGCO vs. CA
160 SCRA 848
In 1985, there was a CPA board
examination conducted by the Professional
Regulations Commission (PRC). It became
so anomalous that leakages where already
circulating even before the exam. These
came through review centers, perhaps due
to connections. Because of that, the
following year, the PRC issued a resolution,
Res. No. 105, prohibiting CPA examinees
from attending any review class, meeting,
conference, conducted by any school,
college, university or review center. All the
examinees where prohibited from receiving
any hand-out review materials or tips from
any school, college, university or review
center.
Some CPA reviewees filed a case
of injunction against the PRC to declare
Res. 105 as unconstitutional before the RTC
of Manila. The PRC moved to dismiss
alleging that the RTC has no jurisdiction
because according to it, jurisdiction
belongs to the CA, under Sec. 9, par. 3
citing that only the CA has jurisdiction to
annul the resolution of the PRC.
The SC said, “The PRC, just like
other administrative bodies has two powers:
the quasi-judicial and quasi-legislative. The
quasi-judicial power of an administrative
body is the power to decide cases or
controversies like the court of justice.” An
example is when you file a case against a
doctor to revoke his license for malpractice.
The PRC can make a decision whether to
revoke the license or not. It is acting like a
court in a controversy.
But an administrative body also
has quasi-legislative powers where it issues
rules and regulations to implement the law.
Page 17 of 296
 Sec. 9 of BP 129 says: All resolutions of quasi-
judicial bodies can only be questioned or
appealed in the CA. What kind of
resolution is being determined there? The
SC said, this is a resolution issued by an
administrative body pursuant to its quasi-
judicial power. But if the resolution is issued
pursuant to its quasi-legislative power, that is
not the resolution contemplated in the
Judiciary Law. Because when an
administrative body issues a rule and
regulation to implement a law, it is not
acting as a court of justice. Resolution No.
105 is a resolution of general applicability
issued by the PRC to implement its purely
administrative policies and functions. It is
adopted by the PRC to preserve the
integrity of its licensure examinations.
Therefore, it is not a resolution which should
be questioned in the CA. So, it belongs to
the RTC under par. 1 because, in effect, it is
an action in which the subject of the
litigation is incapable of pecuniary
estimation. Or under par. 6, being a case
not falling within the jurisdiction of a tribunal,
court, person or body exercising judicial or
quasi-judicial functions.
BERNARDO vs. CALTEX, PHIL.
216 SCRA 170
This case involves a controversy
between Caltex Phil., the supplier of
gasoline, and Bernardo, a dealer or gas
station owner. Under EO 172: All disputes
between any operator or dealer in an oil
company regarding dealership agreement
shall be under the jurisdiction of the Energy
Regulatory Board except those arising out
of the relationship as debtor and creditor.
On Dec. 5, 1990, Bernardo went to
Caltex and ordered for gasoline. However,
that night of the same day, there was a
price increase. There was a conflict on
which price to follow: the price in the
morning or at night. The dispute was
brought by Bernardo in the RTC. Caltex
questioned the jurisdiction of the RTC saying
it should be in the ERB.
The SC ruled the RTC has
jurisdiction. Why? The dispute is one arising
from a relation of debtor and creditor under
the Civil Code. The SC said that a contract
of sale of a petroleum product was
deemed perfected between Caltex and its
operator-dealer Bernardo. That by virtue of
the payment made by Bernardo in the
morning, Caltex became a debtor to him in
the sense that it was obligated to make
delivery to Bernardo of the petroleum
products ordered by him. The only issue is
the manner by which Caltex is to perform its
obligation in Bernardo’s favor. It is rather
one cognizable by the RTC as a dispute
indeed arising out of their relationship as
debtor and creditor. And to resolve the
dispute, the tribunal has to apply the
principles of obligations and contracts.
What the controversy was all about is simply
the prices in which the petroleum product is
deemed to have been purchased by
Bernardo in December 1990. This is
obviously a Civil Law question, one
determinable according to the provisions of
the Civil Code and therefore beyond the
cognizance of the ERB.
MACHETE vs. CA
Nov. 20, 1995, 250 SCRA 176
This is related to the question on
agrarian disputes between lot owner and
tenants, nasa DAR na. In this case, the land
owner wanted to collect back rentals from
his tenants. And since he is asking for a sum
of money, he filed it with the RTC. The
tenant questioned the jurisdiction of the
RTC. It should be filed in the DAR.
The SC said the RTC has no
jurisdiction. This is an agrarian dispute which
is exclusively cognizable by the DAR. The
failure of the tenant to pay back rentals
pursuant to the contract with the land
owner is an issue which is clearly beyond
the competence of the RTC to decide. The
doctrine of primary jurisdiction does not
warrant a court to solve a controversy, the
jurisdiction over which is initially lodged with
an administrative body of special
competence.
B. Jurisdiction of RTC: ORIGINAL JURISDICTION
Sec. 21. Original jurisdiction in other cases. -
Regional Trial Courts shall exercise original
jurisdiction:
In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto,
habeas corpus, and injunction which may
be enforced in any part of their respective
regions;
In actions affecting ambassadors and other
public ministers and consuls.
What is the difference between the original
jurisdiction of the RTC in Sec. 21 and the original jurisdiction of
the RTC in Sec. 19? The word exclusive is found in Sec. 19.
Original exclusive. In Sec. 21, the word exclusive does not
appear. Why? Obviously here the jurisdiction of the RTC is
concurrent with other courts. Have we met the phrase “in the
issuance of writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus, and injunction” before? Yes, sa
jurisdiction ng SC. Did we meet it the second time? Yes, Sec.
19 (1), jurisdiction ng CA. So, this is the third time na. So,
conclusion: The SC, CA and RTC have concurrent jurisdiction
over these types of petitions.
So, for example, somebody is detained in Davao
City. He is unlawfully deprived of his liberty and the lawyer
prepares a petition directly to the SC. Does it have
jurisdiction? Yes. Suppose, he files it in the CA. Does the CA
have jurisdiction? The answer is also yes. Now, what about the
RTC? Yes, it also has jurisdiction. So that’s an instance of
concurrent jurisdiction. Well, of course, the only difference is
that the writ of habeas corpus issued by the RTC can only be
enforced in any part of the respective regions. So, within the
11th judicial region lang. That was what was also mentioned in
Sec. 3 of the Interim Rules. The writ of habeas corpus issued by
the SC and the CA, being national courts, can reach and be
enforced anywhere in the country.
How about in actions affecting ambassadors, other
public ministers and consuls? Have we met the term before?
Yes, under the original jurisdiction of the SC. So, second time
Page 18 of 296
na. Conclusion: The SC and RTC have original concurrent
jurisdiction in actions affecting ambassadors, other public
ministers and consuls.
Suppose the question asked is: Enumerate the civil
actions or civil proceeding which are within the original
exclusive jurisdiction of the RTC. Answer: Sec. 19. What cases
are within the original jurisdiction of the RTC concurrent with
other courts? Answer: Sec. 21. If the question is general?
What cases fall within the original jurisdiction of the RTC?
Original exclusive - Sec. 21. Original concurrent -Sec. 21. That
would be the complete answer to the question.
C. Jurisdiction of RTC: APPELATE JURISDICTION
Let’s now go to Sec. 22. As we’ve said earlier, the
RTC is not purely an original court because it also acts as an
appellate court in some instances. Appeals from decisions of
the MTC within their respective jurisdiction or area. And the
provision defining the appellate jurisdiction of the RTC is Sec.
22 which presumably was also touched in the study of Criminal
Procedure because Sec. 22 applies to both civil and criminal
cases.
Sec. 22. Appellate jurisdiction. - Regional
Trial Courts shall exercise appellate
jurisdiction over all cases decided by
MetTCs, MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall be
decided on the basis of the entire record of
the proceedings had in the court of origin
and such memoranda and/or briefs as may
be submitted by the parties or required by
the RTCs. The decision of the RTCs in such
cases shall be appealable by petition for
review to the CA which may give it due
course only when the petition show prima
facie that the lower court has committed an
error of fact or law that will warrant a
reversal or modification of the decision or
judgment sought to be reviewed.
So, for example, I lost in a case before an MTC of
Davao City and I want it to be appealed. My appeal should
be with the RTC of Davao City. The RTC will decide the case
on appeal which shall be based on the records of the case
before the MTC. Your witnesses will not go back to the RTC to
testify all over again. Their testimonies have already been
recorded earlier. Meaning, the RTC judge will simply go over
the records and will render a decision. Now, when the RTC
renders a decision under Sec. 22, what do you call that
decision? It is a decision rendered by the RTC pursuant to its
appellate jurisdiction. In Sec. 19, when the RTC renders a
decision there, it is pursuant to its original jurisdiction.
ORDINARY APPEAL VS. PETITION FOR REVIEW
Just to give you an advanced idea about the flow of
a case: Ito, RTC. The case is filed there pursuant to Sec. 19.
Specific performance, money claims over P300T. Now, if you
lose in the RTC, where will you appeal? Generally, your
appeal is to the CA. Unless it is pure question of law. Now that
is under Sec. 9. This will be discussed more in detail in the last
part of the course - Appeals covered by Rules 40 to 56.
Now, suppose, the case originated in the MTC
because the action is collection of a P50T loan. Talo ka. If you
want to appeal, where will you appeal? RTC, under Sec. 22 of
BP 129. And, under the Rules of Court, that is governed by
Rule 40, 1997 Rules of Civil Procedure. That is what you also
call an ordinary appeal.
Halimbawa, natalo ka sa RTC. Dalawang talo na.
Maka-appeal ka pa ba? What does Sec. 22 say? You can still
appeal to the CA under Sec. 22 but the mode of appeal is not
ordinary appeal but a petition for review. That is governed
under the new rules by Rule 42. So, anong kaibahan nila? You
just changed the name? Ordinary Appeal to Petition for
Review? The answer is NO. In a Petition for Review, the CA
may or may not accept your appeal. Yan, discretionary. You
look at the law. The decisions of the RTC in such cases shall be
appealable by petition for review to the CA which may give
due course x x x. So, “may”, hindi ka sigurado kung
tatanggapin. “ x x x Which may give due course only when the
petition shows prima facie that the lower court has committed
an error of fact or law that will warrant reversal or modification
of the decision/judgment sought to be reviewed.” Unlike doon
sa una, for example, the case started in the RTC. So, talo.
Appeal sa CA. For as long as your appeal is correct and on
time, the CA will entertain you automatically. But here, even if
your appeal is on time, the CA may or may not entertain you.
It may or may not give due course to your petition. Anong
“give due course”? Pag sinabing give due course, ibig sabihin
niyan, “We are accepting your appeal”. So, titingnan nila ang
body. Meron bang laman ito? Kung wala, itatapon lang yan.
Sometimes they will require the other party to comment. After
hearing your comment, the CA might consider the comment
and the petition is hereby given due course. The parties are
then required to submit their memoranda. Due course,
meaning, we are accepting the appeal. Hindi naman
sinasabing panalo ka. Pero pag sinabing we refuse to give
due course, we refuse to accept it. That is what is meant by
the phrase.
Now, if you ask me statistically, for the past 20 years,
what is the rate of petitions for review from the RTC which are
given due course? Sabi ng CA, 15-17% are given due course.
For every 100 petitions for review, 15 are given due course, 85
are thrown out. They did not pass the test under Sec. 22.
End of Jurisdiction of the RTC
MUNICIPAL TRIAL COURT
We will now go to the last court in the judicial
hierarchy - the MTC, also known as the MetTC, MTCC, MCTC,
or MTC. Now, when it comes to civil cases, the governing rule
is Sec. 33 as amended by RA 7691 3 years ago - the law
expanding the jurisdiction of the MTC. In other words, that law
has increased the jurisdiction of the MTC. Well, actually, when
you know the jurisdiction of the RTC, automatically, you know
the jurisdiction of the MTC. In criminal cases for example, sa
RTC, imprisonment of more than 6 years until death penalty.
So, necessarily sa MTC, 6 years or below. Same with civil
cases.
A. Jurisdiction of the Municipal Trial Court:
ORDINARY REGULAR JURISDICTION
Sec. 33. Jurisdiction of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. -
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts
shall exercise:
Exclusive original jurisdiction over civil
actions and probate proceedings, testate
and intestate, including the grant of
provisional remedies in proper cases, where
the value of the personal property, estate, or
amount of the demand does not exceed
One hundred thousand pesos (P100,000.00)
[now P300,000] or, in Metro Manila where
such personal property, estate, or amount of
the demand does not exceed Two hundred
thousand pesos (P200,000.00) [now
Page 19 of 296
 P400,000], exclusive of interest, damages of
whatever kind, attorney’s fees, litigation
expenses, and costs, the amount of which
must be specifically alleged: Provided, That
interest, damages of whatever kind,
attorney’s fees, litigation expenses, and
costs shall be included in the determination
of the filing fees: Provided further, That
where there are several claims or causes of
actions between the same or different
parties, embodied in the same complaint,
the amount of the demand shall be the
totality of the claims in all the causes of
action, irrespective of whether the causes of
action arose out of the same or different
transactions.
So, since the jurisdiction of the RTC in money claims
such as maritime cases, testate/intestate, recovery of personal
property exceeds P300T, so necessarily, if your claim is only
P300T or less, it should be filed in the MTC. And as we already
know, 10 years from the effectivity of RA 7691, the jurisdiction
of the RTC outside Metro Manila аutomаticаlly increased to
P300T.
Now, in determining whether what to include and
what to exclude in the determination of the jurisdictional
amount of P300T, the law says “exclusive of interest, damages
of whatever kind, attorney’s fees, litigation expenses”. That is
what is also stated in Sec. 19. Damages of whatever kind has
been interpreted by the SC in Cir. 04-94.
However, according to the law, even if the amount
of damages or claim are not included in the computation, the
amount of damages must still be specifically alleged.
Meaning, if you are claiming for P1M moral damages, you still
must allege it. Di pwedeng sabihing, “I’m asking the court to
award me P1M. Bahala ka na lang pila ihatag nimo. Well, I’m
leaving it to the court.” There are some lawyers who do that.
“As the Honorable Court may deem proper, reasonable and
just.” That type of practice is prohibited. You must state the
amount that you are claiming even if it is not included in the
determination of jurisdiction and even if it will not be
rewarded. Bakit? Because you must pay filing fee or docket
fee for every centavo you are claiming. Because the law says,
“Provided, That interest, damages of whatever kind, attorney’s
fees, litigation expenses, and costs shall be included in the
determination of the filing fees”. Yan... While it is not included
in the determination of the jurisdiction, it is included in
determining how much the Clerk of Court will charge you.
Pag-file mo, titingnan yang demanda mo. Ah, you’re claiming
P30M. They will consult Rule 141. O, bayad ka ng P30T.
Ganyan. Pag malaki ang hinihingi mo, malaki rin ang
babayaran mo na docket fee. That is the procedure.
DOCKET FEE
And therefore, we will now go to the subject on
docket fee. In the study of Criminal Procedure, there’s a
portion there mentioning docket fees. Rule 111. Prosecution
of civil actions when the offended party is also claiming for
moral, exemplary, etc. damages. Try to review Rule 111, Sec.
1. That’s why in one bar examination, one of the interesting
question asked was: Distinguish the rules on payment of
docket fee in criminal cases from the rule on payment of
docket fee in civil cases. You cannot answer that for the
moment. But if what is asked is: What are the rules for the
payment of docket fee in criminal cases? You will be able to
answer that. Tapos na kayo ng Criminal Procedure. We will
start from the old case of:
MANCHESTER DEVELOPMENT CORP. vs. CA
149 SCRA 562 (1987)
The plaintiff filed a complaint. He
was asking for moral damages and other
damages but did not specify the exact
amount. So ang binayad niya na docket
fee kulang. The defendant questioned the
complaint and it was dismissed for non-
payment of the correct amount of docket
fee. The plaintiff amended his complaint.
Sinabi na niya ang amount. Gi-klaro niya
ba. “Bayaran ko ang kulang.”
Sabi ng SC: You cannot amend.
Your complaint remains dismissed. bakit?
The SC said: The court does not acquire
jurisdiction over the case until the complete
amount of docket fee is paid. In other
words, the correct amount must be paid.
“But I’m correcting it by amending my
complaint.” The SC said: No, it cannot be
corrected. You file it all over again. Bayad
ka all over again. Because the court has no
jurisdiction. If the court has no jurisdiction,
no amount of amendment can cure the
error.
Very harsh no? However, the SC, after reflecting on
what it said in the case of Manchester, realized the harshness
of their decision. So, there was the second case 2 years later,
the case of Sun Insurance where the SC modified the
Manchester ruling.
SUN INSURANCE OFFICE LTD vs. ASUNCION
170 SCRA 274
The SC said: Where the filing of the initiatory
pleading (hindi na complaint) is
accompanied by payment of the docket
fee, the court may allow payment of the
fee within a reasonable time but in no case
beyond the applicable prescriptive or
reglamentary period.
So, suppose, I will file a case. Ang bayad ko kulang
and then the other party questioned. O sige, I will pay the
balance. Pwede ba? Pwede na. Do not dismiss the case. In
other words, you can complete the payment within a
reasonable time but in no case beyond the applicable
prescriptive or reglamentary period. Ano ba yang “in no case
beyond the applicable prescriptive or reglamentary period”?
This is the situation. For example, my prescriptive period to file
the case is next month, December. I will file the case today.
Kulang ang bayad. Technically, the case is not deemed filed
today because kulang ang bayad eh. Now, one week from
now, I will complete the payment. Pwede? Yes, because
anyway, ang prescriptive period sa December pa naman.
But suppose the prescriptive period is Tuesday. I will
file the complaint today (Thursday) pero kulang ang bayad.
Now, is the complaint deemed filed? Has the prescriptive
deadline been met? No, because the filing of the case
without the correct payment of docket fee does not consider
the case filed. A complaint if filed only upon the filing of the
complete payment. Na-file ko ngayon pero I did not meet the
deadline. So, halimbawa, next week ko babayaran.
Kumpletuhin ko sa Biyernes. Too late! Because the action had
already prescribed the day before. Meaning, pwede mong
kumpletuhin ang bayad provided the filing of the case has not
yet prescribed. Because the filing of the case before the
prescriptive period without the correct payment is not a legal
filing within the meaning of the law. Yan... So sa case ng Sun
Insurance, at least, na-temper na. Pwede pang i-correct ang
error. Unlike in the case of Manchester, you cannot correct
your mistake.
Page 20 of 296
 The Sun Insurance is a leading case on docket fee. It
was followed with a third case in December 1989 which further
clarified the Sun Insurance ruling. This is the case of:
TACAY vs. RTC of TAGUM, DAVAO DEL NORTE
180 SCRA 433
The plaintiff filed a complaint in
Tagum before the sala of former Judge
Matas. The complaint - recovery of
possession of land (accion publiciana) with
damages. So, the docket fee is based on
the assessed value of the land. Plaintiff paid
the docket fee based on the assessed
value of the land. Came the Manchester
doctrine. The lawyer of the defendant filed
a motion to dismiss. The court has no
jurisdiction because the plaintiff did not pay
for the docket fee for the damages.
Dalawa ang hinihingi niya eh. Recovery of
land and damages. Binayaran ng plaintiff
ang docket fee sa accion publiciana case
hindi naman nabayaran yung docket fee
for the damages. So it should be dismissed.
(The Sun Insurance ruling has not yet come
out yet when the SC took up this case) Now
the RTC of Tagum refused to dismiss the
case. So, the defendant went to the SC on
that issue.
The SC said: Do not dismiss the
case. Just consider the damages as
deleted. Why will you dismiss the entire
case? The claim for damages must
automatically be deleted. Or the second
alternative, following the Sun Insurance
ruling, give him a reasonable time to
complete the payment of docket fee.
Said the SC: Where the action involves real
property and a related claim for damages
as well, the legal fee shall be assessed on
the basis of both (1) the value of the
property, and (2) the total amount of
related damages. So, if the fees prescribed
in no. 2 are unspecified, the action may not
be dismissed. What should be done is
simply (1) to expanse those claim for
damages and (2) allow on motion a
reasonable time for the amendment of the
complaint so as to allege the precise
amount of each item of damages and
accept payment as the requisite fees
therefor.
Now, there are other interesting cases on the issue on
docket fees.
FILIPINAS SHELL PETROLEUM CORP. vs. CA
171 SCRA 674
The plaintiff Adrian dela Paz sued
practically all oil companies in the country.
His claim - infringement of patent with
prayer for payment of reasonable
compensation and for damages. What he
was trying to say was meron daw siyang na-
imbento, patented. But these companies
used his invention for their operations and
he was not paid a single centavo.
Therefore, he filed a case against them for
royalty. He estimated the yearly royalty due
him to be P236T plus. Now, he was claiming
several years. So palagay natin, aabot ng
P20 to P30M. The trial court ordered dela
Paz to pay the amount of P945T as docket
fee. Almost P1M din. Pero sabi ni dela Paz,
wala man akong pera. Pwede ba, I will pay
later? Okay, said the trial court. You can
file the case and pay the docket fees after
the prosecution of the case. Pag-tapos na
ang kaso deductible from whatever
judgment in damages shall be awarded by
the court. So, pinayagan ng court. File
now, pay later, no. The defendant
questioned that. You cannot do that.
Walang file now, pay later.
The SC said: The trial court is
wrong. There is no such thing as utang sa
gobyerno. No justification can be found to
convert such payment to something akin to
a contingent fee which would depend on
the result of the case. The court would
stand to lose the filing fees should the party
believe that a judgment to be not entitled
to any claim at all.
Ano ba yang contingent fee? In legal ethics, pwede
yan sa abogado. Attorney, will you handle my case? Wala
akong pera. I will offer a contingent fee. Okay, I’ll handle your
case. Pag-talo, wala kang utang. Pag panalo, kalahati sa
akin. Pwede yan. Pero sa gobyerno, wala yan. Sabi nga ng
SC: Eh, kung matalo ka sa kaso? The case is dismissed. Tabla
ang gobyerno? Di pwede yan. Filing fees are intended to
cover court expenses in the handling of cases in terms of cost
of supplies, use of equipment, salaries and fringe benefits of
personnel, etc. computed as to man-hour use in handling of
these cases. The payment of said fees cannot be made
dependent on the result of the action without entailing
tremendous loses to the government and the judiciary in
particular.
LACSON vs. REYES
182 SCRA 729
A case is filed by A against B. The
case is terminated. A, plaintiff, ayaw
bayaran ang kanyang lawyer. So the
lawyer filed a motion in court. Motion to
order A to pay him his fees for professional
services rendered. When the lawyer filed
his motion in court, the Clerk of Court
assessed his docket fees. The lawyer
complained. I am not filing a case. Motion
lang. Pati ba naman motion, may docket
fees? Is the argument correct?
SC: No, bayad ka uli. Because it
may be true that the claim for attorney’s
fees was but an incident in the main case.
Still it is not an excuse to escape payment of
docket fees. Because in all actions,
whether separate or an option to a pending
proceeding, the payment of the docket fee
is mandatory. The docket fee should be
paid before the court would validly act on
the motion.
So even a motion for payment of attorney’s fees was
subjected to filing fees under Sec. 32. So to sum up, in
determining the jurisdiction of the court, damages, interest,
claims for litigation expenses are not included. But still , you
must allege the amount of damages you are claiming. Why?
Because you must pay the court the correct amount of
docket fees. The payment of docket fees is a jurisdictional
requirement. The court does not acquire jurisdiction over the
case until the full amount of docket fee is paid.
Page 21 of 296
 Of course, if you will ask the question: When does the
court acquire jurisdiction over the subject matter of the case?
Answer: Upon the filing of the complaint. But that assumes
that when you file the case, the docket fee is completely paid.
So, for example, today, I go to court. I file a complaint and
then the court will receive that and will stamp “Received Nov.
14, 1997.” How much do I pay? The docket fee is P1000. But I
have only P800. Pwede ba ang kulang na P200 sa Monday
na lang? Okay. They will agree. So, on Monday, Nov. 17, I will
come back and pay the balance. The court will issue to me a
receipt for full docket fee payment. From the legal viewpoint,
when was the complaint filed? Nov. 14, when my complaint
was filed and received? No. The complaint was legally filed
on November 17. That is important sometimes because of
possible prescription. Can you imagine if today is your last day
of filing, then na-meet mo ang deadline pero kulang ka ng
pera. Bayaran mo Monday. Actually, your case already
prescribed because your complaint is not considered filed until
the full amount if paid.
Now, the last clause in Sec. 33, par (1) reads:
Provided further, That where there are
several claims or causes of actions between
the same or different parties, embodied in
the same complaint, the amount of the
demand shall be the totality of the claims in
all the causes of action, irrespective of
whether the causes of action arose out of
the same or different transactions.
We will illustrate that. In 1994, B secured a loan from
A in the sum of P50T. There’s a promissory note on that. The
following year, 1995, B secured a second loan from A. Another
P50T. Dalawa na. And then, last year, 1996, B secured
another loan from A in the amount of P50T. So, 3 loans. This
year, 1997, all 3 obligations became due and payable and B
refused to pay. So, total utang ni B from A is P150T. Now, A
approaches you and tells you his problem. He has hired you
as his lawyer to file a case against B. Question: How many
complaints can A file against B?
Answer: he can file 3 complaints because every unpaid loan
is one cause of action. So, if the lawyer of A will file 3
complaints, where will he file them? Obviously sa MTC
because the amount of each loan is only P50T. However,
according to the lawyer, isahin natin. Anyway, it’s the same
plaintiff, same defendant, the nature of the action - utang. So,
one complaint na lang. So, I will file a complaint to collect 3
loans. Is that allowed? That is also allowed. As we shall see in
Rule 2, that is the practice of joinder of causes of action.
Pwedeng pagsamahin rather than filing 3 complaints. So,
there is one complaint embodying the 3 claims.
Question: Where will the lawyer file the complaint? If you will
look at every individual claim - P50T. But if you add the 3 -
P150T. So, what will now be the basis of the jurisdiction of the
court? The amount of each claim or the total of the 3? What
does Sec. 33 say? “Where there are several claims or causes of
actions between the same or different parties, embodied in
the same complaint, the amount of the demand shall be the
totality of the claims in all the causes of action, irrespective of
whether the causes of action arose out of the same or
different transactions. So, total amount of P150T. So, i-file sa
RTC. That is called the Totality Rule in determining the
jurisdictional amount. But why should we add the 3 when
these are separate or different transactions? Well, the law says
, irrespective of whether the causes of action arose out of the
same or different transactions.
Now, you will notice here that there are 3 claims here
belonging to one plaintiff against the same defendant.
Suppose the claim belongs to different parties? A, B and C
were riding on a public vehicle owned by X & Co., the
operator. Then they met an accident and A, B and C were
hospitalized. They decided to file damage suit against the
operator arising from breach of contract of carriage (culpa
contractual). Now, A claims that he suffered damages
amounting to P50T representing the cost of medicine, doctor,
hospitalization, lost income, etc. B also claims P50T. C also.
So, 3 causes of action of A, B and C amounting to P50T each.
A can hire a lawyer and file a case against X & Co. for
damages. But suppose, they’ll say, “Sama-sama na tayo.” So,
they approach Atty. W. Sabi ni Atty. W, isang complaint na
lang. Para one time. Anyway, the nature of the action is
identical. So, A, B and C vs. X & Co.
Question: Where will Atty. W file the action? Should he
consider the amount of each claim or should he consider the
totality of the 3 claims? Answer: The same. You apply the
totality rule because the law applies even with different
parties. So, that is the manner in determining jurisdiction of the
court over money claims when they are joined together in one
action.
So that is Sec. 33 par (1). We will now go to par (2).
Exclusive original jurisdiction over cases of
forcible entry and unlawful detainer:
Provided, That when, in such cases, the
defendant raises the question of ownership
in his pleadings and the question of
possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to
determine the issue of possession.
This is related to your study on Property. Actually,
unlawful detainer and forcible entry cases are civil actions for
the recovery of the physical possession of property which
should not be confused with accion publiciana which is also
the recovery of possession but that is a better right. The best
example of forcible entry is squatting. When a group of
squatters entered your property and occupied it through
force, intimidation, threat - forcible entry. An example of
unlawful detainer is when you want to eject somebody who is
leasing your apartment. Ayaw magbayad ng rental. so I will
eject you. So, these are ejectment cases. And the MTC has
exclusive original jurisdiction over these types of cases. That is
even found in Sec. 19 par (2) on the jurisdiction of the RTC. In
other words, basta unlawful detainer, automatic, MTC.
regardless of the value of the land.
Here’s a problem. You own a building. Somebody
rented a space. P50T per month. He’s been occupying the
building for 4 months na pero hindi nagbabayad. So, and
delinquent niya P250T in 5 months. You decide to file a case
for unlawful detainer against him. Of course, you are not only
interested in ejecting him but you would also want to collect
his back rentals. So, a case for unlawful detainer and
collection of back rentals of P250T plus another P50T for every
month until he is ejected from your property. Where will you file
the complaint? The unlawful detainer case will be filed in the
MTC. How about the back rentals? MTC rin. Question: Can
the MTC grant the back rentals which is now amounting to
P.25M? Yes. Akala ko ba ang jurisdiction ng MTC up to P100T
lang? Yes. Regardless of the amount of the back rentals for as
long as the action is for unlawful detainer. MTC still has
jurisdiction. The rental is only incidental.
Now, in an action for forcible entry or unlawful
detainer, the issue to be resolved is only the issue of possession.
Who is entitled to possess the property? The issue of ownership
cannot be litigated. But the law says, “Provided, That when, in
such cases, the defendant raises the question of ownership in
his pleadings and the question of possession cannot be
Page 22 of 296
resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of
possession. Because sometimes, in a forcible entry case, we
are talking of possession. But sometimes, it is very hard to
determine possession without determining first ownership. But
in a forcible entry case, ownership is not an issue. It is only
possession. But, kailangan man din.
Alright. Now, under the law, the MTC can determine
ownership but only for the purpose of resolving possession. It is
not a final decision on who is really the owner. It is only
incidental ba. But I want to quarrel on the issue of possession.
Then you must file another case in the RTC. Yan... The issue of
ownership has to be litigated in another case to be filed in the
RTC because it cannot be resolved in a forcible entry or
unlawful detainer case. Only the issue of possession which is
even governed by the Summary Rules. I repeat, the issue of
possession is only prima facie to resolve the issue of ownership.
The issue of ownership is to be resolved only for the purpose of
resolving the issue of possession. But the real issue of ownership
has to be resolved at the right case to be filed in a proper
court. That is what par. (2) is talking about. Let us now
proceed to the third paragraph of Sec. 33:
Sec. 33 (3) Exclusive original jurisdiction in
all civil actions which involve title to, or
possession of, real property or any interest
therein where the assessed value of the
property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in
civil actions in Metro Manila, where such
assessed value does not exceed Fifty
thousand pesos (P50,000.00) exclusive of
interest, damages of whatever kind,
attorney’s fees, litigation expenses and
costs: Provided, That in cases of land not
declared for tax purposes, the value of such
property shall be determined by the
assessed value of the adjacent lots. (As
amended by RA 7691)
This was inserted in 1994 by RA 7691 which expanded
the jurisdiction of the MTC. Prior to RA 7691, MTCs cannot hear
accion pucliciana or reivindicatoria cases. RTC yun eh. The
only real actions which can be resolved by the MTC are
forcible entry and unlawful detainer actions. Now, because of
RA 7691, MTCs are now given the authority to hear accion
publiciana and accion reivindicatoria cases but the condition
is that the assessed value of the real property should not
exceed P20T. In Metro Manila, P50T. Halimbawa, the lupa was
never declared for taxation purposes. We know that the
assessed value is usually based on the assessment of the
provincial or city assessor’s office. Yung mga tax declarations,
ba. Your remedy is to look at the adjacent lots. What is the
assessed value of the adjacent lots? Yun ang basehan. That is
the last type of civil action falling within the original jurisdiction
of the MTC.
Under the Judiciary Law, the MTC has three (3) types
of jurisdiction. These are:
1. Sec. 33 (Ordinary Regular Jurisdiction)
2. Sec. 34 (Delegated Jurisdiction), and
3. Sec. 35 (Special Jurisdiction)
B. Jurisdiction of the Municipal Trial Court:
DELEGATED JURISDICTION
Sec. 34. Delegated Jurisdiction in Cadastral
and Land Registration Cases. - MetTCs,
MTCs and MCTCs may be assigned by the
SC to hear and determine cadastral or land
registration cases covering lots where there
is no controversy or opposition, or contested
lots where the value of which does not
exceed One hundred thousand pesos
(P100,000.00) [now P300,000], such value to
be ascertained by the affidavit of the
claimant or by agreement of the respective
claimants if there are more than one, or
from the corresponding tax declarations of
the real property. Their decisions in these
cases shall be appealable in the same
manner as decisions of the RTCs.
(Amended by RA 7691)
Alright. Delegated jurisdiction in cadastral and
registration cases. These are related to your study of Land,
Titles and Deeds. The Property Registration Decree. from what
you’ve learned, what is the object of an ordinary land
registration proceeding or a cadastral proceeding? When
you file a petition for land registration, what is the object? So
that your property will be registered and fall under the Torrens
System of the Land Registration. May titulo ba! Pag walang
titulo, mahirap. You can own a piece of land sa bukid pero
walang titulo. Tingnan natin kung may bibili niyan. So, the
object is to have your property titled. That is also the object in
a cadastral proceeding.
Now, what is the difference between a land registration
proceeding and a cadastral proceeding? Cadastral is
compulsory registration. If you will call people one by one to
have their property titled, if every owner will take his initiative of
having his property titled, siguro for the next 300 years, all
property titulado na. Because Filipinos are complacent. They
don’t care basta they are occupying the land. But the
government as much as possible, would want to have all
property titled. Kaya nga, what the government will do, it will
require the Director of Lands mag-file ng cadastral. For
example, like what happened in the early 20s, based on the
history of Davao, the entire Matina was subjected to a
cadastral proceeding. If you claim that you own this, you
come forward and claim it. If you will not, we will declare it
government property. So, obligado kayo lahat. Kaya nga
compulsory titling.
Under the Property Registration Decree, which court
has jurisdiction to entertain titling? Only the RTC. MTCs have
no authority. However, Sec. 34 says that the SC may authorize
an MTC to hear and decide land registration or cadastral case
provided that the property to be titled is uncontested.
Nobody is questioning. Or even if the ownership is contested,
the value of the property is only P300T or less.
Example: Davao del Sur. Ang mga RTCs diyan nasa Digos
halos lahat. If your real property is in Jose Abad Santos, you
don’t have to go to the RTC in Digos. Aba, malayo yan eh.
The SC may authorize the MTC in Jose Abad Santos to hear the
case. But again, the conditions must be met. The property is
not contested. Or, even if contested, the value of the
property is only P300T or less. So, the MTC will render a
decision. And whoever is not satisfied with the MTC’s decision
can appeal directly to the CA. Why in the CA and not RTC?
Because here, the MTC is acting like an RTC. The law says the
decisions in these cases should be appealable in the same
manner as decisions of the RTC. So, you understand now
delegated jurisdiction?
Now, do not confuse Sec. 34 with Sec. 33. The value
of the property in Sec. 34 is P300T. In Sec. 33, which deals on
accion publiciana or reivindicatoria cases, the value of the
property should not exceed P20T. Remember, Sec. 34 involves
land titling, land registration and cadastral cases. Yung sa
Sec. 33, civil case yun eh so P20T lang and value. So, take note
of that.
Page 23 of 296

C. Jurisdiction of the Municipal Trial Court:
SPECIAL JURISDICTION
The last jurisdiction of the MTC is Sec. 35, the so-called
special jurisdiction. That was not amended by the Judiciary
Law.
Sec. 35. Special jurisdiction in certain
cases. - In the absence of all the Regional
Trial Judges in a province or city, any
Metropolitan Trial Judge, Municipal Trial
Judge, Municipal Circuit Trial Judge may
hear and decide petitions for a writ of
habeas corpus or applications for bail in
criminal cases in the province or city where
the absent Regional Trial Judges sit.
Does the MTC have jurisdiction over habeas corpus?
No, RTC yan. But here is the question: A petition for habeas
corpus is filed in the RTC because somebody is illegally
detained. The trouble is, the judge is on leave. It happened 7
years ago where all of the judges attended a convention. So
wala talaga maski isang judge. So what happened to the
habeas corpus? Petitions for Habeas corpus are urgent
petitions because you are talking of the liberty of a person
here. You mean to tell me that the Clerk of Court will say,
“Hintay lang kayo. May convention kasi ang mga judges.
Next week pa ang balik.” My golly! Hindi pwede yan. Now,
under Sec. 35, the MTC can take over and hear the case.
Acting ba. This is what a special jurisdiction is.
Now, if the RTC judges come back and resume work,
ibalik mo doon. Para acting ka lang eh. Special jurisdiction
lang yon, while the RTC judge is absent. How about in criminal
cases? A petition for bail, for instance. Who will hear the
petition for bail to determine whether the evidence of guilt is
strong or not when all the RTC judges are not around? Again,
because of the emergency of the nature of the petition, the
MTC judge can take over.
That takes care of the law on jurisdiction.
End of Jurisdiction of MTC
REMEDIAL LAW
Remedial Law vs. Substantive Law
We will now proceed to Remedial Law itself. First,
before we take up Civil Procedure, let us give a definition of
Remedial Law. Laws are classified as either Remedial or
Substantive Law. Remedial Law is also known as Adjective or
Procedural Law. They are synonymous. The word remedial is
taken from the word remedy. How do you define Remedial
Law in general, whether it is civil procedure, criminal
procedure or any of the other branches of remedial law?
Remedial Law may be defined generally as that branch of law
which prescribes the method of enforcing rights or obtaining
redress for their invasion.
On the other hand, Substantive Law in general is that branch
of law which creates, defines and regulates rights.
So, the basic difference is, while Substantive Law creates rights,
it is Remedial Law which prescribes the method of enforcing
those rights in the courts of justice. Because knowledge of
Substantive Law is incomplete without the knowledge of
Remedial Law. You may know all your rights in the world but if
you do not know how to enforce them, it’s useless.
Like in the civil case, my neighbor borrowed from me but until
now, despite several demands, he refused to pay. Under the
law on Obligations and Contracts or Credit Transactions, you
have the right to collect. But how do you collect? By writing a
letter to the Judge? Dear Judge... By calling him on the
phone? There must be a procedure. That is where the Civil
Code leaves you behind and that is where the Rules of Court
will take over.
Of course, the two laws are symbiotic. They
complement each other. They go together hand in hand in
harmony. In one case, the SC , more or less explained the
symbiotic relationship between Substantive Law and Remedial
Law.
DE DIOS vs. CA
212 SCRA 519 (1992)
Procedural laws are designed to
ensure the orderly and expeditious
administration of justice by providing for a
practical system by which the parties to a
litigation may be accorded a fair and full
opportunity to present their respective
positions and refute each other’s
submissions under the prescribed
requirements, conditions and limitations.
Adjective Law is not their counterfoil of
Substantive Law. In fact, there is a
symbiotic relationship between them. By
complying faithfully with the Rules of Court,
the bench and the bar are better able to
discuss, analyze and understand substantive
rights and duties and consequently to more
effectively protest and enforce them.
2 Aspects of Remedial Law
Remedial Law has 2 aspects - Public Remedial Law
and Private Remedial Law. How do you distinguish one from
the other? Public Remedial Law is that portion of Remedial
Law which affords a remedy in favor of the state against the
individual or in favor of the individual against the state.
Example of the remedy of the state against the individual is
the Rules on Criminal Procedure. Example of remedy of an
individual against the state is the Rule on Habeas Corpus (Rule
102).
On the other hand, Private Remedial Law affords a
remedy in favor of an individual against another individual.
Example is Civil Procedure. Most litigations are between
private people. Between debtor-creditor, between neighbors,
members of the family involving credit transactions, property,
etc. Practically majority of the cases involves private person
vs. another private person.
A Brief History of the Laws on Civil Procedure
So, we now go to Civil Procedure in particular. First,
we will give a brief history of the Rules of Civil Procedure.
Meaning, the origin of the laws of Civil Procedure. The
Philippine laws on Civil Procedure is patterned after American
Law and not the Spanish Law during the Spanish Era. The first
law on Civil Procedure, the great-grandparent of our present
law was Act 190 (Code of Civil Procedure) enacted in August
07, 1901 during the American Regime. The provisions of Act
190 were the law on Civil Procedure until July 01, 1940 when
the SC enacted the Rules of Court which we now call the Old
Rules of Court. This law lasted for 24 years until January 01,
1964 when the SC enacted the new or Revised Rules of Court
which took the place of the 1940 Rules of Court. Of course,
the 1964 Rules of Court became effective for more than 30
years until July 1, 1997 with the enactment of the 1997 Rules on
Civil Procedure which again replaced the provisions of the
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1964 Rules. That, in a nutshell, is the brief history of the law on
Civil Procedure in the Philippines.
Rule-Making Power of the SC
Now, which body or entity enacted the Rules of
Court? The Supreme Court. The basic question in Political Law
is whether the SC has the power to make a law. Under the
doctrine of separation of powers, the legislative branch makes
the laws. So, what is the constitutional basis for the enactment
of the Rules of Court by the SC? The power of the SC It is taken
from the Constitution ands that is called the rule-making power
of the SC under the 1935 Commonwealth Constitution which
became the basis for the enactment of the 1964 Rules was
formerly Art. VIII, Sec. 13. When it was replaced by the 1973
Constitution, the rule-making power of the SC was retained in
Art. X, Sec. 5, par. (5). And when the 1987 Constitution took
effect, it is still there and this became the basis for the
enactment of the 1997 Rules, the so-called 1985 Rules on Civil
Procedure. The language is identical only there were some
changes. The provisions are getting longer and longer. But
the basic language is still the same.
Promulgate rules concerning the protection sand
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of case, shall
be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.
(Art. X, Sec. 5, par. (5))
To be brief, the SC has the power to promulgate rules
concerning proceeding, prosecution and practice. That is
the important part there. The 3 Ps. That is the basis of the SC’s
power to enact the Rules of Civil Procedure and other portions
of the Rules of Court.
Limitations to the Rule-Making Power
On the other hand, the rule making-power of the SC
under the Constitution is not absolute. There are limitations
which are also found in the same provision. These are:
The SC rules shall provide a simplified and inexpensive
procedure for the speedy disposition of case,
 The rules shall be uniform for all courts of the
same grade, and
 The rules shall not diminish, increase, or
modify substantive rights.
So, the rules must be simplified and inexpensive for
the speedy disposition of cases. On the second limitation, it
would be so difficult and frustrating if we have rules in
Mindanao different from that in Luzon or Vises. Samoa kayo.
There will be confusion. There may be different interpretations
of the rules by judges but the rules are supposed to be uniform.
Kaya nga, the SC comes out with judicial policies. This is not
another rule. It is the same rule interpreted differently. The
third limitation is important. Substantive rights which are
granted by Substantive Law cannot be diminished, increased
or modified by the Rules of Court. Otherwise, the provisions of
the Rules of Court will be unconstitutional. in other words, the
Rules of Court cannot amend Substantive Law.
Sources of 1997 Rules of Civil Procedure
What are the sources of the present Rules? There are
3:
Provisions of the 1964 Rules. As a matter of fact, may of the
provisions are taken from the 1964 Rules either verbatim or with
just a few amendments.
Decisions of SC interpreting the 1964 Rules are now
incorporated in the new Rules. Instead of relying on the SC
doctrines.
Some of the provisions in the Civil Code and the Family Code
are the third source. We are now ready to start tackling the
1997 Rules of Civil Procedure.
Rule 1
GENERAL PROVISIONS
Let us now go to Rule 1 on General Provisions.
Sec. 1. Title of the Rules. - These Rules shall be
known and cited as the Rules of Court. (1)
Sec. 2. In what courts applicable. - These Rules
shall apply in all courts, except as otherwise provided
by the Supreme Court. (n)
Sec. 1 just gives us the title of the Rule. Sec. 2
mentions where the rules are applicable. A good example is
the Summary Rules. Under certain situations in the MTC, for
instance, what is applicable is not the Rules of Court but the
rules on Summary Procedure because the SC has said so.
Sec. 3. Cases governed. - These Rules shall
govern the procedure to be observed in actions, civil
or criminal, and special proceedings.
So, the Rules of Court covers three (3) types of
proceeding: a civil action, a criminal action and special
proceedings. When the 1997 Rules came out, there was a
lawyer who asked me: Bakit kasama itong criminal sa cases
covered? I thought these are the Rules of Civil Procedure.
How come even criminal cases are covered? I said, no. Rule
1, entitled General Provisions, describes the entire Rules of
Court. It is not only describing civil cases. The General
Procedure is intended not only for civil procedure but up to
the end of the Rules. If you will notice, the numbering of the
Rules is in sequence. Criminal Procedure, for instance, starts
from Rule 110 up to 144. The SC has intended the subject to
be numbered consecutively.
Civil Actions
а) 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. (1a, R2)
So, that is the purpose of a civil suit. To enforce or
protect your right or you sue somebody for the purpose of
preventing or redressing a wrong. I think that is common
sense. Civil action. Sa tagalog, demanda. Sa bisaya, kiha.
Now, of course, we are not interested in criminal actions. That
is the domain of Criminal Procedure.
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 So, what is a civil action? 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.
Classifications of Civil Actions
What is so important in distinguishing a special civil
action from an ordinary civil action? The Rules on ordinary civil
action also apply to special civil actions although special civil
actions are governed by certain specific rules that do not
apply to ordinary civil actions. The law says, “Both are
governed by the rules for ordinary civil actions, subject to the
specific rules prescribed for a special civil action”.

A civil action may either be ordinary or special. Both

are governed by the rules for ordinary civil actions,
subject to the specific rules prescribed for a special II. Classifications of Civil Actions: AS TO THE
civil action. (N) CAUSE OR FOUNDATION

Real vs. Personal

1. As to the nature of the civil action

Ordinary or. Special As to the cause or foundation, a civil action is either a
2. As to cause or foundation real action or a personal action. What is the difference?
Real or Personal or Mixed According to the SC, a real action in a civil action is founded
on privity of real estate. Another way of saying it, an action is
3. As to place of filing the action Local real if the issue or the subject of the suit is title or ownership or
or Transitory possession or interest of a real property. So, a good example is
lupa. We are quarreling over the ownership or possession or
4. As to the object
interest over a real property. So, that is a real action. So, ano
Action in Personam,
yan? Accion reinvidicatoria. Recovery of possession of a
Action piece of land. Or accion publiciana. Forcible entry, unlawful
in Rem or Action Quasi in Rem detainer. These are also real actions because they involve
possession of real property. Or partition of a land by the co-
owners.

I. Classifications of Civil Actions: AS TO THE

NATURE OF THE CIVIL ACTION
Ordinary vs. Special
As to the nature of a civil action, a civil action is
either ordinary or special. How do you determine whether a
civil action is ordinary or special? Answer: For special civil
actions, they are governed by Rules 62-71. That is why, all you
have to do is to look at the Table of Contents of the Rules of
Court and look at the title of every rule:
Now, how about personal actions? A personal
action is one which is founded on privity of contracts or on
quasi-delict. Or actions where there is no issue governing the
ownership or title or possession or interest over a real property.
Examples: An action to collect an unpaid loan. An action to
collect damages arising from quasi-delict or culpa aquiliana.
An action for specific performance. Annulment of a contract.
Enforcement of a contract. An action for support. An action
for annulment of marriage. These are what you call personal
actions.
Mixed Actions

Rule 62 Interpleader
Now some text writers give a third classification which
Rule 63 Declaratory Relief & Similar Remedies is optional. We call it a mixed action. So, this is an optional
classification, where there is a mixture of real and personal
Rule 64 Review of Judgments, Final Orders or
actions. The best example is an action to recover a piece of
Resolutions of Comelec & COA land with damages. So, there is the issue of damages which is
personal and there is also the issue of recovery of land. Like
Rule 65 Certiorari, Prohibition, Mandamus the case of TACAY which we mentioned in the law on docket
Rule 66 Quo Warranto fee. Because there, the plaintiff filed a case for recovery of a
piece of land with damages. Kaya nga the defendant
Rule 67 Expropriation questioned it because plaintiff did not pay the docket fee for
the damages. He only paid for the docket fee based on the
Rule 68 Foreclosure of Real Estate Mortgage
assessed value of the land to be recovered.
Rule 69 Partition
Rule 70 Forcible Entry & Unlawful Detainer
Now, why is it an optional classification? Because,
Rule 71 Contempt when you file an action to recover a piece of land with
damages, there is a primary object and there is the secondary
object. If the primary object is to recover the land, and the
damages are only secondary, it is more of a real action. In
other words, the personal aspect is only secondary. That was
These are the special civil actions. Any civil action what happened in the case of TACAY. The main purpose
not among those mentioned is ordinary. Examples: An action there was to recover the land. The claim for damages is
to collect a sum of money, damages, legal separation, secondary. Kaya nga he never even bothered to pay the
annulment of marriage, support, accion publiciana, accion docket fee. So, that is a classification which is optional.
reinvidicatoria, etc.

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III. Classifications of Civil Actions: AS TO THE
PLACE OF FILING THE ACTION
Local or Transitory
As to place of filing the action, an action is either a
local action or a transitory action. How do you distinguish one
from the other? A local action is one which must be brought in
a particular place. A transitory action is an action which
follows the party wherever he may reside.
So, if an action in a civil case can only be filed in a
particular place, let us say, Davao, then the action must be a
local action. A good example of local actions are real
actions. Real actions are local actions. The issue is ownership
or possession of real property like forcible entry or accion
publiciana. As we shall see in Rule 4, if you want to file a case
to recover a piece of land, you must file it in the place where
the land is situated. So, for example, we are both from Davao
City but I want to recover from you the ownership of a piece
of land in Mati, Davao Oriental. I must file the case there. I
cannot file it here. Because that is a local action.
On the other hand, a transitory action is one which
follows the party wherever he may reside. It is based on the
residence of the party. Personal actions are generally
transitory actions. For example, I want to sue you for damages
arising from a vehicular accident. I am residing in Davao City.
If I decide to sue you tomorrow, I can sue you in Davao City
because this is where I reside. Suppose I decide to postpone
the filing. And then next year I move to Zamboanga City.
Then I finally decide to sue you. Can I file the case in the court
of Zamboanga City because I am now a resident of
Zamboanga City? Yes. That is what you call transitory action.
It is based on the residence of the parties.
IV. Classifications of Civil Actions: AS TO THE
OBJECT OF A CIVIL ACTION
Action in Personam vs. Action in Rem
This should not be confused from real and personal
actions. An action in personam had been explained by the
SC in some cases.
If the physical object of the suit is
to establish a claim generally against some
particular persons with a judgment which in
theory at least binds his body or to bar some
individual claim or objection so that only
certain persons are entitled to be heard, the
action is in personam. But if the object of
the suit is to bar indifferently all who might
be minded to make an objection of any
sort against the rights sought to be
established and if anyone in the world has a
right to be heard on the strength of alleging
facts which show an inconsistent intent, the
action is in rem.
Did you understand that? Magulo ano? We will
simplify the language. This is what the SC is saying: If the
judgment you are seeking to obtain in the case, the judgment
binds only you and me or maybe your successors-in-interest
but does not bind somebody who is not a party to the case,
that is an action in personam. But if the judgment in the case
binds not only the parties but the whole world, or even those
who are not parties to the case, then the action is in rem.
In 1990, the SC came out with a simpler definition or
distinction between the two in the case of :
CHING vs. CA
181 SCRA 9
Actions in personam and actions in rem differ in
that the former are directed against specific persons
and seek personal judgment while the latter are
directed against the thing or property or status of a
person and seek judgment with respect thereto
against the whole world.
So, if the judgment binds only the parties to the case
and does not bind persons not parties to the case, that is in
personam. But if the judgment binds the whole world,
including those who are not parties to the case, that is
judgment in rem
I will file a case against Pedro over a piece of land.
So we are quarreling on who is entitled to ownership. After
trial, I won. The court says I am entitled to the possession of the
land. Tapos na. Now, one or two years later, you claim that
you are entitled to the possession of the land because you
have a superior right. So, you file a case against me to
recover again the same piece of land. Now, sabi ko, you
cannot file. Tapos na yon. Because two years ago, there was
a case between me and Pedro. Yun din ang pinag-awayan
namin, eh. And there is a decision in that case that I am
entitled to the possession. Therefore, wala ka ng kaso.
Now, I ask you. Do you think you are bound by the
decision in the case between me and Pedro? No, because
you were never a party to the case. Hindi ka naman kasali sa
kaso namin. Sa amin lang yun. Between Pedro and me, I am
entitled to the possession. But for all you know, you might have
a better right than me. So the action is in personam. It does
not bind you.
In an action in rem, here’s an example. H and W
filed an action for annulment of marriage. The same was
granted. H has now found a new love and proposes marriage
to Y. But Y refuses to accept the proposal of marriage by H,
saying that he is very much married. H now shows the
judgment where that the marriage had been declared as
annulled by the court. Sabi ni Y: Hindi man ako kasali diyan. I
am not a party to that case. It does not bind me.” Naloko na.
In other words, an action for annulment of marriage, for
instance, is an action in rem because the judgment binds the
whole world, including those who are not parties to the case.
Action Quasi in Rem
Now, there is another classification, an action quasi in
rem. You know the meaning of the word quasi? Quasi-delict.
Quasi-contract. Meaning, almost. Almost in rem. Almost a
delict. Almost a contract. How do you define an action quasi
Page 27 of 296
in rem? In an action quasi in rem, an individual is named as
defendant and the purpose of the proceeding is to subject his
property to the obligation or lien burdening it. It is a
proceeding having for its object the sale or other disposition of
the property of the defendant. That is the concept of an
action quasi in rem.
I will file a case against you and the purpose of the
case is to subject your property to a particular lien burdening
it. The object of the case is to have your property sold or
disposed of in order to satisfy my lien. The best example is an
action for foreclosure of mortgage. So if you borrow money
from me, then you mortgage your land as security for the loan,
and then you cannot pay, I will file an action against you for
foreclosure of mortgage. What is the object of the suit? That
your property be sold and the proceeds should be paid to me
to satisfy your loan. That is foreclosure of mortgage, one of the
special civil actions governed by Rule 68 of the Rules of Court.
That’s a good example of an action quasi in rem. It is actually
an action in personam because the judgment is valid
between the parties. It is against an individual. But it is almost
in rem because it binds the property. That is why one
commentator described an action quasi in rem as an action
against the person with respect to the res. So, more or less with
that explanation, that completes our discussion on classes of
civil actions.
So, let’s continue with Sec. 3. Never mind par (b)
about criminal cases.
b) A criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law. (n)
Now, according to Sec. 3, there are 3 types of
proceedings under the Rules. Civil actions, criminal actions,
and special proceedings. Now, what is a special proceeding?
That is par. (c):
c) A special proceeding is a remedy by which
a party seeks to establish a status, a right, or a
particular fact. (2a, R2)
Now, where can we find special proceedings?
Special proceedings are covered by Rules 72-109 of the Rules
of Court, just before Criminal Procedure. That is a third year
subject offered in the 2nd semester.
Civil Action vs. Special Proceeding
The fundamental question which is often asked in the
bar from time to time, it keeps recurring, the last time was last
year, is: Distinguish a civil action from a special proceeding.
Of course, the main distinction is found in Sec. 3 itself. 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, whereas, a special proceeding is a remedy
by which a party seeks to establish a status, a right, or a
particular fact.
That is the first distinction. Another distinction is, in a
civil action, there are two (2) definite and particular adverse
parties. The party who demands a right, called a plaintiff, and
the other whom the right is sought, called a defendant.
Whereas, in a special proceeding, while there is a definite
party petitioner, there is no definite adverse party as the
proceeding is usually considered to be against the whole
world. Let’s try to illustrate that.
A creditor would like to collect an unpaid loan from
his debtor. So, he will file a case against him to collect a loan.
A, plaintiff vs. B, defendant. What do you call that? That is a
civil action. If you will notice, the creditor is suing the debtor
for the enforcement of a right to collect the loan. Then, it is
adversarial. There are 2 definite parties. A against B. There is
one suing another.
In a special proceeding, it is different. A good
example is a petition for adoption. In your study of Persons,
how do you describe adoption in general? In adoption, we
want to create a relationship between parent and child.
Between 2 people who are not even related to each other.
Or, pwede man din ba where your child is illegitimate and you
want to raise the status of the child to that of a legitimate
child. Kaya nga, there was a beautiful description in one
article where the author said:
Adoption is one of the sacred
mysteries of the law. It could result(?)
in the making of a natural person as a
legitimate child of another person
without the intervention of sex. A man
becomes a father of the child he did
not sire. A woman becomes the
mother of a child she did not bear. It is
through the magic or fiction of the law
that adopters become parents of
children unrelated to them by blood,
or if related, the relationship is one of
illegitimacy.
So, when you file a petition for adoption, you are not
suing somebody to enforce or protect a right or prevent or
redress a wrong. What is the object? As defined, a special
proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. The purpose is to create a
status of parent and child. Between 2 people who are not
related to each other. And when you file a petition for
adoption, you are not filing a case against anybody. You do
not say A vs. B. Wala ka namang kalaban, eh. Yes, there is a
petitioner, the one who files, but there is no definite party. But
it is directed against the whole world. You know why?
Because once the adoption is granted, then, as far as the
whole world is concerned, they have to respect the status that
this is now your child. Kaya nga, it is in rem. Generally, special
proceedings are in rem.
But since it is directed against the whole world,
anyone in the world can come forward and oppose the
petition. Yan. Kaya nga may publication. You go to court
and file your opposition. It is directed against the whole world,
so wala kang kalaban na particular person. But in reality,
anybody in the world can come forward and oppose it. That’s
the difference between a special proceeding and a civil
action.
Alright. The third distinction which is also an offshoot
of the our discussion is that a civil action requires the filing of
formal pleadings whereas in a special proceeding, relief may
be obtained by mere application or petition. In special
proceedings, you do not file a complaint. You file a petition.
So, there are no pleadings. So Rule 6 does not apply to
special proceedings.
So, to sum up, there are three distinctions:
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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, whereas, a
special proceeding is a remedy by
which a party seeks to establish a status,
a right, or a particular fact.
2. In a civil action, there are two (2)
definite and particular adverse parties,
the party who demands a right, called a
plaintiff, and the other whom the right is
sought, called a defendant. Whereas,
in a special proceeding, while there is a
definite party petitioner, there is no
definite adverse party as the
proceeding is usually considered to be
against the whole world.
3. A civil action requires the filing of
formal pleadings whereas in a special
proceeding, relief may be obtained by
mere application or petition.
We proceed to Sec. 4.
Sec.4. In what cases not applicable. - These
Rules shall not apply to election cases, land
registration, cadastral, naturalization and
insolvency proceedings, and other cases not
herein provided for, except by analogy or in a
suppletory character and whenever practicable
and convenient. (R143a)
There are certain types of proceedings in court
where the Rules of Court will not apply because they are
governed by special rules of procedure. Ex: Election cases
under the Election Code. Like election protest for the position
of a municipal mayor. So, follow the Election Code. How
about land registration and cadastral cases? Follow the
Property Registration Decree. Or naturalization or insolvency
proceedings. An alien wants to become a Filipino so he files a
petition for naturalization under the Naturalization Act.
Insolvency, yung nahapay ba. So, the procedure is insolvency
proceeding. In this case, they call it the Bankruptcy Law.
Now, the Rules of Court only applies suppletorily. In
other words, if those laws are silent, we will apply the Rules of
Court to supplement. But generally, the Rules of Court will
apply. Election, registration, naturalization, and insolvency
cases are examples of what Sec. 2 is saying.
Let’s go to Sec. 5.
Sec.5. Commencement of an action. - A civil
action is commenced by the filing of the original
complaint in court. If an additional defendant is
impleaded in a later pleading, the action is
commenced with regard to him on the date of the
filing of such later pleading, irrespective of whether
the motion for its admission, if necessary, is denied
by the court. (6a)
Yes. How is a civil action commenced? By the filing
of the original complaint in court. Of course, this is understood
to be filing and payment of the complete docket fee.
Because filing alone without payment of docket fee is still no
filing at all. And what is the importance of determining the
exact date when the civil action is commenced? It is on that
date that the law on prescription is deemed interrupted. You
must file the action before the action has prescribed. You
know that in Civil Code. There are certain actions which
should be filed within a certain period. An action to annul a
contract within 2 years from this date. Kaya you have to meet
the deadline.
Suppose I will file a case against A today. So the
action is commenced against him today, November. And
then, 2 months from now, I will amend my complaint to include
another defendant B. Now, under the law, if I add an
additional defendant, the action is deemed commenced
against B not today but on the day I will include him in the
amended complaint. So, you cannot say, the action has not
yet prescribed against B because I filed my original complaint
last November. No, the action has not prescribed insofar as A.
But ako sinali mo ako, January lang, so as far as I am
concerned, since I’m an additional defendant, the action is
commenced against me only in the month of January, not the
filing of the original complaint last November. So, that is what
Sec. 5 means.
And finally, the last section in Rule 1:
Sec.6. Construction. - These Rules shall be liberally
construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of
every action and proceeding. (2a)
Yes. This is a rule in statutory construction. How do
you construe or interpret the Rules of Court? Liberally.
Meaning, they shall be construed not strictly but liberally.
Why? In order to promote their objective of securing a just,
speedy and inexpensive disposition of every action and
proceeding. The purpose of Procedural Law is to hasten
litigation. So you do not interpret it to prolong a case. So, that
is based on the principle of liberal construction.
Suppose a lawyer did not follow the rule literally (this
is what you call lapses), should it be taken against him?
Should he be punished or should the action be considered as
dismissed because a party or a lawyer did not follow the rules
to the letter? The answer is no. If there is no harm done, let
the case proceed. Because the rules should be liberally
construed.
Now, in one bar examination, this was asked: When
may lapses in the literal observance in the Rules of Court be
excused? Lapses, meaning failure to observe literally the
provisions of the rules. Are they excusable? In the case of:
PEOPLE VS. NUCUM
77 PHIL 1018
Lapses in the literal observance of a Rule of
Procedure will be excused or overlooked:
1. When they do not involve public
policy
Page 29 of 296
 2. When they arose from an honest
mistake or unforeseen accident
3. When they have not prejudiced
the adverse party
4. When they have not deprived the
court of its authority
So, if a party or a lawyer failed to observe 100% a
provision of the rules, should it be taken against him or should it
be considered excusable? Well, it is excusable when,
anyway, public policy is not affected. Or when the mistake is
honest or unforeseen. There is no deliberate intent to violate
the rules. When the adverse party is not prejudiced. And
when the mistake has not deprive the court of its authority. So,
no serious harm is done. So, let us forget the mistake under the
rule on liberal construction. As a matter of fact, there are
other cases where the SC expressed the same principle,
although stated in another way. Example, the case of:
SANTOS vs. CA
198 SCRA 806
Procedural rules are not intended
to hamper litigants or complicate litigation
but indeed to provide a system under which
suitors may be heard in the correct form
and manner and at a prescribed time in a
peaceful confrontation before a judge
whose authority they acknowledge. The
other alternative is the settlement of their
conflict through the barrel of a gun.
So, the purpose of the rules is for people to fight each
other in a civilized way. Example, may reklamo ako sa iyo.
You encroached on my land or you borrowed money and you
refused to pay. Now, what is the purpose here of the
procedure? I go to court. And the law provides a system
under which we will be heard in the correct form and manner
at a prescribed time in a peaceful confrontation before a
judge whose authority they acknowledge. Meaning whatever
he decides, we will be bound. Why? If you do not believe in
the system of going to court and suing people with whom you
are aggrieved, ayaw mong maniwala sa justice system, what
is your alternative? We will settle our conflict through the
barrel of a gun. That is what the SC said. Barilan na lang tayo.
So if you do not accept the system of justice, that is your
alternative. You kill each other.
Despite all these imperfections, it is still a better
system than quarreling each other, di ba? I keep on hearing
some people saying “I lost trust in the justice system.” Well of
course, I do not blame them. But let them go out of the
system and let us see what will happen. For example,
somebody enters your house and removes your property.
Ninakawan ka. What is the correct system? You file a case
against robbery or theft. Eh, kung hindi ka maniwala, okay
lang. Alternative, pag-alis niya, akyatin ko rin ang bahay niya.
Bawiin ko rin yung mga kinuha niya. Kanya-kanya na lang
tayo. That is what will happen if you will not believe in the
procedure.
Another recent quite case where the SC again
talked on this policy on how to interpret the rules is the case of
DE GUZMAN vs. SANDIGANBAYAN
April 11, 1996; 256 SCRA 171
The SC, en banc, through Justice
R. Francisco, expressed the same principle:
The Rules of Court was conceived and
promulgated to set forth guidelines in the
dispensation of justice but not to bind a
chain, a hand that dispenses it or otherwise
courts will be mere slaves to or robots of
technical rules short of judicial discretion.
That is precisely why courts, in rendering
justice, have always been as they in fact
ought to be, conscientiously guided by the
norm that when on the balance,
technicalities take a back seat against
substantive rights and not the other way
around.
So, the purpose of procedure is to help the hand that
dispenses justice. Not to tie these hands. Otherwise, the courts
will become mere robots. Truly then, techchnicality should give
way to the realities of the situation. Meaning, as much as
possible, courts should avoid technicalities. Alright. So, that is
how the Rules of Court should be construed.
Liberal Construction, Exceptions
On the other hand, there is an exception to the rule
on liberal construction. According to the SC also, there are
certain provisions of the Rules of Court which should be strictly
construed. Baliktad. Generally, the Rules of Court will be
liberally construed. But there are those which should be strictly
construed. Like provisions prescribing the time within which
certain acts must be done. Or certain proceedings taken are
considered absolutely indispensable to the prevention of
needless delays and to the orderly, speedy dispatch of judicial
business. And therefore, these provisions of the rules
prescribing the time within which certain acts be done have to
be strictly construed.
Example: Under the law on appeal, the period to
appeal is 15 days. From the time you receive the decision
adverse to you, you must appeal within 15 days. Okay. Now,
suppose, I will appeal on the 16th day, one day after. Is the
appeal on time? Of course not. The law says 15, you file your
appeal on the 16th. You say, liberal construction eh. Isang
araw lang bitaw na. No. Otherwise if you change that,
another case will be appealed on the 17th. Then another. In
other words, what is the use of deadlines? Pwede pa lang i-
stretch forever. Yan ang kaibahan. There are SC decisions
where the SC said: While it is true that the rules should be
liberally construed we should not abuse it. Example, in the
case of:
ANTONIO vs. CA
167 SCRA 127
It is the common practice of
litigants who have no excuse for not
observing the procedural rules to minimize
the same as mere technicalities. Then they
cry for due process. This procedural rules
are in fact intended to insure an orderly
administration of justice precisely to
guarantee the enjoyment of substantive
rights.
Page 30 of 296
 LIMPOT vs. CA
170 SCRA 367
Procedural Rules are not to be
belittled or dismissed simply because their
non-observance may have resulted in no
prejudice to a party’s substantive rights.
Like all rules, they are required to be
followed except only when for the most
persuasive of reasons, they may be relaxed
to relieve a litigant of an injustice not
commensurate with a degree of his
thoughtlessness in not complying with the
procedure prescribed. While it is true that a
litigation is not a game of technicalities, this
does not mean that the Rules of Court may
be ignored at will and at random to the
prejudice of the orderly presentation and
assessment of the issues and their just
resolution.
This reminds me of a judge before here where the
case of one lawyer was attacked precisely for non-
compliance with the rules. The provisions on the rules should
be followed. Here, the lawyer was cornered. And every time
he is cornered, he invokes Sec. 6 on liberal construction. And
the judge said jokingly, “Is this a case of liberally construing the
rules or is this a case of gross ignorance of the law?” Yan. It is
either you did not follow the rules strictly or you do not really
know the rules.
Bar question: When may lapses in the literal observance in the
Rules of Court be excused?
ETHEL ET AL vs. FERNANDO JUGO, ET AL
77 P 523
Lapses in the literal observance of the Rule of Procedure will
be overlooked:
1. when they do not involve public
policy;
2. when they arose from an honest
mistake or an unforeseen accident;
3. when they have not prejudiced
the adverse party;
4. when they have not deprived the
court of its authority
End of Rule 1.
Part 1
CIVIL ACTIONS
A. Ordinary Civil Actions
Rule 2
CAUSE OF ACTION
Rule 2 particularly is the study on ordinary civil
actions. So, we will study first the concept of a cause of
action. Let us read Secs. 1 & 2 together.
Sec. 1. Ordinary civil actions, basis of. - Every
ordinary civil action must be based on a cause of
action. (n)
Sec. 2. Cause of action, defined. - A cause of
action is the act or omission by which a party
violates a right of another. (n)
Cause of Action
So, let’s discuss this two. Every ordinary civil action
must be based on a cause of action. What it is saying is you
cannot file any civil case unless you have a cause of action.
Simple. If you have no cause of action, then you cannot file
any action. If you file, as we shall see later, your complaint is
vulnerable to dismissal. So, what is a cause of action? The
definition is there in Sec. 2. It is the act or omission by which a
party violates a right of another. The 1964 Rules did not give a
codal definition. But this is not a new definition. This is lifted
from SC decisions. Take note that in what we have already
studied in the previous Rule, the purpose of an action is to
enforce or protect a right or prevent or redress a wrong. So, I
will file a case against the one who violated my right.
Elements of Cause of Action
Now, based on the definition of a cause of action,
the next question is: What are the elements of a cause of
action? The elements of a cause of action are enumerated
by the SC which in effect, are taken from their definition. The
elements of a cause of action are as follows:
1) There must be right pertaining to the plaintiff
2) There is a correlative obligation of the defendant
3) There is a violation of plaintiff’s right by the
defendant
4) There is damage suffered by the plaintiff.
So, right, obligation, violation and damage. These
are the four elements of a cause of action. You cannot
imagine of any civil case where the 4 elements are not
present.
Example: A debtor borrows money from creditor. Then, it’s
already due. Ayaw pa ring magbayad. Let’s try to find out
the elements.
 Right. The right of the creditor to
get back his money.
 Obligation. The defendant has the
obligation to pay back the loan under
the law on contracts.
 Violation or delict or wrong. The
account fell due and you’re supposed
to pay me, you did not pay me.
 Damage. I cannot get back my
money. Lugi ako.
So, the 4 elements are there. Of course, when you file
a complaint against somebody, you do not prepare the
Page 31 of 296
complaint by enumerating the elements. Right, ganito. 1) The plaintiff must have a
Obligation, ganito. In other words, nasa istorya yan. It is up for good cause of action, and
the defendant to analyze. It is the duty of the lawyer to 2) He must have performed
analyze the complaint whether the 4 elements are present. all conditions precedent to
the filing of the action.

Example: Damages arising from culpa aquiliana.

You are crossing the street and a driver just bump you there. Next question: Distinguish cause of action from right
And you are hospitalized. You fail to report for work. of action:
1) Cause of action refers to
the delict or wrong
 Right. It is the right of every person committed by the defendant,
not to be molested. You have the right whereas,
to walk peacefully and not to be
harmed. Right of action refers to the
 Obligation. It is the obligation of right of the plaintiff to institute
every person driving to be careful so the action.
that he will not bump people. You do
not have to enter into a contract with a
person saying you will not bump him. 2) Cause of action is
 Delict or wrong. Because of your created by substantive law,
recklessness, you violated his right by whereas,
injuring him. Right of action is regulated by
 Damage. I have to spend money in procedural law.
the hospital and I lost my income.

3) Right of action may be

The 4 elements are present. In other words, I cannot taken away by the running of
imagine a civil case where the 4 elements are not present. statute of limitations, by
estoppel or other
circumstances which do not
affect at all the Cause of
Here’s another situation: Defendant borrowed money action.
from me last year payable in November 1998. And despite
demands, still he has not paid me. Let us try to explain all these things that we’ve
discussed. One of the essential requisites of a right of action is
that a plaintiff must have a good cause of action. Meaning,
 Right. The creditor has the right to the existence of a right of action depends on whether you
collect. have a cause of action. Because right of action is the right to
 Obligation. Every debtor has the go to court. How can you go to court when there is no cause
obligation to pay. of action? That is impossible. So, the existence of the right of
 Damage. I have not recovered the action presupposes that you have a cause of action. That is
money. why in the case of:
 Delict or wrong. Wala pa.

DE GUZMAN JR. vs. CA

Why? The account is payable next year pa. Bakit
nagademanda ka na ngayon? So, premature. One element
is missing. So, if I am the lawyer of the defendant, I will
question your complaint. It is not based on a cause of action.
That is dismissable under Rule 16. So that is the concept of a
cause of action.
Some text writers mention only the first three: right,
obligation, delict or wrong. They do not mention the 4th
element. But to my mind, the 4th element is still important.
Because if there is no damage, it will amount to no case. You
have not taken up Torts and Damages, no? There is such a
principle as “damnum absque injuria”. Meaning, if there is no
damage, there is no injury. Another latin maxim, “accio non
datur non damnificato”, which means there could be no
action where no injury is sustained. That is what the SC said.
Cause of Action vs. Right of Action
A favorite question in the bar is: Distinguish a cause
of action from a right of action. Cause of action is the act or
omission by which a party violates a right of another, whereas,
right of action is a right of the plaintiff to bring an action and to
prosecute that action to final judgment.
192 SCRA 507
The right of action springs from the
cause of action but does not accrue until all
the facts which constitute the cause of
action have occurred. When there is an
invasion of primary rights, then and only until
then does the adjective or remedial law
become operative. And under it arise rights
of action. There can be no right of action
until there has been a wrong. The violation
of a legal right and it is then given by the
adjective law.
In No. 2, you may have a cause of action but if the
law requires certain conditions precedent before you can go
to court, you have to comply with those conditions precedent
before you can file. Sa inyong administrative law, meron
niyan. Maraming examples.
Here is one case where you may have a right
violated but you did not comply with some conditions
precedent. Therefore, your case is premature. You are in a
hurry, ba. This is relevant to your study on transportation. This is
a case which originated in Davao City.

What are the Requisites of a right of action? The PHIL. AMERICAN GENERAL INSURANCE CO.
requisites are the following: vs. SWEETLINES

Page 32 of 296
 212 SCRA 194
There is a shipment of goods from
Manila to Davao that is covered by a bill of
lading issued by the shipper. The document
has this stipulation: In case you receive the
goods and there is damage, a notice of loss
must be sent for damage in the carrier.
Padala ka ng notice. Because they will
investigate. If your claim is valid, they will
pay. Now, if they refuse to pay, you go to
court. But you cannot go to court without
first sending this notice of loss or damage to
the carrier. The consignee of the goods
received the goods in bad order and
condition. So, nag-demanda siya. He filed a
case against the shipping company,
Sweetlines. Sweetlines questioned the
consignee. “Why did you go to the court
immediately? So should have sent first a
notice to us. Therefore since you did not
send us notice, your case should be
dismissed for being pre-mature.”
The SC said: Where the contract of
shipment contains a reasonable
requirement in giving notice of loss of or
injury to the goods, the giving of such notice
is a condition precedent to the right to the
action for loss or injury or the right to enforce
the shipper’s liability.
BACHRACH VS CA
296 S 487
Distinguish cause of action from
subject matter of action. In a breach of
contract what is the subject matter and the
cause of action.
Held: A cause of action broadly
defined, is an act or omission of one party in
violation of the legal right of the other. The
subject matter, on the other hand, is the
item with the respect to which the
controversy has arisen, or concerning which
the wrong has been done, and it is
ordinarily the right, the thing, or the contract
under dispute.
In a breach of contract, the contract violated is the subject
matter where the breach thereof by the obligor is the cause of
action.
Anong tawag niyan? There is still no right of action.
Because you have not complied with the conditions
precedent. There is a cause of action there because there is
damage. The trouble is the second requirement is not met.
So as to the distinctions, the cause of action is the
wrong itself. The wrong or the violation of your right is a cause
of action. Right of action naman is your right to go to court to
hold me liable for the wrong. That is a right of action.
Cause of action is created by substantive law. How
do you know your right? You look at the Civil code. It is the
Civil Code or substantive law or other special laws which
create cause of action. But the manner of enforcing that right
in the court of justice is governed by the Rules of Court. By
procedural law. As a matter of fact, also in the case of De
Guzman, the SC, comparing right of action from cause of
action, said:
Right of action is a remedial right belonging to
some persons while Cause of action is a formal
statement of the operative facts that give rise
to such remedial right.
That is tantamount to saying one is the right violated
or the violation of a delict or wrong, one is the right to go to
court.
And the last distinction, right of action may be taken
away by the running of statute of limitations, by estoppel or
other circumstances which do not affect at all the cause of
action. Let’s try to analyze that. Under the law, Civil Code,
rights should be enforced within a certain period. Prescription.
Let’s say you have 4 years only to file your case from the day I
committed the wrong. So, I committed the wrong now 1997.
Then you file your case in 2002, 5 years from now against me.
Sasabihin ko, the action has prescribed. Filed out of time.
Now my question is this: What prescribed? The cause of
action or the right of action? Sabi mo, the action has
prescribed. Anong action?
Actually, what has prescribed is the right of action.
The right to go to court has already prescribed. A cause of
action cannot prescribe because the violation is there. But if
you want to enforce that right, there is prescription. Kaya nga,
if I do not raise prescription, I can be liable because there is a
cause of action. But I can stop the case by questioning the
filing of the case as out of time.
I hope, with that kind of distinction, you can now
distinguish what is a cause of action under civil procedure and
what is the meaning of right of action under Secs. 1& 2 of Rule
2. Let us now go to Sec. 3.
Rule Against Splitting A Cause of Action
Sec.3. One suit for a single cause of action. - A
party may not institute more than one suit for a
single cause of action. (3a)
That rule is known as the rule against splitting a cause
of action. Splitting, meaning hinati mo. What do you
understand by splitting of a cause of action? It means the
practice of dividing one cause of action into different parts
and making each part a subject of a separate complaint. So
the principle is simple. If there is one cause of action, you file
one case. One cause of action equals one case.
Suppose I will file 2 cases against you when I have
only 1 cause of action. Then I have violated the rule against
the prohibited practice of splitting a cause of action Example:
You borrowed money from me P1M with interest of 15% p.a.
So, in one year, that would be P150T in interest alone. Hindi ka
makabayad. So, ganito ang ginawa ko. I will file one case
against you to collect a loan of P1M. Then I will file another
case against you to collect the interest of P150T. So dalawa
ang gi-file ko. One case for the principal and another case for
the interest. That is splitting a cause of action. There is only
one wrong - non-payment of one loan. What you should do is
file one case to collect the principal and the interest. You do
not file 2 cases. Otherwise, that is splitting which is prohibited
by the rules.
Page 33 of 296
 Another example: Suppose while a man was walking
along the street, he was bumped by another vehicle. He
landed in the hospital and incurred a lot of expenses. P10T for
medicine. P10T for hospitalization expenses. P10T for his
doctor. P10T for lost wages. So, P40T lahat. When he went out
of the hospital, he filed one case against the owner of the
other vehicle. P10T for reimbursement of hospitalization
expenses. Another case for reimbursement of P10T medical
expense. Another case for x x x, etc. So, 4 cases. Isang
banggaan. Isang beses ka lang binangga, apat na cases
ang i-file mo? That is again called splitting a cause of action.
If you do that, what will happen to you? The consequence is
found in Sec. 4.
Sec.4. Splitting a single cause of action; effect
of. - If two or more suits are instituted on the basis
of the same cause of action, the filing of one or a
judgment upon the merits in any one is available
as a ground for the dismissal of the others. (4a)
Litis Pendencia
Alright. When you file 2 or more suits on the basis of
the same cause of action, the filing of one is a ground for
dismissal of the other. Or judgment upon the merits in any one
is available as a ground for the dismissal of the others.
Example: you file a case against me. It is still
pending, wala pang decision. File ka naman ng panibago.
Dalawa na ang kaso. According to the law, the filing of one is
available as a ground for the dismissal of the other. I will invoke
the pendency of one as a ground to dismiss the case. That is
found in Rule 16, Grounds for A Motion to Dismiss. That is what
they call the ground of litis pendencia. You can move for the
dismissal of the case on the ground that there is another
action pending with the same parties for the same purpose.
Res Adjudicata
Halimbawa, the first case was already decided ten
years ago. So, hindi na pending. After 5 years, inulit mo na
naman. Again, there is a splitting of the cause of action. And
what is the ground there? A judgment upon the merits in any
one is available as a ground for the dismissal of the others.
Meaning, you cannot file another case. Tapos na ito. We
already had a decision before where we fought over the
same thing. That is what you call in Rule 16 that the action is
barred by prior judgment. Or what is known as the application
of the principle of res adjudicata. You cannot file a case more
than once. What is the reason behind the rule? Why does the
law prohibit a party to file more than one action when he has
only one cause of action?
The SC said: The rule against splitting a cause of
action is intended to prevent repeated litigations between the
same parties in regard to the same subject of controversy. To
protect the defendant from unnecessary vexation and to
avoid the costs incident to numerous suits. That is harassment
already. That is why there is this principle: No man shall be
twice vexed for one and the same cause. Can you imagine
without this principle of res adjudicata? You bump me and I
will file a case against you. After 2 weeks, another case. Every
week, may kaso ka. My golly. There is something wrong there.
Or you filed a case against me 2 years ago, we went to trial.
We spent money and then I won. Ngayon, file ka na naman
ng complaint. Di ba tapos na yan? Ah dili. Usab ta. Ano ito,
boxing? Re-match? That is the effect of splitting a cause of
action. Remember these principles. These are basic principles
in Civil Procedure:
How about in a case where a public officer is sued
for criminal and administrative cases at the same time?
Those are not the same. The purpose of one is
different from the other. In the criminal case, the purpose
there is imprisonment. You violated a penal law. In
administrative case, the purpose is removal from office. So, it
arose from the same act but these are 2 different causes of
action because the relief sought is different. Di ba in Criminal
Procedure, in a criminal case, the offended party can make a
reservation to file a separate civil action? We are talking of
the same incident. Is that splitting? No!. One is criminal and
one is civil. What is prohibited is 2 civil cases. The object of a
criminal case is different from the object in a civil case.
Because when I file a civil case, I am no longer claiming civil
liability in the criminal case. So there is no splitting of a cause
of action.
Singleness of a Cause of Action vs. Remedies Provided For A
Cause of Action
Now, we should not confuse also the singleness of a
cause of action with the remedies provided by law for a cause
of action. The singleness of a cause of action is determined by
the singleness of the delict or wrong committed by the
defendant and not by the number of remedies that the law
grants the adverse party. Example: You violate my right. If
you violate my right, and then you look at the law, the law will
actually give you more than one remedy. So, for instance
there are 2 remedies. Can I file 2 cases? No. Only one.
Meaning, mamili ka.
Let’s go to fundamentals of Obligation & Contracts.
Somebody enters into a contract with you. And he did not
comply with his obligation under the contract. So, breach of
contract. Under the civil code, what are your remedies?
What are the possible cases that you can file against him?
Answer: Specific performance is one. Rescission is
another. The civil code provides 2 remedies. How many
cause of action do you have? Isa lang. There is only one
breach. Meaning, I will file an action for specific performance
or an action for rescission of contract. But I cannot file both.
Otherwise, you will be splitting your cause of action. Do not
confuse your cause of action and the remedies provided by
law.
Another example based on Sales: Under the law on
Sales, if somebody buys from you, say, you own an appliance
store, may refrigerator or air conditioning unit, the buyer
promised to pay in installments but actually he did not pay
you. You are the unpaid seller. What are the options provided
by law to the unpaid seller to run against the buyer to hold the
property in installments?
Rescind the contract of sale. Exact fulfillment of
obligation. Foreclosure of mortgage. Therefore, there are 3
remedies. Does the Civil Code authorize the unpaid seller to
avail all of them or one after the other? Bawal, di ba? If you
choose one, you waive the others. Why? Because if you avail
of the remedies one after the other, you are actually splitting
your cause of action. There is only one delict or wrong which
gives rise to 3 remedies. The choice of one bars you from
exercising the others. In other words, you can see the
relationship between those principles in the Civil Code in the
Rules of Civil Procedure.
You have taken up Credit Transactions. Somebody
borrows from you and mortgages his land to secure the loan.
When the loan fell due, he did not pay. What are the rights of
the creditor-mortgagee against the debtor-mortgagor?
Demand payment of the loan or foreclose the mortgage.
Either you enforce the principal contract of loan or enforce
the accessory contract of mortgage. Can you do both?
Anyway there are 2 remedies so dalawahin ko para sigurado.
That is what happened in the case of:
DANAO vs. CA
Page 34 of 296
154 SCRA 446
H and W borrowed money from
the bank and mortgaged their land. They
failed to pay so the bank filed a case
against them to collect the loan. After the
filing, the bank instituted foreclosure
proceedings against them.
The SC said: Anent real properties
in particular, the court has laid down the
rule that a mortgage-creditor may institute
against a mortgage-debtor either a
personal action for the debt or a real action
to foreclose the mortgage. Either of the two
remedies may be pursued but not both.
Evidently, the prior recourse of the creditor-
bank, the filing of the case against the
Danao spouses and subsequently resorting
to the complaint of foreclosure
proceedings, are not only a demonstration
of the prohibited splitting up of a cause of
action but also the resulting vexation and
oppression to the debtor.
That is an example of splitting a cause of action.
There are 2 remedies but you cannot avail of both. Otherwise
there will be a splitting of your cause of action.
Sometimes it is easy to determine whether there is
one cause of action. Sometimes it is difficult. Example: You
enter into a contract with me which contains the following
stipulations:
Under this contract, I am supposed to deliver 100 sacks of rice,
100 sacks of corn, and 100 sacks of sugar today. I did not
deliver anything. Not a single sack of anything.
Q: How many stipulations did I violate?
A: Three.
Q: How many causes of action do I have? Three or one?
A: One because there is only one contract.
Q: But the contract contains 3 stipulations? Is it not a fact
that one stipulation is one cause of action? There are 3
stipulations so there must be 3 causes of action.
A: There is only one cause of action. The cause of action is
not based on the stipulations but on the contract.
RULE # 1. The cause of action is not based on the
stipulations but on the contract. That is the general
rule to remember. A contract embraces only one
cause of action because it may be violated only
once. Even if it contains several stipulations.
RULE # 2. A contract which provides for several
stipulations to be performed at different times gives
rise to as many causes of action as there are
violations.
This is an exception to Rule 1. We will illustrate that.
Promissory Note
B borrowed from A the sum of is payable in three
equal annual installments.
1997 P100T
1998 P100T
1999 P200T
(no acceleration clause)
B borrowed from A the sum of P300T and there is a promissory
note. The promissory note provides that the loan is payable in
3 equal annual installments. Say, in 1997, B is supposed to pay
A P100T. Then in 1998, the 2nd installment falls due the sum of
P100T. Then in 1999, the 3rd installment will fall due, P100T. And
there is no acceleration clause. You know what an
acceleration clause is? If you fail to pay one installment,
everything becomes due. Pero kung walang acceleration
clause, if you pay the 1st installment, what is due will only be
P100T. You wait next year for the other P100T.
There is only one promissory note here. There is only
one loan. But there are 3 stipulations. But take note that the
installment payments fall due in different dates. Hindi sabay-
sabay. So, we follow the 2nd Rule.
Q: This year, B failed to pay the 1st installment. Can A file a
case against B this year to collect installment No. 1?
A: Yes, that is one cause of action.
Q: Next year, B did not pay the 2nd installment. Can A file a
2nd case?
A: Yes.
Q: In 1999, the same thing happened. B again did not pay
the 3rd installment. Can A file a case against B to collect
the last P100T?
A: Yes.
Q: So, how many causes of action does A have against B
arising out of one promissory note? Why?
A: There are 3 causes of action because according to Rule
2 if the contract provides for several stipulations to be
performed at different times, it gives rise to as many causes
of action as there are violations. That is why the 2nd Rule is
an exception to the 1st Rule.
Now, let us go to another rule.
RULE # 3. All obligations which have matured at the time of
the suit must be integrated as one cause of action in one
complaint and those not so included would be barred.
The 3rd Rule is an exception to the exception. So, if it
the exception to Rule 2, you go back to Rule 1. That is the 3rd
Rule. We go back to the same promissory note. But this time
with some variation.
Page 35 of 296
 This year, B did not pay the 1st installment of P100T.
Therefore, A has the right to file a case to collect the amount.
However, A did not file a case. Pinabayan lang niya. Anyway,
baka next year, B will double the payment. Bayaran niya yung
dalawang taon. So, A waited for the year 1998. But when he
tried to collect the 2nd installment in 1998, again, B did not
want to pay. So, pila na ang utang? Dalawa na. Sabi ni A,
“Ngayon magdimanda na ako. Binigyan na ng grace period
wala gihapon.” So there are now 2 installments which have
fallen due.
If you apply Rule 2, he can file 2 cases, di ba?
Because every installment is one cause of action. But under
Rule 3, NO. Since you did not file a case in the first installment
and you waited for the 2nd, and again there is no payment, so
the first 2 P100T are now considered as one cause of action.
You must file one complaint to collect P200T. Di ka na maka-
file ng one complaint each because they are already due.
So, again, A waited until 1999. Bayaran mo na.
P100T plus past due mo na 2 years. Ayaw pa ring magbayad.
So, magkano ang collectible mo? P300T because there are
now 3 unpaid installments. How many cases will you file? Only
one because there is only one cause of action. That is based
on Rule 3.
Punta ka ng abogado. Sabi mo, “From what I know,
every installment is one cause of action. So we will file a case
to collect the 1st installment. Then after that, I will file a 2nd
case to collect the 2nd installment. Then a 3rd case to collect
the 3rd installment. Talong kaso ang i-file natin. Anyway there
are 3 stipulations to be performed at different times.” So, nag-
file ako P100T. And then, after one month, you filed a
complaint for the 2nd installment because you are aware of
Rule 2. Nalimutan mo na ang Rule 3. So, pag-file mo, the
defendant will file a motion to dismiss. When you file only
P100T, you have waived your claim to the other installments.
Those not so included are barred because you are now
splitting your cause of action.
RULE # 4. However, when the failure to comply with
one of several stipulations, in a continuing contract
constitutes a total breach, a single cause of action
for damages, actual as well as prospective, arises
from such breach.
This is the exception to Rule 2. Let us illustrate this
using the same promissory note. In 1997, when the first
installment fell due, A approached B and said, I am now
collecting the first installment of P100T. Sabi ni B, wala akong
utang sa iyo. I did not borrow money from you. I gave you
P300T. As a matter of fact, may promissory note pa, o.
Promissory note? I never signed that! My signature there is
forged.
Now here, is B repudiating the 1st installment or is he
repudiating the entire promissory note? He is actually
repudiating the entire promissory note, di ba? If that is so,
under Rule 4, you file a case for the entire P300T because there
is now one cause of action for damages, actual as well as
prospective. Meaning, there is now a breach of the entire
promissory note. Because if you will follow Rule No. 2, na every
stipulation is one cause of action, useless. I will file a case
against you for P100T. Then next year I’d go back to you and
say, “Hoy, your 2nd installment.” What will he tell you? “Tigas
ng ulo mo!. Sabi ko I did not borrow money from you.” In
other words, he will still maintain the same position. So you do
not wait anymore for the 2nd and 3rd installments to fall due.
You file only one case for the entire breach. There is a total
breach for a continuing obligation and there is now only one
cause of action for the entire promissory note. So, again, this
rule is an exception to Rule 2. You go back to the general rule
on breach of contract containing stipulations. There is only
one cause of action for the entire promissory note.
We will now proceed to then next important
provision. Let us read the opening paragraph:
Sec.5. Joinder of causes of action. - A party may
in one pleading assert, in the alternative or otherwise,
as many causes of action as he may have against
an opposing party, subject to the following
conditions:
Yes. A party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may
have against an opposing party. That is known as the practice
of joinder of causes of action. We will illustrate that.
Promissory Note Promissory Note Promissory Note
#1 #2 #3
P100T loan P100T loan P100T loan
1997 1998 1999
In 1997, B secured a loan from plaintiff in the sum of
P100T. In 1998, B secured a 2nd loan from A of another P100T.
And then in 1999, B secured a 3rd loan from A of P100T. So,
there are 3 loans obtained in 3 different dates. We will assume
na 1999 na tayo. All promissory notes are already due and
payable. And not a single promissory note was paid. Now, A
goes to you. You are the lawyer. And says: Atty. Please help
me. Tatlo na ang utang niyan eh. Hindi nagbayad.
Q: As lawyer of A, can you file 3 complaints against B?
A: Yes.
Q: Does this not violate the rule on splitting a cause of
action because the 3 notes are now all due and therefor
constitutes only as one cause of action?
A: No, there is no splitting a cause of action here.
Q: Why is there no splitting of cause of action? So what is
the difference between the previous example and this
one?
A: In this particular example, there are 3 promissory notes,
whereas, in the previous example, there is only one
promissory note. One cause of action for every promissory
note.
In the previous example applying Rule 3, when the 1st
installment fell due in 1997, he could have filed the case. He
did not. In 1998, he could have filed the case. But he did not.
In 1999, that is the time he decided to file. The principle is that
all obligations which have matured at the time of the suit must
be integrated as one cause of action in one complaint and
those not so included would be barred. that, pag-hinintay
mo, there is only one suit. Otherwise if you file 3 complaints,
you are splitting your cause of action. If you wait for all of
them to fall due, then there is only one cause of action.
Now, we will apply that to this example. There are 3
promissory notes, 1997, 1998, 1999. All are now due.
Page 36 of 296

Q: Can A file 3 cases, one for every promissory note?
A: Yes.
Q: Now, is he not violating the rule on splitting a cause of
action by filing 3 cases when actually the 3 notes are now
due and demandable apllying Rule 3?
A: No, he is not violating the rule because there are 3
promissory notes. There are 3 promissory notes, so, there
are 3 contracts violated. Therefore, if you file one case for
every promissory note, you are not violating because you
are filing one case for every cause of action.
So what is the difference between the two
illustrations? Because here there are 3 promissory notes, there
are 3 different contracts of loan. In the previous example,
there is only one promissory note. What is only split is the
payment of the loan. Kaya nga, there is only one cause of
action. So that these two must not be confused.
There was a problem in the bar. Precisely, why I
asked you this problem. A secured a loan. Loan No.1, this
year. And then after another month, A secured Loan No. 2.
And then, after a few more months, loan No. 3. The 3 loans
are now due and payable. How many cases can be filed?
Three. Almost one/half the class said, No because there is only
one case of action remembering the first example. Iba yan.
There are 3 separate contracts. So every promissory note has
one cause of action. Therefore the lawyer of A can file 3
cases.
Joinder of Causes of Action
However, this is now the question: Sabi ni A, “Why will
I file 3 complaints against B when actually pare-pareho man
ang nature. Same plaintiff, same defendant. I will just file one.
One complaint but isama ko silang tatlo.” Meaning, in one
complaint, he will collect 3 promissory notes. Question: Can it
be done? The answer: Yes, under Sec. 5. That is known a
joinder of causes of action. Remember the principle, no. You
cannot file more than one action for a single cause of action.
Otherwise, you are splitting your cause of action under Sec. 2
& 3. You cannot file more than one suit for a single cause of
action. But you can file one suit embodying two or more
causes of action. That is known as joinder of causes of action.
Now, is the lawyer of A obliged to follow Sec. 5?
Obligado ba ako to file one complaint for the 3 promissory
notes? The answer is no because joinder of causes of action is
permissive. He may or may not. So what are the options of
the lawyer of A? File 3 complaints for the 3 promissory notes or
file only one complaint embodying the 3 claims for the 3
promissory notes.
There are many examples that I can give you. An
illegitimate child would like to claim support from his natural
father but he is not recognized by the father as really his child.
From your study of persons, can an illegitimate child who has
not been recognized by his natural father claim support from
his father? The child must first file a case for recognition or
acknowledgment. After the case is decided in your favor, you
are now declared as the child of the defendant, pwede ka ng
mag-file ng support. So, how many causes of action does the
illegitimate child have against his father? Two. An action for
acknowledgment and an action for support. Therefore, can
the lawyer of the child say, I will first file an action for
recognition and then when we get the decision, next step,
action for support. Can it be done that way? Yes. Pero
sasabihin ng abogado, Bakit pa magdadalawa, isahin na lang
natin. An action for recognition and support. One time ba. Is
that allowed? It is also allowed under the concept of joinder
of causes of action.
Alternative vs. Cumulative
Next question, how does a party join his causes of
action? The law says in the alternative or otherwise. So, there
are 2 types of joinder: the alternative joinder and the
cumulative joinder. Alternative, meaning, either this or that.
Kung cumulative, all of them. There are causes of action that
can be joined alternatively or cumulatively.
Here’s a good example of a cumulative joinder: I am
collecting 3 separate loans in one complaint. Do you mean to
tell me sasabihin ko sa court, “Either you pay me Loan No. 1 or
Loan No. 2? You pay me ALL. That is what you call
cumulative. You are asking relief simultaneously. Another
example is that case of a child filing recognition and support
case against the father.
Now ang alternative, it’s either this or the other. You
were riding on a vehicle which was bumped by another
vehicle and you were injured. Now, you are not sure kung sino
ang may kasalanan. Is it the fault of the driver of the vehicle
where I was riding or is it the fault of the driver of the other
vehicle? If you will file a case against the operator of the
vehicle where you were riding for damages, what is your
cause of action? Under the law on transportation, where a
passenger files a case against the operator of the vehicle
where he is riding, it is damages based on culpa contractual .
On the other hand, if you are bumped by a car where you are
not riding, file ka sa operator for the negligence of his driver,
your cause of action is damages arising from culpa aquiliana.
So dalawa ang causes of action mo. Your claim for damages
is P.5M. Now, hindi ka man nakasiguro kung sino. File-an mo
pareho claiming both of them as defendants because either
one of them is liable to me. Can you join in one complaint
these 2 operators? Yes. In effect, you have joined in one
complaint 2 causes of action under Sec. 5. Now, as to the
damages, are you claiming P.5M from each operator? No.
Because either one of you is liable. Kung hindi ikaw, siya. So,
alternative joinder.
Another example, Transportation: Suppose, a cargo
was shipped to you from Manila. When the goods reached
Davao, they were unloaded and brought to the custody of a
stevedoring operator. Arastre ba. When the cargo was
delivered to you, it was completely damaged. So, you wrote
a letter to the stevedoring company, Filport sa Sasa. I am
holding you liable for the damage to my cargo. When you
delivered to me the goods, they have been damaged. Sabi
ng Filport, I’m sorry. That cargo was already damaged when it
was unloaded from the barko. So, the damage did not occur
when it was in our bodega. It occurred when the goods were
still in the vessel. So, sulat ka naman sa shipping company.
Tapos, ang sagot naman, We are sorry. We cannot entertain
you. That cargo was in perfect condition when we unloaded
it in Sasa. Nasira yan dun na sa arastre. Naloko na.
Nagtutulakan na sila. Each one is pointing to the other.
We will assume that you will file a case against the
shipping company. Assuming na sigurado ka ba. Your cause
of action is damages arising from breach of contract of
carriage. That is what you call admiralty or maritime case.
Now if your cause of action is against the arastre, that is
damages arising from a contract of deposit. So, 2 causes of
action, admiralty under the Transportation Law and deposit
under the Civil Code. Hindi ka man sigurado, so I decide to
file a case against both of you. At least isa sa inyo matamaan
man ba. Is the joinder there cumulative or alternative?
Alternative, meaning either one is liable.
UNION GLASS AND CONTAINER CORP VS
SEC
Page 37 of 296
 126 S 31
The joinder is improper. In the first place,
one is governed by a quasi-judicial body.
So, how can the RTC try a case when the
cause of action is pertaining to the SEC and
it is governed by the special rules of the
SEC. So, you cannot join them.
When Joinder of Causes of Action Allowed
Now, Sec. 5 says the joinder of causes of action is
allowed subject to the following conditions.
a) The party joining the causes of action shall
comply with the rules on joinder of parties;
b) The joinder shall not include special civil
actions or actions governed by special rules;
c) Where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and
the venue lies therein; and
d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. (5a)
Let’s take them one by one. (Par. a) Ano ba itong
joinder of parties? We will meet that when we reach Rule 3,
Sec. 6 which answers the question on whether 2 or more
persons can join as plaintiffs in one complaint or whether 2 or
more persons can be joined as defendants in one complaint.
Yes, according to sec. 6, Rule 3. Provided there is a common
question of fact or law involved in that case.
Example 1: A, B and C were riding on a bus for
Cotabato City. The bus met an accident and all the 3 of them
were injured. After they were discharged from the hospital,
they went to a lawyer to hire his services to file a case for
damages for breach of contract of carriage against the
operator. Can the lawyer join them as plaintiffs in one
complaint? Answer: Is there a common question of fact or
law involved in their cause of action? Yes, because they are
riders on the same bus. They met the same fate. The
evidence of one is the evidence of the other. Yung operator
naman, ang defense niya sa isa, yun din sa isa pa. So, there is
a common question of fact or law. Therefore, there could be
joinder of parties. By joining the parties, in effect, you are also
joining their causes of action. Since the joinder of parties is
proper under Rule 3, then the joinder of their causes of action
under Sec. 5 is also proper. Because par. (a) says the party
joining the causes of action shall comply with the rules on
joinder of parties. So, if the joinder of parties is improper under
Rule 3, Sec. 6, the cause of action cannot also be joined under
Rule 2.
Example 2. A rode on a bus owned by X & Co.
bound for Cotabato. B rode on another bus belonging to the
same company headed for Cotabato City. C, rode on
another bus belonging to X & Co. headed for Butuan. So, iba-
ibang trip. We will assume that all 3 buses met an accident
along the way. Malas no? All of them were injured. So when
they were discharged from the hospital, they went to see a
lawyer, isang abogado lang.
Can the lawyer join them as plaintiffs in one
complaint? Is there a common question of fact or law
involved in their cause of action? NO, because they are riders
on the different buses although owned by only one company
X & Co. Ang istorya ni A different from that of B and C. Anong
alam ni A sa nangyari kay B, etc? So, walang common
question of law and fact. So, no joinder of parties can be had.
The second rule is par. (B)
b) The joinder shall not include special civil actions or
actions governed by special rules;
So, a joinder shall not include special civil actions or
actions governed by special rules. Otherwise, there will be
confusion. So, an ordinary civil action may be joined with
another civil action. But an ordinary civil action cannot be
joined in a special civil action. Also an action governed by the
Rules of Court may not be joined with an action which is not
governed by the Rules of Court. Example: Election cases. Or
that case United Glass Container vs. SEC where the party
attempted to join in one complaint the cause of action which
is governed by the civil code and another cause of action
which is triable in the SEC. Bawal yan. Let us go to the 3rd
condition:
c) Where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the
venue lies therein; and
Yes, this par. (c) is one of the radical provisions
introduced by the new rules which radically changed the
whole procedure.
Here’s an example: Situation A: Suppose you took possession
of 2 parcels of land belonging to me. I have a land in Matina
and in Toril and you took over. So I would like to file a case for
recovery of possession for each parcel of land. The land in
Matina has an assessed value of, let us say, P350T whereas the
land in Toril, which is a very small lot has an assessed value of
only P20T. If I will file a case of accion publiciana against you
regarding the lot in Matina, in what court should I file it? RTC.
If I will file another action against you to recover the lot in Toril,
where should I file the case? MTC? So, there are 2 cases but
one pertains to the jurisdiction of the MTC, the other one, RTC.
Now, I decide instead of filing 2 cases, I will file only
one case against you embodying the 2 actions, accion
publiciana. Is that allowed? Under the 1964 Rules, that is
prohibited. Bawal. Because one belongs to the RTC, one
belongs to the MTC. Under the new Rules, pwede na. If that is
so, in what court should I file it? Under par. (c) you must file it in
the RTC. The jurisdiction of the RTC will prevail. Dala na yung
sa MTC.
To illustrate Situation A:
Tagum Lot Davao Lot
AV = more thаn P20T AV = more thаn P300T
RTC, Tagum RTC, Davao
Both cаses mаy be filed in the RTC, Dаvаo City .
Now, we will change the problem. Situation B: Same
facts. One of the lots has an assessed value of more thаn
P350T located in Davao City. The other one has an assessed
value of P20T but located in Tagum. Can you join in one
complaint the 2 accion publiciana cases? Under the old rules,
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hindi pwede because of 2 defects. One belongs to the RTC,
the other one belongs to the MTC. Not only that, the venue,
the place where the case should be tried should be in Davao
City for the Davao City lot and the other one should be tried
there in Tagum. So, the venues are not identical.
But under the new rules, pwede na because the law says
where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court, provided one of the causes
of action falls within the jurisdiction of said court and the venue
lies therein. Meaning, the venue for one case is in Davao City.
To illustrate:
Tagum Lot Davao Lot
AV = P20T
accion publiciana
AV = P20T MTC, Davao
MTC, Tagum
Both cаses mаy be filed in the RTC, Dаvаo City .
Situation C: Now, suppose the action for the land in Tagum is
accion publiciana triable by the RTC of Tagum because the
value of the land is above P20T. The land in Davao is also
triable by the RTC of Davao. So both actions, RTC. In which
RTC will you file the case? Tagum or Davao City because I
joined them in one complaint. Either place because both are
RTCs. To illustrate Situation C:
Matina Lot Toril Lot
Davao City Davao City
Assessed Value Assessed Value
P350T P20T
RTC MTC
Triable either in RTC of Tagum or RTC of Davao
Situation D: The land in Davao has an assessed value
of P20T. So accion publiciana triable in the MTC. The land in
Tagum has an assessed value of only P20T. Can I join in one
complaint the 2 actions? No. Because the law says provided
one of the causes of action falls within the jurisdiction of said
court and the venue lies therein. One of them belongs to the
RTC. In my example, both belong to the MTC. So, situation D
is:
Davao Lot Tagum Lot
AV = P350T AV = P20T
accion publiciana accion publiciana
RTC, Davao MTC, Tagum
Not triable in the RTC because both belong to MTC
Situation E: A took possession of your land in Davao
City with an assessed value of P1M. B took possession of your
land in Tagum with an assessed value of P20T. The one against
A is RTC, the one against B is MTC. Pero parehong accion
publiciana. Can you join them? No because the law says
where the cause of action are between the same parties. In
this example, the case there is against A and this case is
against B. So should file another case there. Different parties,
eh.
Situation F: I took possession of your property in
Davao City and you have an action against me for accion
publiciana triable in the RTC. I took possession of another land
of yours in Tagum less than one year ago and the action there
is forcible entry triable by the MTC. Can you file a complaint
Davao City joining the accion publiciana in Davao and the
forcible entry case in Tagum? No. Because. Forcible entry
cannot be joined under par (b), the joinder shall not include
special civil actions and forcible entry is a special civil action.
So these are the various situations which will provoke
you in determining whether it can be done or not. That is why
this par. (C) is one of the most radical provisions of the 1997
Rules. Things which were not allowed before are now allowed
The last par. (d):
d) Where the claims in all the causes of action
are principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction. (5a)
We have already discussed this, the totality rule. If I
will file a case against you, to collect 3 loans, Joinder of causes
of action, no, P50T per loan, the basis for the jurisdiction is the
total of the 3 loans. So P150T which should be filed in the RTC.
Tapos na ito sa Sec. 33, BP 129. It is only a repetition of the
totality rule.
Example: If 3 passengers riding on a bus met an
accident and all 3 of them decide to file one action against
the operator so they will join in one complaint, so in effect
there is joinder of causes of action, and the claim of each is
only P50T but if you add the 3 it will amount to P150T. What will
be the basis of jurisdiction? RTC. Let us go to the last section.
Sec. 6. Misjoinder of causes of
action. - Misjoinder of causes of
action is not a ground for dismissal
of an action. A misjoined cause of
action may, on motion of a party
or on the initiative of the court, be
severed and proceeded with
separately. (n)
There is misjoinder of causes of action if 2 or more
actions are improperly joined under Sec. 5. Example where
there is non-compliance with the rule on the joinder of parties.
Or there is non-compliance with par. (b).
Example: I will file a complaint against you in the RTC
joining an accion publiciana case and a forcible entry case
which cannot be joined as already explained earlier. So since
there is a misjoinder, should the court dismiss the entire
complaint? Sec. 6 says, no. Misjoinder is not a ground for
dismissal. So, what should be done? The misjoined cause of
action may, on motion of a party or on the initiative of the
court, be severed. Tanggalin yung misjoined. It should be
separately tried but it should not be a cause for dismissal. That
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is a new provision. Ibig sabihin, it has no counterpart under the
1964 Rules.
End of Rule 2.
Rule 3
PARTIES TO CIVIL ACTIONS
In general, how does the Rules of Court classify
parties in civil actions? The classes of civil actions are as
follows:
1. Real Parties in Interest
2. Representative Parties
3. Permissive Parties
4. Indispensable Parties
5. Necessary Parties
We will tackle them one by one so let us begin with
Sec. 1.
Sec.1. Who may be parties; plaintiff and
defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a
civil action. The term “plaintiff” may refer to the
claiming party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.)-party plaintiff.
The term “defendant” may refer to the original
defending party, the defendant in a
counterclaim, the cross-defendant, or other third
(fourth, etc.)-party defendant. (1a)
Who may be parties to a civil action? Only natural or juridical
persons or entities authorized by law may be parties to a civil
action. If you are not a person, you cannot sue. You have no
right. Example: A dead man cannot sue and he cannot be
sued. Wala ng personality yun, eh.
Now, there was a case which was decided by the SC years
ago. In that case, a man, say, Juan dela Cruz owned a
store/hardware and his establishment was named Dela Cruz
Hardware. He had a debtor who failed to pay him so he
asked his lawyer to file a case against his debtor to collect
payment. The lawyer filed the case.
Dela Cruz Hardware, Plaintiff vs. Pedro Santos, Defendant
The defendant moved to dismiss the case because Dela Cruz
Hardware is not a natural or juridical person but a name of a
store. Can a store sue? And the lower court dismissed the
case because of violation of Sec. 1 on the ground that only
natural or juridical persons or entities authorized by law may be
parties to a civil action. Juan dela Cruz went to the SC on this
issue: Can Dela Cruz hardware which is owned by him and
where the defendant purchased and even signed the receipts
sue?
Said the SC: No it cannot sue. Dela Cruz Hardware is not a
person. It is the name of a store or establishment. The one
who should sue is the owner, Juan dela Cruz. Plaintiff should
be Juan dela Cruz and not the hardware. But if you want to
emphasize your store, the complaint should read this way:
So, the complaint was not properly filed because of violation
of Sec. 1. However, while the complaint was not properly filed,
the dismissal of the same was premature. Why? The defect is
not really a very serious defect. It is only a formal defect that
can be cured by amending. What the court should do is tell
the plaintiff to amend the complaint. In other words, give the
plaintiff a chance to correct the mistake.
Now, going back to the Sec. 1. The term plaintiff is not
referring only to the claiming party but also to the counter-
claimant, the cross-claimant, or the third (fourth, etc.)-party
plaintiff. The word “defendant” refers to the original defending
party, the defendant in a counterclaim, the cross-defendant,
or other third (fourth, etc.)-party defendant. Ano ba itong
counter-claimant, the cross-claimant, or the third-party
complainant, etc.? We will meet them when we reach Rule 6,
Secs. 6, 8 & 11. Sec. 6 tells what a counterclaim is. Sec. 8 will
tell us what is a cross-claim and Sec. 11 defines a third-party
complaint.
Real Parties in Interest
Sec.2.Parties in interest. - A real party in interest is
the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be
prosecuted or defended in the name of the real
party in interest. (2a)
Define a real party in interest. A real party in interest
is the party who stands to be benefited or injured by the
judgment in the suit. This is a new provision because the 1964
Rules did not provide for a definition on what a real party in
interest is. The prior rule says: Unless authorized by law, every
action must be prosecuted and defended in the name of the
real part in interest. But no definition was given on what a real
party in interest is. The SC gave a definition in previous cases
and it is now found in the Rules itself. This definition was taken
from the case of SALONGA vs. WARNER BARNES & CO. (88 PHIL
125).
Suppose you have a piece of land and you would
want to file a case to recover the same. Will you file your case
against an encargado or a tenant? Of course not. If you file a
case against the encargado, you are not filing your case
against a real party in interest. So, your case will be dismissed.
Suppose, you are riding on a bus which meets an
accident and you are injured. So you would like to file a case
for damages. Against whom will you file the case? Against
the bus company or the driver who was negligent? Against
the bus company because your contract of carriage is
between the bus company and you, not with the driver. Same
with air flights. You do not sue the pilot. You sue the airline.
The pilot is not a real party in interest. These are illustrations of
the provision that the action must be prosecuted and
defended in the name of the real part in interest.
Bar question: A decided to leave for abroad and will
be out for several years. Before he left for abroad, he
executed in favor of B the so-called power of attorney which
granted powers to B to manage A’s property, to collect the
income from his property to be deposited in the bank,
demand collection from people who owe him, and full
authority to hire a lawyer to sue his delinquent debtors.
Absolute power of management, ba. So, A left for abroad. B
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is now acting as the owner because of such authority. One
day, B decided to sue one of the lessees of the property due
to non-payment. His lawyer filed a complaint against X. The
complaint reads:
B, plaintiff vs. X, defendant.
Is the action filed in the name of the real party in
interest? Answer: No. B is not the real party in interest. B
cannot appear in the suit as the complainant. It should still be
the owner, A. B, being an attorney-in-fact, is not a real party in
interest.
Suppose, ang nilagay ng lawyer:
B, as attorney in fact of A vs. X
Pwede na? Lalong sumama. Because there, B is
emphasizing that he is not the real party in interest. With more
reason na hindi pwede because you are admitting that you
are merely an agent of A. Therefore, the suit is not properly
filed. It should always be in the name of the principal. Kung
gusto ni B na talagang isama ang pangalan niya, pwede man
yan ba. Dapat ganito:
A, represented by his
attorney-in-fact B, plaintiff
vs. X
So the plaintiff is not B but A. Going back to the case,
does the law require the plaintiff, the real party in interest to
come back here and file the case? No need. The attorney in
fact can file for him. You look at the law. “x x x every action
must be prosecuted or defended in the name of the real party
in interest.” The law does not say, “every action must be
prosecuted or defended by the real party in interest”. I can
let somebody do it but I am still the real party in interest in the
case.
Exception
Suppose, there is a contract between A and B. Who
can sue under that contract? Only A and B. Can X, a third
person who is not a party to the contract, file a case under
the contract either for rescission or for damages, etc.? No
because if you are not a party. As a rule, you cannot sue
under the contract. Maybe there is one exception where
even if you are not a party, you can become a real party in
interest. Under the law on obligations, where there is a
stipulation in the contract in your favor. That is the only
exception.
Here’s a bar problem based on actual case:
BALIWAG TRANSIT vs. CA
169 SCRA 849
A college student, while riding on
a bus owned by Baliwag Transit, sustained
injuries because of a vehicular accident.
He was a professional student. His parents
had to defray all the expenses for his
hospitalization. After he was discharged
from the hospital, the parents hired a lawyer
to file an action for damages based on
culpa contractual against Baliwag Transit.
So the case was filed. A, the son, and B &
C, parents, plaintiffs vs. Baliwag.
When the case was ongoing,
Baliwag Transit offered the student a
settlement. Pwede bang areglo?
Pumayag naman ang estudyante. So, he
no longer pursued his case. So, based on
the settlement, Baliwag moved to dismiss
the case. The parents here objected. “We
are objecting because we are also
plaintiffs. There are three plaintiffs here, our
son plus the two of us. Remember kami ang
gumasta. Even if our son settled with the
bus company, the case cannot be
withdrawn because we are objecting and
we are also the real parties in interest.”
Said the SC: Dismiss the case. The
parents are not the real parties in interest.
They were not the passengers. Even if they
were included in the case, in reality, they
are not the real parties in interest. The real
parties in a contract of carriage are the
parties to the contract itself. In the absence
of any contract of carriage between the
transportation company and the parents of
the injured party, the parents are not real
parties in interest in an action for breach of
that contract.
Representative Party
Sec.3.Representatives as parties. - Where the action
is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the real
party in interest. A representative may be a trustee
of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be
sued without joining the principal except when the
contract involves things belonging to the principal.
(3a)
Well, a good example is a minor (below 18). He cannot sue or
be sued because of his minority. But suppose the minor is
injured, or the minor commits a wrong, how can he sue or how
can he be sued? Now, under the law, the minor can sue but
the action must be prosecuted and defended by a
representative or someone acting in a fiduciary capacity.
A minor will sue or will be sued together with his guardian, his
natural parents or a guardian appointed by the court
because a guardian is regarded as a representative party.
That is what is meant by representative party. But take note
that while the law allows the guardian to file the case as
plaintiff or defendant in a representative capacity, the minor
shall also be included in the title of the case. So, the minor
PLUS the parent.
Another example of a representative party is the trustee of an
express trust. The trustee is the representative of a trust
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foundation. So, the trustee is the representative party in a case
involving trust.
Another example is the estate of a deceased person. When a
man dies, what would be left and will be divided among his
heirs is the so-called estate. But before the estate is
partitioned among the heirs, it is still intact, the estate of a
deceased person can be considered as a party. And who will
represent the estate in a case for or against it? The legal
representative of the estate called the executor or
administrator. This will be studied more in detail in the law on
Special Proceedings.
So these are examples of representative parties. Now, there is
one interesting case about representative party which was
decided by the SC before, about 7 years ago, the case of :
CHING vs. CA
181 SCRA 9
A wants to file a case against B who
happens to be indebted to him. The trouble
is he cannot find B. He was trying to look for
him. Although he has been receiving reports
that B is already deceased but he is not
sure. He prepared a complaint through his
lawyer:
A, plaintiff vs. B and/or the estate of B,
defendants.
Meaning, if B is alive, I will sue him. If he is
dead, it is his estate. Alternative
defendants, ba. And he was able to obtain
a judgment against B and/or the estate.
But it turned out later that B is really dead.
But A still wants to enforce the judgment
against B’s estate. Can the decision of the
court be enforced against the defendants?
ISSUE 1: Is the decision valid against B?
(Take note that when he was sued, it turned
out that he was already dead.)
And the court said: The decision insofar as B
is concerned is void for lack of jurisdiction
over his person. He was not and he could
not have been validly served with summons.
He had no more civil personality. His
juridical personality that is fitness to the
subject of legal relations was lost already
through his death. That is under Art. 37 & 42
of the Civil Code.
ISSUE 2: How about the alternative
defendant, his estate, which is supposed to
be a juridical person?
The court said: The same conclusion will still
be inevitably reached notwithstanding the
joinder of B’s estate as co-defendant. It is a
well-settled rule that an estate can sue and
be sued through an executor or
administrator in his representative capacity.
He should have included as defendant the
administrator or executor under Sec. 3. He
did not, so, the judgment is also void against
the estate.
Now, the last sentence there involves agency which is a third
year subject. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued without
joining the principal. Normally, an agent is not the real party in
interest. We have already discussed that in Sec. 2. An agent
cannot be the real party in interest. But when an agent is
acting in his own name and for the benefit of an undisclosed
principal, then he can sue or be sued. He is actually acting for
himself because he did not disclose the name of the principal
except when the contract involves things belonging to the
principal. He cannot bind the principal to a case without
naming the principal as the party as plaintiff or defendant.
Sec.4. Spouses as parties. - Husband and wife
shall sue or be sued jointly, except as provided by
law. (4a)
Well, let us go back to the Family Code where the husband or
the wife live together under the regime of absolute community
property or conjugal partnership. It is all for one and one for
all. If you want to bind the property of the spouses, you have
to sue both of them. Meaning if the wife borrowed money,
and she does not pay, if you sue, you include also the
husband as defendant and vise-versa. If the wife would like to
sue somebody who owes her, since the proceeds will be for
the benefit of the absolute community or conjugal partnership,
she must also include her husband as co-plaintiff.
Then, the law says: Except as provided by law. There are
instances where the husband or the wife can sue or be sued
alone without joining the other. A good example is when
there is a separation of property between them during the
marriage. Let us read Art. 111 of the Family Code where the
act of one spouse only concerns him or her.
Art.111. A spouse of age may mortgage,
alienate, encumber or otherwise dispose
of his or her exclusive property without
the consent of the other spouse and
appear alone in court to litigate with
regard to the same. (Family Code)
A spouse may mortgage, alienate, encumber, etc. alone his or
her separate property and can appear in court alone. So
that’s a good example where a husband or a wife is sued
alone as provided by law. But normally, they should be
together.
Now, suppose the wife sued alone without joining the husband
or she was sued alone without being joined by the husband. Is
that a ground to dismiss the action because there is no
observance of Sec. 4? Well, it would depend on whether you
would consider the defect as something substantial or
something formal. If it is merely a formal error, then it can be
cured by amending the complaint to include the other
spouse.
Sec.5. Minor or incompetent persons. - A minor
or a person alleged to be incompetent, may sue or
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 be sued, with the assistance of his father, mother,
guardian, or if he has none, a guardian ad litem.
(5a)
Yes, that is related to Sec. 3. A minor or a person alleged to be
incompetent. You may not be a minor but you are suffering
from mental disability. Can he sue or be sued? Yes, with the
assistance of his father or mother or a representative party. If
he has none, then, a guardian ad litem. Meaning, a court-
appointed guardian. Because in the case of a minor, there is
no need for a father or a mother to be appointed. That’s
automatic. Natural guardians yan.
Now let’s go to Sec. 6. This is the third type of party to a civil
action which I mentioned. Permissive parties.
Permissive Party
Sec.6. Permissive joinder of parties. - All
persons in whom or against any right to relief in
respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may,
except as otherwise provided in these Rules, join
as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact
common to all such plaintiffs or to all such
defendants may arise in the action; but the court
may make such orders as may be just to prevent
any plaintiff or defendant from being
embarrassed or put to expense in connection with
any proceedings in which he may have no
interest. (6)
Actually we have already touched this section briefly. This was
mentioned in Rule 2, Sec. 5(a). Let’s try to recall. Let’s go back
to the previous rule.
Sec. 5. Joinder of causes of action. - A party may in
one pleading assert, in the alternative or otherwise,
as many causes of action as he may have against
an opposing party, subject to the following
conditions:
a) The party joining the causes of action shall
comply with the rules on joinder of parties;
That is one of the conditions for joining causes of actions.
Observe the rules on joinder of parties. Where do you find the
rule on joinder of parties? It is here in Sec. 6.
Joinder of Parties, Requisites
May two or more persons join together as co-plaintiffs in one
complaint? In the same manner, may two or more persons be
joined together as co-defendants in one complaint? The
answer is yes on two conditions. In order for joinder of parties
to be permitted the conditions laid down by law are the
following:
1. There is a right to relief in favor of or against
or against the parties joined in respect to or
arising out of the same transaction or series of
transactions, and
2. There is a question of law or fact common
to the parties joined in the action.
If these two conditions are met, then the joinder of parties is
proper. If these conditions are not met, then the parties are
improperly joined. The example I gave you last time was about
three passengers riding on the same bus, met an accident
and all of them were injured. Can they file together in one
complaint against the bus company? Yes, because their
cause of action arose out of the same incident and there is a
question of fact or law common to the three of them. The
evidence is identical. The defenses the same. There is a
common denominator.
But suppose these passengers were riding on different buses
on different trips although all the buses belong to the same
company and all of them injured. Can they join in one
complaint? No. There is no similarity between their claims.
The story of A does not concern B. What happened to B does
not concern C. The defenses of the bus company may be
different. There is no common denominator. So, there is
misjoinder of parties. If there is misjoinder of parties, you
cannot join their causes of action under Rule 2.
Here’s an example based on decided cases. X destroyed the
house belonging to A. Said house is being leased to B. Is there
a cause of action by the owner against X? Yes. Is there a
cause of action by the occupant against X? Yes. The owner
of the house and the occupant may join together their cause
of action. There is a common question and it arose out of the
same incident.
Another example: A newspaper editor wrote a libelous article
in the newspaper calling A, B and C as thieves. So the three
decided to file an action for damages arising from libel. The
same libelous article appearing on the same date. Can they
join together in one complaint to claim against the editor?
Yes, because there is a common question of fact and law.
Another case. Through the recklessness of X, he bumped a
vehicle owned by A damaging it, injuring B the driver of the
vehicle and C, a passenger. So there were three persons
aggrieved. A, the owner of the car which was damaged, B
the driver of the vehicle which was injured and C, the
passenger. Can the 3 of them join in one complaint against X?
Yes. There is a common question of fact or law.
So, these are illustrations of joinder of causes of action. Now, is
joinder of causes of action mandatory? Is a party obliged to
join together his cause of action with the others? Are they
obliged to file only one case against the defendant? No.
Permissive eh. Permitted but not mandatory. They can pursue
their own cause of action separately. But while it is true that
joinder of causes of action is permissive, it is encouraged,. The
law encourages lawyers and parties to apply Sec. 6. Why?
These are the advantages cited:
1. To promote convenience in trial,
2. To prevent multiplicity of suits,
3. To expedite the termination of the
litigation, and
4. To attain economy of procedure
under which several demands arising
out of the same occurrence may be
tried together thus avoiding the
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 repetition of evidence relating to facts
common to the general demands.
Let me illustrate that. We will assume that there are 50
passengers in a bus who met an accident. 50 plaintiffs. 50
causes of action. Each one files his own case. So there are 50
cases. Imagine ang kalendaryo ng court. The cases will be
heard 50 times. But if they are joined together one time lang,
di ba? If there is no joinder of parties, the evidence will have
to be reintroduced 50 times. Halimbawa, ang police report.
The police will testify in court 50 times. Balik-balik siya sa court.
Whereas, if the 50 will join together and he is called to testify,
he is testifying for 50 cases simultaneously. It is more
convenient. Kaya while it is permissive, it is encouraged.
Now, take note that the rule on joinder of parties is closely
related to the rule on joinder of causes of action in Rule 2.
Kaya Rule 2 points to Rule 3. When there is joinder of parties,
there is automatically joinder of cause of action. But there
can be joinder of causes of action without joinder of parties. I
repeat:
When there is joinder of parties under
Rule 3, there is automatically joinder of
causes of action in Rule 2. But there
could be joinder of causes of action in
Rule 2 without joinder of parties in Rule 3.
Let me try to illustrate that. If A, B and C who were the injured
passengers decide to sue together the transportation
company, is there joinder of parties? A, B and C, plaintiffs vs. X
& Co. Yes. Is there joinder of causes of action? Yes. So, if
there is joinder of parties, there is also joinder of causes of
action.
I will change the problem. You borrowed money from me 3
times, 3 loans. You did not pay a single one. So I filed a case
against you to collect the 3 loans. Is there joinder of causes of
action? Yes. Is there joinder of parties? None. Simple. Isa
lang ako. Isa ka lang. In other words, I have no co-plaintiff
and you have no co-defendant. There is no joinder of parties
because there is only one plaintiff and one defendant. But
there is there is joinder of causes of action because I have 3
causes of action against you. When there is joinder of parties,
there is joinder of causes of action. But there could be joinder
of causes of action but no joinder of parties.
Indispensable Party
The last two important parties to a civil action that we shall
discuss are the so-called indispensable parties and necessary
parties. The concept of indispensable party is found in Sec. 7
and necessary party in Sec. 8. Let us read them:
Sec. 7. Compulsory joinder of
indispensable parties. - Parties in
interest without whom no final
determination can be had of an
action shall be joined either as
plaintiffs or defendants. (7)
Sec. 8. Necessary party. - A
necessary party is one who is not
indispensable but who ought to be
joined as a party if complete relief
is to be accorded as to those
already parties, or for a complete
determination or settlement of the
claim subject of the action. (8a)
How do we define indispensable party? The word
indispensable is suggestive, no. Indispensable party has been
defined by the SC as one who must be joined under any and
all conditions, his presence being a sine qua non of the
exercise of judicial power for without him no final
determination can be had of the action. Meaning, he must be
included in the case either as plaintiff or defendant. Suppose
di natin isama. Then the case cannot go on. It must be
dismissed. Indispensable eh. Kaya nga, under the law, the
joinder of an indispensable party is compulsory. He must be
there whether you like it or not. You remove him and the case
will have to be dismissed. The case cannot go on without him.
If I want to recover the ownership of a piece of land which is
titled in the name of A, A becomes an indispensable party in
this case for recovery of ownership. Without A, the case for
recovery cannot proceed and the case will have to be
dismissed.
Another example: In the subject of Property, in a co-ownership
particularly, there is a piece of land but owned by two or more
people. Undivided ba. Under the Civil Code, a co-owner can
force a partition.. Normally those properties that are under co-
ownership are inherited by brothers and sisters. The father
owns a piece of property. He dies. Namana ng apat na
anak. So ang nasa title, apat sila. So all of them are co-
owners. Now, in a co-ownership, you cannot own a specific
part as yours. You own 1/4 without reference to any part.
Basta 1/4. The problem with co-ownership is that it is not totally
yours. Marami kayo may-ari. If somebody wants to rent the
property, dapat payag kayong lahat. We want to sell the lot.
Or mortgage. Lahat tayo pipirma. It will happen, as it
happens often times, one co-owner mabuwisit na. Samok, eh
So, mag-file ng case for partition to split and end the co-
ownership. Under the law, all co-owners must be included in
the case. So, if there are four of us, I must file the case against
the three of you. If I file only against two of the co-owners, the
case will be dismissed because in an action for co-ownership,
every co-owner is an indispensable party. Without him, the
action for partition cannot proceed.
Necessary Party
Define or differentiate a necessary party under Sec. 8. A
necessary party is one who ought to be joined whenever
possible in order to adjudicate the whole controversy and
avoid multiplicity of suits. But if for some reason or another he
cannot be joined, the court may proceed without him and the
judgment shall not prejudice his rights. In effect, as
distinguished from an indispensable party where his joinder is
compulsory, in a joinder of a necessary party, it is very
advisable to include him. But kung hindi talaga pwedeng
isama, eh di okay, the case can go on without him
Suppose A is the creditor, B is principal borrower of a loan and
C is the surety. Surety, one who has assured ba. Para na rin
siya ang umutang. Similar to a solidary co-debtor. B borrowed
money and C signed the promissory note as surety but actually
he did not get a single centavo. But pagdemandahan na, A
can collect everything from C, right? So, B did not pay the
loan.
Q: Can A sue C the surety alone to collect the entire loan
without including B?
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A: Yes. But C can collect later from B. That is his right.
So, A can file a case against C alone to collect the
entire loan. But later, on what will happen? Kung magbayad si
C, C will also file a case against B to reimburse him. Since the
case can go on with C alone, therefore, B is a necessary party.
But it is advisable to join B in one case, para pag nag-claim si
A kay C, C can automatically claim from B. One time ba.
Tapusin na natin ang gulo kesa mag-file na naman ng another
case. That is a necessary party.
Q: In the same manner, if A wants to collect the loan and he
files a case against B only, he will not include the surety, can
the case proceed against B only?
A: Yes. Therefore C is only a necessary party.
Another situation. A, creditor, B and C, debtors. They are
joined debtors. In your study of obligations, what is the
difference between joint debtors and solidary debtors?
Assuming that B’s share is 50 and C’s share also 50, if the
obligation is solidary, can A collect from B everything including
the share of C? Can A collect from C including the share of B?
Yes. Yan ang concept ng solidary.
Q: Now if the obligation is joined, how much can A collect
from B?
A: 50 only. He cannot compel B to pay the share
of C. In the same manner A cannot compel C to
pay B’s share. Kanya-kanya tayo. That is joint.
The obligation is 100 and the obligation is joined.
Q: If A files a case against B only, is C indispensable or only
necessary?
A: The case of A against B can proceed without C but you
can collect only 50.
Q: But if A wants to collect the entire P100, what should he do?
A: He should file a case against both. In the same
manner if A files a case against C without
including B, A can collect only 50. Therefore, if he
wants to collect the P100, he should also implead
B.
Q: So, how do you classify B and C? Necessary or
indispensable?
A: Insofar as the share of B is concerned, B is
indispensable. You cannot collect his share if you do not
include him. But insofar as collecting the entire amount C
becomes a necessary party. And vise versa. C is
indispensable insofar as his share is concerned but for the
purpose of collecting the entire amount he is only a
necessary party.
In other words, dual personality. You are indispensable as to
your share. For the entire share, you are only necessary. So
that is a good illustration on who is indispensable and who is a
necessary party.
Let’s go to Sec. 9 As I said the law encourages joinder of
parties.
Sec. 9. Non-joinder of necessary parties to be
pleaded. - Whenever in any pleading in which a
claim is asserted a necessary party is not joined,
the pleader shall set forth his name, if known, and
shall state why he is omitted. Should the court find
the reason for the omission unmeritorious, it may
order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
The failure to comply with the order for his
inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does
not prevent the court from proceeding in the
action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party. (8a, 9a)
As we said, the law encourages the joinder of a
necessary party in order to ajducate the entire controversy in
one case. Because if you do not include him, it will give rise to
another possible case in the future. The law commands a
pleader, whenever he does not implead a necessary party, he
shall state why he is omitted to give an explanation. Why are
you not impleading this guy? And if the law finds that the
omission of the necessary party is unmeritorious the court may
say: Amend your complaint. Provided there is a way for the
court to acquire jurisdiction over his person. Sabi ng Plaintiff,
“Your honor gusto ko sanang isama si B pero umalis na raw.
Wala na sa Pilipinas.” Okay lang yan. The court cannot
acquire jurisdiction over his person, eh. Pero if he just there,
the court will command the plaintiff to amend the complaint.
You refuse? The court will say, “From now on you cannot claim
against him forever”. That is the 2nd par.
Sec. 10. Unwilling co-plaintiff. - If the consent of
any party who should be joined as plaintiff can
not be obtained, he may be made a defendant
and the reason therefor shall be stated in the
complaint. (10)
For example, there are 2 indispensable parties,
myself and you. I want to sue X but you are an indispensable
part. Dapat kasali ka because without you, I cannot sue X.
But sabi mo: “Ayaw ko. I am not authorizing you to use my
name.” So hindi ako makakilos. Your remedy? Isama natin as
defendant. Yan. You will now be a party to the case. He is
made a defendant.
Sec. 11. Misjoinder and non-joinder of parties. -
Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action. Parties may be
dropped or added by order of the court on
motion of any party or on its own initiative at any
stage of the action and on such terms as are just.
A claim against a misjoined party may be
severed and proceeded with separately. (11a)
Misjoinder vs. Non-joinder
There is misjoinder of parties if a party should not be
joined but he was joined by
mistake. Ex: No common question of fact and law. So, if you
join them, there is misjoinder
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of parties. Non-joinder is baliktad. Parties should be joined but
he was not joined.
If there is misjoinder or non-joinder, is that a ground to
dismiss the case? No, that is not really a fatal defect.
Because the law says parties may be added or dropped by
order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are
just. In the case I already mentioned about a wife suing alone
when actually the husband should also be included as co-
plaintiff, under Sec. 4, the husband and wife should sue or be
sued together. That is non-joinder. So, the remedy is for the
court to order the wife or husband to amend the complaint.
But do not dismiss the case.
Here’s a situation. I want to file a case against
somebody in this class but I am not so sure who committed the
delict or wrong, so para walang samok, I will file a case
against all of you. Then, in the course of the trial, wala ka
palang kasalanan, then tanggal ka. Hanggang maiwan ang
isa. Can I resort to that tactic? Sabi ng SC: You cannot do
that. Sec. 11 is not a license to indiscriminately sue people.
What is contemplated by Sec. 11 is that there was a mistaken
joinder in good faith. Not to put people in trouble. That is not
the intention of this provision. That matter was explained the
SC in the cases of: LIM TAN HU vs. RAMOLETE (66 SCRA 425),
reiterated in the case of:
RP vs. SANDIGANBAYAN
173 SCRA 72
The SC, in explaining the reason
behind Sec. 11, Rule 3 said, “It does not
comprehend whimsical and irrational
dropping or adding of parties in a
complaint. What it really contemplates is
erroneous or mistaken non-joinder and
misjoinder of parties No one is free to join
anybody in court only to drop him
unceremoniously later at the pleasure of the
plaintiff. The rule presupposes that the
original inclusion had been made in the
honest conviction that it was proper and
the subsequent dropping is requested
because it turned out that such inclusion
was a mistake. That is what is
contemplated by law.
Now there is a provision that we had already
touched which is identical to this. Let us go back to Rule 2.
Sec. 6.
Sec. 6. Misjoinder of causes of action. -
Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of
action may, on motion of a party or on the
initiative of the court, be severed and proceeded
with separately. (n)
The same idea no? The only difference is that:
1. Rule 2, Sec. 6 talks of misjoinder of causes of
action; whereas
2. Rule 3, Sec. 11 talks of joinder of parties.
But whether it is misjoinder of causes of action or
misjoinder of parties, it is not a ground for dismissal of the case.
You only remove the misjoined party or the misjoined cause of
action.
Class Suit
The Doctrine of Virtual Representation
The next section is one of the most important
provisions of Rule 3, class suit.
Sec. 7. Class suit. - When the subject matter of
the controversy is one of common or general
interest to many persons so numerous that it is
impracticable to join all as parties, a number of
them which the court finds to be sufficiently
numerous and representative as to fully protect
the interests of all concerned may sue or defend
for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual
interest. (12a)
Under the law, as a general rule, all real
parties in interest should be included in the case
either as plaintiffs or defendants. And when you say
real party in interest, it could either be indispensable
or necessary party. But sometimes there may be
difficulty in joining all when there are so many that to
join them would be impracticable. The doctrine of
class suit, also known as the doctrine of virtual
representation originated in a case decided by the
SC years ago, the case of:
BORLAZA vs. POLISTICO
47 PHIL 345
A group of people somewhere
there in Luzon, organized an association
which they called Turnuhang Polistico. Ito
ang kanilang scheme no. Every Sunday
near the church, they invite people to join
the association. You join by paying a
membership fee. They collect P10 each.
50% of the collection is one’s membership
fee. The other 50% is raffled among those
who contributed and who ever is the lucky
person wins a prize. Para bang lottery. But
you are already a member. The following
week, they will do it again. If you join once,
even if you do not join the raffle, basta
member ka na. But if you want to join the
raffle, okay lang. Now, this has been going
on for weeks, months, and years that the
funds of the association accumulated.
Every week 50%. Wala naman silang
ginagawa. So some members decided to
dissolve the association and have an
accounting of all the 50% collected as
membership fee.
So a case was filed. But the
trouble is they don’t not know exactly how
many members they have. There must be
hundreds already or thousands. So it was
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 impossible to gather all of them and get
their names. So, some of them filed the
case not only for themselves but also in
behalf of the other members. Technically, if
you follow the rule, everyone must be
named in the complaint. But it is next to
impossible to gather all of them and identify
them. Is the suit filed by some members in
behalf of some members proper?
And the court said YES. That is a
concept of a class suit. In a class suit, you
are suing for yourself and for others who are
similarly situated. What are the requisites for
the application of a class suit?
1. The subject matter of the controversy is
one of common or general interest to many
persons; and
2. They are so numerous that it is
impracticable to join all as parties.
In which case, a number of them which the court
finds to be sufficient and numerous and representative as to
fully protect the interests of all concerned may sue or defend
for the benefit of all. And that is what is called a class suit. You
are suing not only in behalf of yourself but also in behalf of the
other members of your group.
In your study of Political Law, you must have read
some cases there where a group of taxpayers filed a case to
question a certain act of government. They say, “We are
suing the government in behalf of the taxpayers all over the
country”. That is a type of class suit because if you will require
all the taxpayers in the country to join together that is
impossible. There must be millions of us. So difficult.
There are some interesting cases on class
suit.
OPOSA vs. FACTORAN, JR.
224 SCRA 792 (1993)
Opposa, et al are minors and they
sued former DENR Sec. Fulgencio Factoran,
Jr. with the assistance of their parents under
Sec. 5. They were suing the government
because according to them, they are
citizens of the Republic, taxpayers, entitled
to the full benefit, use and enjoyment of the
natural resource treasure, that is, the
country’s virgin tropical forests. They were
filing the complaint for themselves and
others who are equally concerned about
the preservation of said resource. But they
are so numerous that it is impracticable to
bring them all before the court. How many
people here have an interest in
environment? Practically, the whole
country. You cannot require all to join in the
complaint.
But what is unique in this case is
that, according to the minors, they also
represented their generations as well as
generations yet unborn. Then they were
asking that the court should order Sec.
Factoran to cancel the existing timber
license agreements in the country, to cease
and desist from receiving, accepting,
processing, renewing, or approving new
timber license agreements. So, practically
they were asking for a total log ban.
Now, is this a class suit? The SC
said: Tthe said civil case is indeed a class
suit. The subject matter, which is the rain
forest, is of interest to the whole country and
the people are so numerous and it is
impracticable to bring them all to court. But
the SC further said that this case has a
special and noble element because these
minors assert that they represent their
generation as well as generations yet
unborn. Meaning, they are filing this case
not only in behalf of ourselves but for future
generations. For Filipinos to be born in the
future. Can you file a class suit in behalf of
the people who are not yet even born? Is
that a proper class suit?
And the SC said: We find no
difficulty in ruling that they can for
themselves and for others of their
generation and for the succeeding
generations file the class suit. Their
personality to sue in behalf of the
succeeding generations can only be based
on the concept of intergenerational
responsibility insofar as the right to a
balanced and healthful ecology is
concerned. Such a right considers the
rhythm and harmony of nature. Needless to
say, every generation has a responsibility to
the next to preserve the rhythm and
harmony for the full enjoyment of a
healthful and balanced ecology. Put a little
differently, the minor’s assertion of their right
to a sound environment constitute at the
same time the performance of their
obligation to ensure the protection of that
right for the generations to come.
So if you’re asked, what do you understand by inter-
generational responsibility? That is the case of Factoran, when
you are suing for the protection of the environment for our
benefit and the benefit of future generations. That is your
obligation not only to yourself but for people to be born in the
future. You do not destroy the country. You do not pillage the
environment.
It is a very unique case. Did you touch this case in
Environmental Law? Another case where the SC made a
pronouncement on a class suit decided in 1994 is the case of:
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 CADALEM vs. POEA ADMINISTRATOR
238 SCRA 721
One of the matters
commented upon by the SC was: Suppose
there is a proposed class suit. There is doubt
as to whether it will qualify or not. Because
if it will not qualify as a class suit, all these
people cannot sue. If it will qualify, okay.
Now, in case of doubt, as to whether it will
qualify or not as a class suit, how should the
doubt be resolved?
The SC said: In case of
doubt, the doubt should be resolved
against the class suit. Because remember,
it’s a fiction of law. You are not only
representing yourself but you are also
representing other people who are not
even aware of that. Now, suppose they will
disown you. Who authorized you to file that
case in my behalf? Malaking problema.
Kung daog, okay lang. Kung pildi, naloko
na. So I lost in a case I didn’t even know
was filed. That is dangerous. That is why the
SC in this case:
The court is extra
cautious in allowing class suits because they
are the exceptions to the conditions sine
qua non requiring the joinder of all
indispensable parties. As a general rule,
indispensable parties can only be included.
In an improperly instituted class suit, there
would be no problem if the decision
secured is favorable to the plaintiffs. The
problem arises when the decision is adverse
to them. In which case, the others who
were impleaded by their self-appointed
representatives would surely claim denial of
due process.
So, that is another interesting pronouncement by the
SC on class suit. Then the earlier case of:
SULO NG BAYAN, INC. vs. ARANETA, INC.
72 SCRA 347
Sulo ng Bayan is an
organization of people who are occupying
a tract of land somewhere in Quezon City
owned by Araneta, Inc. There is this big
tract of land owned by the Aranetas na gi-
enter nila. They subdivided it into lots, 300-
400 sq. meters. Hinati-hati nila. And then
they organized themselves into an
association which they called Sulo ng
Bayan, Inc. In other words, they are
occupants, homeseekers. That is
euphemism for swapping. The association
filed a case against Araneta questioning
the title or ownership of Araneta Inc.
One of the procedural
issues which the SC was asked to answer is:
Is sulo ng bayan a real party in interest
because the defendant questioned the
filing of Sulo ng Bayan under Sec. 2. Every
action must be prosecuted in the name of
the real party in interest.
And the SC said; Sulo ng
Bayan is not the real party in interest under
Sec. 2. Why? Because the real parties in
interest are the occupants, not the
association. It is not the association who is
occupying the land. So it is the members.
The case must be filed in behalf of the
members not the association.
The second issue was:
Can the association claim it is filing it as a
class suit? It is filing it in behalf of its
members as a class suit?
The SC said: Are the
occupants so numerous that it is
impracticable to bring them all before the
court? But the second more important
requirement: Is the subject matter of
common or general interest to all of you?
No. Why? While we are talking here of a
whole land, but actually you have divided it
into parcels. hinati-hati nyo na. Lote-lote.
ikaw, doon ka sa lot # 1. Ikaw, doon ka sa
lot # 2. Therefore, the interest of one
occupant is only on one lot. He has no
interest on the other lots. I am not
interested in the lot of my neighbor. I am
only interested in the lot I am occupying.
And vise-versa. so you cannot say the
subject matter is of common or general
interest to all. Therefore, the second
requisite is also missing. So, there could be
no class suit.
Class Suit vs. Representative Suit
One of the latest, the recent case
of:
LIANA’S SUPERMARKET vs. NLRC
May 31, 1996, 257 SCRA 186
This is a labor case. A group of
employees wanted to file a case against
their employer for certain unpaid benefits.
The case was filed in their behalf by their
union, the National Labor Union (NLU). In
the study of labor code particularly Art. 242,
a legitimate labor organization is allowed to
sue in behalf of its members. Therefore, the
NLU filed the case in behalf of its members
numbering about 200. The question asked
was: Is that a class suit where a union under
the labor code files a complaint against the
employer in behalf of its members? No.
That is not a class suit under Sec. 12. That is
a representative suit under Sec. 3. So, the
union is a representative party. So the SC
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 distinguished a representative suit from that
of a class suit.
Well of course the main distinction is that in a class
suit, the subject matter of the controversy is one of common
interest to many persons. Meaning, there is only one right or
one cause of action pertaining or belonging in common to
many persons. But when each one of us has separate
individual rights (e.g., unpaid wages - Our employer has not
been paying us our wages, so I would like to file a case.) Do
you mean to tell me your cause of action is also mine? Kanya-
kanya man tayo ba. Kaya lang, magkahawig. That is not a
class suit but a labor union under Art. 242 of the labor code.
Where the union files a case in our behalf to collect the
wages, it is not a class suit but it is acting as a representative
party.
And the purpose of the labor code in allowing a
union to file a case in behalf of its members is it would be
cumbersome to include all the members or all the employees.
So in order to expedite or simplify the filing, the labor code
allows it. But in doing so, it is filing a representative suit under
Sec. 3. It is not filing a class suit under sec. 12. that was the
distinction given. To borrow the language of the SC:
What makes a situation a proper
case for a class suit is the circumstance
where there is only one right. One right for
cause of action pertaining or belonging to
many persons. Not separate claims or
severally to distinct individuals. The object
of the suit is to obtain relief for or against
numerous persons as a group or as an
integral entity and not as separate distinct
individuals whose rights or liabilities are
separate from and independent of those
affecting the others.
In the present case, when there
are many employees claiming benefits,
there are multiple rights or cause of actions
pertaining separately to several distinct
employees who are members of the NLU.
Therefore, the applicable rule is provided in
Sec. 3, Rule 3 of the rules of court on
representative parties. One of the rights
granted under the labor code to a
legitimate labor organization like NLU is to
sue and be sued in its registered name. The
aforementioned provision authorizing the
union to file a representative suit for the
benefit of its members in interest of avoiding
an otherwise cumbersome procedure of
joining all union members in the complaint
even if they number by the hundreds.
So I hope you can distinguish now one from
the other. Let’s go to sec. 13.
Sec. 13. Alternative defendants. - Where the
plaintiff is uncertain against who of several persons
he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a
right to relief against one may be inconsistent with
a right of relief against the other. (13a)
Can I sue two or more people where I am not sure
who is liable to me? Yes, I will sue both of you as alternative
defendants. There was a bar problem. I goes something like
this: While A was coming down the stairs, he noticed that
there were two people behind him, X and Y. Basta he felt a
hand pushed him and he fell down. Nabalian siya. The one
who pushed me is either X or Y. I am not so sure kung sino.
Sabi ni X: Hindi, siya. Sabi ni Y: Hindi siya, siya. Now if you are
the lawyer of the injured person, what will you do? I will sue
both of you. I will name you as alternative defendants. Let the
court decide who is liable to me. So, bakbakan sa court. Yan.
There was another bar problem. A approached X
and told X.: “Mr. X, my amo B requested me to borrow money
from you.” “O, sige.” So, pinahiram. Sabi ni A: “Inutusan lang
ako. I am the attorney in fact or the agent of B.” When the
loan fell due, X went to B and asked B to pay the loan. “What
loan?” “Yung loan ba. Inutusan mo si A di ba? Oone month
ago, you requested your friend to come to me to borrow
money from me? “I never authorized A. kanya yan. Hindi
akin yan”. So, punta naman siya kay A. “Yung kinuha mo na
kwarta hindi naman pala yun kay B. Sa iyo pala yon. Kunin ko
na ang bayad.” “Ano ka, siya ang nag-utos sa akin.”
Na, naloko na. In other words, nagtutulakan na. If A
is acting as the agent, the real party in interest is the principal.
But if A is lying, he is the one liable. If you are the lawyer of X,
whom will you sue? I will sue both of them as alternative
defendants because I am uncertain against who of several
persons I am entitled to relief.
He may join any or all of them as defendants in the
alternative although a right to relief against one may be
inconsistent with the right of relief against the other. Your
action against one may be inconsistent with your cause of
action against the other. An example to that would be: You
are riding on a bus which is bumped by another bus. if the
one who is at fault is the driver of the bus where he was riding,
your cause of action against the operator is damages arising
from culpa aquiliana. But if you sue the owner of the other
bus, your cause of action is damages arising from culpa
contractual. Either one is at fault but not both. But since I am
not sure, I might as well sue both of you. Although my right to
relief against one might be inconsistent. Because if A is liable,
B is not liable. And vise-versa. Basta I will sue both of you
alternatively. Yan.
Another example: Your cargo is placed on board a
vessel consigned to you in Davao. When it arrived in Sasa, it
was deposited in the bodega of the stevedoring company.
Then from there it was delivered to you. Eh, sira, damaged.
You complained to the stevedoring company but it denied
any responsibility. The damage occurred while it was still on
the vessel. So punta ako sa may-ari ng vessel. Deny din. That
was in good condition. The damage occurred doon sa
bodega. Again, you are not certain who is liable so you sue
both under Sec. 13 as alternative defendants. Although your
cause of action against the shipping company is maritime or
admiralty, your cause of action against stevedoring company
is arising from a contract of deposit under the civil code on
credit transactions, that is allowed. In effect, when you name
two or more defendants as alternative defendants, you are
also joining two causes of action alternatively. That is why this
is also related to rule 2, Sec. 5. There is joinder of causes of
action. Let us go back to Rule 2, Sec. 5.
Sec.5. Joinder of causes of action. - A party may
in one pleading assert, in the alternative or
otherwise, as many causes of action as he may
have against an opposing party, subject to the
following conditions:
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You noticed? How do you join cause of action?
Alternatively or other wise and a good example of an
alternative joinder of cause of action is when you sue two or
more defendants alternatively also under Sec. 13 Rule 3.
Let us just touch Sec. 14 because it is not really complicated:
Sec. 14. Unknown identity or name of defendant. -
Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown
owner, heir, devisee, or by such other designation
as the case may require; when his identity or true
name is discovered, the pleading must be
amended accordingly. (14)
A was bumped by a car, blue car, Toyota corolla
1996 model with plate no 1234. I want to sue. Hanapin natin
kung sino ang may-ari niyan. Who is the registered owner?
Okay, I will file. Sino ang tao na yon? I will just say: A, plaintiff
vs. the registered owner of blue car, 1996 model Toyota
corolla, with plate no. 1234. That is suing an unknown
defendant. That is allowed by the rules. Then later on, I
discovered who is the owner. I will amend the complaint to
change the defendant from an unknown owner to so and so.
What is the counterpart of this in Criminal Procedure?
Under the law on criminal procedure, can you file a complaint
or information against an accused whose name is unknown?
Yes. People of the Philippines vs. John Doe. Once the identity
of the accused is known, you will amend your complaint or
information. So, even in criminal procedure, the law allows the
filing of a complaint or information against an unknown
accused. In civil cases, that is also allowed as we have
already learned.
Sec. 15. Entity without juridical personality as
defendant. - When two or more persons not
organized as an entity with juridical personality
enter into a transaction, they may be sued under
the name by which they are generally known or
commonly known.
In the answer of such defendants, the
names and addresses of the persons composing
said entity must all be revealed. (15a)
When two or more persons form a partnership, say, A
& Co., the partnership is a juridical person. Therefore, the
company can be sued. Or a group of people will organize a
corporation and they will call it A & Co., Inc., then, it is a
corporation with a juridical personality and therefore it can be
sued. But is it possible for two or more persons to form a group
or association but it has no juridical personality? A good
example is:
Suppose this class will organize and you would call
yourselves as Ateneo Second Year Law Students Manresa.
That is the name of your association. But I do not think that
that is a juridical person. Your class decides to hold a party to
be held in a local place in Davao. Your officers decided to
enter into an agreement with the owner of the place where
the party is to be held. The officers sign the contract. So how
do you do it? Ateneo Second Year Law Students Manresa
Class Association by etc.
Say, for example, your class will not pay the owner of
the place. The owner of the place would like to collect from
you. Sino ang i-demanda niya. Technically, the owner of the
place cannot sue the Manresa Class. Wala man yan ba. That
is only a name of a class. It is not a partnership nor a
corporation. Technically, the real defendants should be all of
you. because you cannot sue an association without a
juridical person. The trouble is, the owner of the place does
not also know are the members of the class. May be only the
president because he was the one who made transactions
with him. We should sue the members of the class, sabi ng
lawyer. And how many are they? About 40. Who are they? I
have no idea. So what will the lawyer do? Here’s the remedy:
I will sue all of you by using the name of the class. In other
words, since you transacted business with me using the name
of the class, I will sue all of you under that name and when you
answer, your lawyer is obliged to identify all of you with your
respective addresses. That is the application of Sec. 15.
The general rule to remember is when you sue several
people, they must all be named in the complaint because the
rule says all real parties in interest, all indispensable parties, all
necessary parties should be impleaded together. But there
are known exemptions to that. The first exception is a class
suit. The second exception is Sec. 15. Now, there is a third
exception. It is not found in the rules of court, it is found in the
civil code of the Philippines. Particularly on the law on
Property. Art. 487.
Art. 487. Any one of the co-owners may bring
an action in ejectment.
Suppose my brothers, sisters and I own a common
piece of land. There are about five of us. I am the only one
here. My brothers and sisters are somewhere else. We are co-
owners. Now, a group of squatters entered and occupied our
property so I decided to file a case of ejectment against them
for forcible entry. And when I file the case, I am the only one
who is named as plaintiff.
Technically, if you follow the general rule, I cannot
sue alone. Since the property squatted is owned by the five of
us. All of us should be suing together as plaintiffs. How come I
am the only one suing? According to Art. 487, pwede. Any
one of the co-owners. It is not necessary that all of us should
be together because when one files an action for ejectment,
actually he is acting for the benefit of the other co-owners. So,
this is one example of an exception to the general rule.
Death of a Party
Let us proceed to the next important provision of the
rules: Death of a Party:
Sec. 16. Death of a party; duty of counsel. -
Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be the
duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and
to give the name and address of his legal
representative or representatives. Failure of
counsel to comply with this duty shall be a ground
for disciplinary action.
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 The heirs of the deceased may be
allowed to be substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said
legal representative or representatives to appear
and be substituted within a period of thirty 930)
days from notice.
If no legal representative is named
by the counsel for the deceased party, or if the one
so named shall fail to appear within the specified
period, the court may order the opposing party,
within a specified time, to procure the appointment
of an executor or administrator for the estate of the
deceased and the latter shall immediately appear
for and on behalf of the deceased. The court
charges in procuring such appointment, if
defrayed by the opposing party, may be
recovered as costs.
Now this provision talks of a death of a party. There is
another provision here talking about a death of a party and
therefore, we shall have to take these provisions together. that
is Sec. 20:
Sec, 20. Action on contractual money claims. - When
the action is for recovery of money arising from
contract, express or implied, and the defendant dies
before entry of final judgment in the court in which the
action was pending at the time of such death, it shall
not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these
Rules for prosecuting claims against the estate of a
deceased person. (21a)
Let us go to some principles in Legal Ethics. Suppose
you are the lawyer of somebody and while the case is going
on, your client dies, what happens now to the lawyer-client
relationship? The relationship is extinguished because it is
purely personal. We call that very confidential, fiduciary.
Once a client dies, whether you like it or not, the relationship
automatically ends. A legal representative of the deceased
or his heirs take over. So if the administrator or executor or the
heirs of the deceased decides to hire another lawyer, there is
nothing you can do. You cannot force yourself. Although in
most cases, chances are they tell you to continue. So you
continue but technically, iba na ang kliyente mo. That is basic
legal ethics.
Now, Sec. 16 imposes an obligation or duty to a
lawyer that when his client dies, he must inform the court within
30 days after such death of the fact that he died. He MUST. At
the same time he must give the name and address of the
legal representative(s) of his client. If the counsel fails to
comply with this duty, the 1997 rules inserts down this last
sentence: Failure of counsel to comply with this duty shall be a
ground for disciplinary action.
Why must the lawyer inform the court about the
name of the legal representative and his address? Because
the court will now have to order a substitution of parties. the
court will now order that since so and so is dead, and his legal
representative is Mr. X, Mr. X is now the new defendant to
substitute for the deceased party.
Now suppose there is still no legal representative,
walang administrator or executor, because that takes time no,
you to go court and get an appointment. Can the lawyer say:
As far as I know there is still no executor or administrator of the
estate but I am now giving you the names of his heirs, surviving
spouse, name of children? Pwede rin. The second paragraph
says so. So, if there is a legal representative, he will be the one
to be substituted. If none, the heirs or the family. if the
children are minors, they must be represented by their
guardian.
Actions which do not survive vs. Actions which survive
But the condition laid down by law is this: (go back
to the first paragraph.) Whenever a party to a pending action
dies and the claim is not thereby extinguished x x x . That is the
condition. The claim is not extinguished by the death of the
party. There are cases where if a party dies, there is no
substitution. The case will have to be dismissed. These are
called the actions which do not survive. Actions which do not
survive refer to cases which will automatically be dismissed if
one of the parties to a case dies. And these cases are very
few. Examples of that would be an action for legal
separation, an action for annulment of marriage, an action for
declaration of nullity of marriage, an action for support. It is
purely personal.
Suppose the husband files a case against the wife for
annulment of marriage or legal separation under the Family
Code. And when the case was on going, the wife died. You
mean to tell me with the death of the wife, her administrator
will take over to continue? Kung namatay ang asawa mo, eh
di the marriage is dissolved. Anong pakialam ng
administrator? So, yan ang kaso na di pwedeng magtuloy.
Patay na. These are actions which do not survive. The claim is
extinguished. That is based on a latin maxim accio personadis
moritur cum persona. It means the death of one of the parties
to the action causes the death of the action itself.
But these types of cases are very very few. they are
limited mostly to those I’ve mentioned. Mostly under the
Family Code. Majority of cases are not like that. Collection of
damages, recovery of property, recovery of sum of money.
Karamihan ng kaso, ganyan man ba. In those cases, when of
the parties dies, the case is not dismissed. It will continue. And
we call them actions which survive. The case continues and
what is the procedure? Sec. 16.
We will make an outline: The effect of death of a
party on a pending civil action. So, one of the parties dies.
What is the effect? Distinguish. Is it an action which survives or
an action which does not survive? What do you mean by an
action which does not survive? An action which does not
survive is an action which is purely personal in character which
means the death of a party causes the death of the action
itself. Examples: legal separation, annulment, support. What is
the effect of a death of a party in an action which does not
survive? Case is dismissed.
What do you mean by an action which survives? An
action which survives is an action which is not affected or
abated by the death of a party. Meaning the death of one of
the parties does not necessarily mean the case will die with it.
And majority of cases belong to that category. What will
happen? You have to distinguish further because of Sec. 21.
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Because Sec. 21 talks of an action on contractual
money claims. So, there is a special rule for contractual
money claims. Like for example, collection of a loan. So we
will distinguish whether it is non-contractual money claim or
contractual money claim. An example of a non-contractual
money claim is an action for damages arising from quasi-
delict. That is not arising from a contract. Or an action for
recovery of property whether real or personal. And if you want
to find out what are these actions which do not survive, they
will be discussed in detail in the subject of Special
Proceedings. They are generally the actions which fall under
Sec. 7, Rule 86, Rules of Court and Sec. 1, Rule 87, Rules of
Court which is studied on the law on Special proceedings.
Action for damages, action for recovery of property. These
are the non-contractual money claims.
And what is the effect if for example I will file a case
to recover a piece of land from somebody and while the case
is going on, whether he dies or I die. Either one. If the plaintiff
dies, apply Sec. 16. In other words, there will be a substitution
of parties. That is why it is the obligation of the lawyer to tell
the court so the court can order the proper substitution. In the
1995 case of:
VDA. DE SALAZAR vs. CA
250 SCRA 305
When the plaintiff filed a case
against defendant for ejectment (unlawful
detainer case) and when the case was
going on, defendant died. But the lawyer
of the defendant did not inform the court
about the death of the defendant so the
case continued. Of course the heirs were
the ones who took over but they should
have been substituted kaya lang hindi na
question. And then the case ended and
the defendant lost and the court ordered
the defendant ejected. Here comes the
heirs: How can you eject somebody who is
already dead? So the decision is not valid
because we were not properly substituted.
Were the heirs of the defendant correct?
Was the decision valid?
The SC said: The decision is valid.
Where the heirs themselves appeared
before the trial court, participated in the
proceedings therein, and presented
evidence in defense of the deceased
defendant, it undeniably being evident that
the heirs sought their day in court and
exercised their right to due process.
Meaning, there was procedural mistake.
Kaninong kasalanan yan? Sa abogado.
But it was his fault, the case continued and
the heirs participated, in effect, sila na rin
ang defendant. So the judgment is valid.
The other type of action which survives is contractual
money claim under Sec. 20. What do you mean by that. It is
an action for recovery of money arising from contract. The
best example is utang (loan). So, A files a case against B to
recover an unpaid loan and one of them dies, what happens
to the case? Distinguish. Who died, the plaintiff or the
defendant? Because Sec. 20 talks of the defendant, eh. So,
we will have to distinguish who died. Plaintiff dies or
defendant dies. If the plaintiff dies, you follow Sec. 16.
Substitution of parties. The heirs or the legal representative
shall substitute for the deceased plaintiff. Just imagine if the
plaintiff dies and the case will be dismissed because of his
death, then every defendant will pray that his creditor would
die. So, tapos ang kaso. That will be an incentive for the
defendant to kill the plaintiff.
Now, if the defendant dies, what is the effect?
Answer: When did he die? Did he die before entry of final
judgment? Or after entry of final judgment? So, ang answer:
He died before entry of final judgment. Meaning, hindi pa
tapos ang kaso, the defendant dies. What will happen to the
case? The law says: The case shall not be dismissed but shall
instead be allowed to continue until entry of final judgment.
So, answer: Case continues until entry of final judgment. That is
Sec. 20, Rule 3. In effect there will be substitution also.
Now, this is one of the radical changes in the rules of
court. The ruling before July 1, 1997 was when the defendant
dies before entry of final judgment, the case will be dismissed.
And the creditor has to file his claim against the estate of the
deceased. Meaning the civil case will be dismissed. That was
the old rule. Under the present rule, the case will no longer be
dismissed. The case continues until entry of final judgment. So,
tuloy ang kaso hanggang matapos. And there is now a
judgment. What happens to the judgment? That is now the
second sentence. A favorable judgment obtained by the
plaintiff therein shall be enforced in the manner especially
provided in these rules for prosecuting claims against the
estate of a deceased person. So, favorable judgment shall be
enforced versus estate of the deceased. that is in
accordance with sec. 5, Rule 86. The procedure is there, the
law on special proceedings. How to enforce a decision
against somebody who is already dead.
Now, suppose the defendant dies after entry of final
judgment but before levy or execution of his property. Then,
plaintiff must file judgment as a claim against the estate. this is
also governed by Sec, 5, Rule 86. If defendant dies after levy
or execution, then sec. 7(c), Rule 39 applies.
Yan ang kumpletong sagot because it practically covers the
entire Rules of Court. All possibilities are covered. So that is the
effect of a death of a party on a pending civil action. That
includes Secs. 16 & 20, Rule 3, Rule 86 and Rule 39 of the Rules
of Court.
Let us go to Sec. 17. It also talks of death or
separation of a party but the party is a public officer the one
being sued in his official capacity.
Sec. 17. Death or separation of a party who is a public
officer. - When a public officer is a party in an action
in his official capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the action
may be continued and maintained by or against his
successor if, within thirty (30) days after the successor
holds office or such time as may be granted by the
court, it is satisfactorily shown to the court by any party
that there is a substantial need for continuing or
maintaining it and that the successor adopts or
continues or threatens to adopt or continue the action
of his predecessor. Before a substitution is made, the
party or officer to be affected, unless expressly
assenting thereto, shall be given reasonable notice of
the application therefor and accorded an opportunity
to be heard. (18a)
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For example, the mayor of your town decided to
issue an executive order to demolish your building. You
decided to contest his official decision so you file a case in
court against him to prevent him from demolishing your
building and to declare his decision as invalid. Suppose, when
the case was going on, the mayor dies, resigns or ceases to
hold office for one reason or another, now there is a new
mayor. What will happen to your case? There will be a
substitution of party and the new mayor will now be the
defendant. Under Sec. 17, it depends whether the new mayor
will carry out the policy or decision of the deceased mayor.
The case will have to continue against him. If the new mayor
does not, the case will be dismissed because he is not going to
proceed anyway. That is why, the new mayor will have to be
heard whether he will really follow the decision or implement
the policy of the deceased.
Sec. 18.Incompetency or incapacity. - If a party
becomes incompetent or incapacitated, the court,
upon motion with notice, may allow the action to be
continued by or against the incompetent or
incapacitated person assisted by his legal guardian
or guardian ad litem. (19a)
So, while a case is going on, one of the parties
becomes insane so he becomes incompetent. Then the
action will be continued by or against the said party assisted
by his guardian or guardian ad litem. How do you compare
that with Sec. 3. Let us go back to Sec. 3.
Sec. 3. Representatives as parties. - Where the action is
allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an
express trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules x x x.
In Sec. 3, the incompetent will be represented by his
guardian. In Sec. 18, the incompetent or incapacitated will
also be represented by his legal guardian. So what is the
difference between the two situations?
Under Sec. 18, he was previously competent and
capacitated and when the case was going on . He became
incompetent or incapacitated so he will now be assisted. But
under Sec. 3, from the very start the party is already
incapacitated so he must be assisted from the very start. The
meaning is the same but the situation is different. That is the
only difference. Yet they involve the same matter.
Sec. 19. Transfer of interest. - In case of any transfer of
interest, the action may be continued by or against the
original party, unless the court upon motion directs the
person to whom the interest is transferred to be
substituted in the action or joined with the original
party. (20)
Here’s an example. I will file a case against A to
recover a piece of land. Because I believe I have a right to
that land. While the case is on going, A transfers his interest
over the land to B. What will happen now to the case? There
are three possibilities:
1. The case will continue against A. And B will
be bound by the decision especially that B
knows that the land is subject of a litigation. So,
any decision against A binds B.
2. I will ask that B be substituted as the new
defendant. Wala na si A. That is also possible.
3. A remains the defendant and I will ask that
be included as an additional defendant.
Indigent Litigant
Sec. 21. Indigent party. - A party may be authorized
to litigate his action, claim or defense as an indigent
if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family.
Such authority shall include an exemption from
payment of docket fee and other lawful fees, and of
transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such
authority at any time before judgment is rendered by
the trial court. If the court should determine after
hearing that the party declared as indigent is in fact
a person with sufficient income or property, the
proper docket and other lawful fees shall be
assessed and collected by the clerk of court. If
payment is not made within the time fixed by the
court, execution shall issue or the payment thereof,
without prejudice to such other sanctions as the court
may impose. (22a)
Let us go back to the Constitution. The Bill of Rights.
No person shall be denied access to the courts by reason of
poverty. You know very well that even in a criminal case, if the
accused cannot hire a lawyer, it is the obligation of the court
to appoint one for him called a counsel de officio.
Now let’s go to civil cases. I want to file a case against
somebody who wronged me but I do not have the means to
pay for the docket and filing fee and other charges in court. I
cannot go to court simply because I am a poor man? No.
You can ask that you be allowed to litigate as an indigent
party. All you have to do is to file an application or motion in
court, ex parte application. Meaning, you file it directly
without furnishing anybody a copy of your application. There
is no need to furnish anybody.
And what is your ground? That you have no money
or property sufficient and available for food, shelter and basic
necessities for yourself and your family. You are indigent. If the
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court is satisfied, the court will order allowing your case to be
filed. You are exempted from the payment of docket fee and
other lawful fees including stenographic notes.
So how do you define an indigent? He is one who
has no money or property sufficient and available for food,
shelter and basic necessities for himself and his family. Under
the 1964 Rules, this type of party is called a pauper litigant. So,
it is now changed. Pauper litigant to indigent party. That is
why this type of suit where a party is allowed to sue without
paying anything. It is called in latin a suit in forma pauperis.
The new rules now call him an indigent party rather than
pauper litigant. Because the word pauper is misleading.
Pagsinabi mong pauper, beggar, pulubi. A public charge,
one who begs.
As defined by the SC, the word pauper litigant does
not necessarily mean a beggar or public charge. It could
mean a person who is employed, he is earning an income but
the trouble is his income is not even sufficient for himself and
his family. So, actually, in a sense, he will qualify as a pauper
litigant. But the real meaning is indigent. Kaya nga the new
rules adopts the definition given by the SC. For example you
are earning P4,000 a month. Hindi naman pulubi ito. He is
renting a house, supports a wife and his children. My golly.
Kulang-kulang na yung sweldo niya. So he will qualify as a
pauper litigant now called an indigent.
So the court will say you are exempted. The court
may provide that there will be a lien on the property because
the law says: The amount of the docket and other lawful fees
which the indigent was exempted from paying shall be a lien
on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides. Meaning, the
court will say: Alright you are authorized to file as an indigent
litigant, no payment of docket fee, no nothing, but in case you
win and you will recover, then you pay. Kung talo ka
pasensiya. That is what is called file now pay later. Yan ang
pwede. Remember we cited that case of Pilipinas Shell
(supra). The SC said there is no such thing as file now pay later.
That’s true. In order to do that you must qualify as an indigent.
But then you must prove that you are indigent.
Now, the third paragraph is something new, not
found in the old rule. Because if I am the defendant and I
learned that you filed your case as an indigent but I know very
well na mayaman ka, I can contest that. I can object. That’s
what the new rule says. If that is so, the court will now order
you to pay. I can even hold you in contempt. My golly! Why
did you pretend that you are indigent, mayaman ka naman
pala. That is the essence.
Just like sa PAO. It is supposed to be a public
attorney’s office for indigent litigants. That is why some lawyers
are questioning the appearance of PAO lawyers. Your client is
not indigent. Why is the government handling his case. He
should hire his own lawyer and not ride on the program of the
government on indigent parties.
Sec. 22. Notice to the Solicitor General. - In any action
involving the validity of any treaty, law, ordinance,
executive order, rules or regulations, the court, in its
discretion, may require the appearance of the Solicitor
General who may be heard in person or through a
representative duly designated by him. (23a)
For example there is a civil case and one of the issues
raised is whether a law is valid or not. Here is a case between
the husband and wife. One of the issues raised is: A provision
of the Family Code relied upon by the party is not valid
because the Family Code is unconstitutional. So, in effect, you
are now questioning the constitutionality of a law. In that civil
action, the court, in its discretion, may require the appearance
of the Solicitor General.
The question is: Anong pakialam ng Solicitor
General? The Solicitor General is the lawyer of the
government. It is just a case between husband and wife which
is a private matter. What is the interest of the Solicitor General
in that case? The Solicitor General is the lawyer of the
Republic. It is his obligation to defend all official acts of the
government. Being the lawyer of the government, he has the
interest in defending the validity of all acts of government,
one of which is the law passed by congress.
Have you been reading the papers? Kadaming
challenge diyan. Mga acts of the government, lotto,
deregulation law. Sino ba ang nagabanat diyan? Di ba ang
Solicitor General. Because that is the interest of the
government. And it is his duty to defend official acts of the
government. That is where he comes in. So the court may
require to hear him. So we have to ask the Solicitor General, si
Bebot Bello who is originally from Davao because he is now
the Solicitor General. That is the reason behind that.
Many people do not know. Anong kaibahan ng
Solicitor General from a Secretary of Justice? Because ang
Secretary of Justice, legal adviser of the government. mga
opinions. Solicitor General naman, lawyer. So, iba ang legal
adviser, iba ang abogado. Kaya nga the government system
sometimes is confusing to laymen. The Solicitor General is not
part of the department of justice. He has his own office. Yung
mga fiscals, prosecutors, they are under the DOJ. So they
prosecute cases. And then if you are convicted, you appeal.
Pag-appeal mo, who handles the case on appeal? The
Solicitor General. Out ang Secretary of Justice. Kaya
sometimes it is hard to distinguish the role of one from the
other. Because these are two different people.
Meron pang pangatlo. When the case involves
government owned or controlled corporations, the office of
the Government Corporate Council (GCC).
There was one time where the Sec. of Justice and the
Solicitor General were one and the same person. That was
during the Marcos era. Si Estelito Mendoza. He held these two
positions in a concurrent capacity. Solicitor General holding
office in Makati, Minister of Justice holding office in Ermita, and
then governor of Pampanga pa siya. Tapos member ng
Batasang Pambansa. I was wondering how he could have
performed holding four offices? He must be a superman to be
able to handle all 4 positions at the same time. But he was
able to tackle it.
End of Rule 3
Rule 4
VENUE OF ACTIONS
The Rule on Venue in the 1964 Rules of Court has
already been amended two years ago as early as August 1,
1995 by SC Adm. Circular 13-95 and these provisions are now
included in the new rules.
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Venue defined
Venue is defined simply as the place where a civil
action shall be instituted and tried. Like for example, the case
should be filed in Davao City. The venue is Davao City. Now,
if the case should be filed in Cotabato City and you file it here,
you say that that is an improper or wrong venue. In criminal
cases, that is called territorial jurisdiction. We know that in a
criminal case, it is filed in the place where the crime was
committed. But in civil cases, we do not call it territorial
jurisdiction. We call it venue. That’s the term.
Venue of real actions
Where is the venue in a civil case? It depends on
whether the action is a real or personal action. These are
found in Secs. 1 & 2. This is one reason why you should know
whether an action is real or personal. Because the venue for
real actions is different from the venue in personal actions. We
know already what are real actions. These are actions which
involve ownership or possession or interest over real property.
Let us read Sec. 1 on venue of real actions.
Sec. 1. Venue of real actions. - Actions affecting title to
or possession of real property, or interest therein, shall
be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.
Forcible entry and detainer actions
shall be commenced and tried in the municipal trial
court of the municipality or city wherein the real
property involved, or a portion thereof, is situated. (1[a],
2[a]a)
Yes. Actions affecting title to or possession of real
property. Example, accion reinvidicatoria (recovery of
ownership), or accion publiciana (recovery of possession) shall
be commenced and tried in the proper court. Anong proper
court? Because the court could be RTC or MTC depending on
the assessed value of the property. If the assessed value is
P20T or less, MTC. If it is over P20T, it should be in the RTC. Yan
ang proper court which has jurisdiction over the area where
the real property involved or a portion thereof is situated. Area
because in the RTC, as we said, every branch has its own
designated area of responsibility.
On the other hand, forcible entry and detainer
actions which are also real actions shall be commenced and
tried in the MTC (because the RTC has no jurisdiction here) of
the municipality or city wherein the real property involved or a
portion thereof is situated. So the venue is where the real
property is situated.
Bakit or a portion thereof? Because it is possible for a
property to be in the boundary of two towns. That is possible.
Example: Lasang. I know of properties there which are in the
boundary line. One half is part of Davao City and the other
half is in the municipality of Panabo. So, if you would like to file
a case for forcible entry against somebody, you have two
choices. You can file it in the MTC of Panabo or in the MTC of
Davao City.
Venue of personal actions
Now, let’s go to personal actions. An action for
recovery of sum of money, an action for damages, legal
separation, etc. That is Sec. 2.
Sec. 2. Venue of personal actions. - All
other actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the
principal defendants resides, or in the case of a
non-resident defendant, where he may be found,
at the election of the plaintiff. (2[b]a)
This time, the venue will depend on the residence of
the parties. Yan ang tinatawag na transitory actions. It
depends on where the parties reside. So, all other actions not
falling under Sec. 1.
Venue of mixed actions
Now, sometimes, it is easy to determine whether the
action is real or personal. But sometimes, mahirap. That I have
to admit. Sometimes, it is difficult to determine. Ano ba ito -
personal or real? So, we will try to cite some cases where the
SC was confronted with that issue. Like there was a case filed
by A against B for recovery of possession and damages. Like
the case of Tacay (supra) on the issue on docket fee. It was a
case for recovery of possession and damages. For recovery of
possession that was a real action An action for damages is
personal. That is what some writers would call as a mixed
action. Now, if that is so, where is the venue? If it is mixed,
shall we apply Sec. 1 or Sec. 2?
And the SC said in Tacay: Where several or
alternative reliefs are prayed for in the complaint, the nature
of the action, whether real or personal, is determined by the
primary object of the suit over the nature of the principal
claim. So, what is the primary object of the suit? Thus, where
the purpose is to nullify the title to a real property, the venue
of the action is the place where the property lies
notwithstanding the alternative relief, recovery of damages,
which is predicated upon a declaration of nullity of the title.
So, what is the main objective? If the main objective is to
recover the property and the damages is only incidental, it is a
real action. You follow Sec. 1 rather than Sec. 2. Alright. So,
that is one example.
We will cite another instance. For example in one
case, the plaintiff filed an action for rescission of a contract.
As a general rule, how would you classify an action for
rescission of contract? Is that a personal action or a real
action? Generally, personal yan. But there is one case where
there was a contract for the management of a piece of land.
The plaintiff filed a case to rescind the contract for said
management of the land and to direct the defendant to
return the land to the plaintiff. Sabi ng SC: Well, it is a
rescission of contract but actually the purpose is recovery of
possession of land. So, in effect, it is a real action. As a
general rule, rescission of contract is personal but if the object
of the rescission is to recover the possession of a piece of land,
it is a real action which shall be governed by Sec. 1. Yan ang
importante.
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 Like for example, we are both from Davao City. I will
file a case against somebody from Davao City and I also
reside here to annul a contract of sale. Personal man yan ba.
So, the case should be filed in Davao City. But ang nakalagay
sa demanda is to annul the deed of sale of a land in Digos
and to return the ownership of that land to the plaintiff. Hindi
na ito personal. Because the object is what? Recovery of
ownership. So in effect, the venue is not here and the case
should be filed in Digos. Yan ang mahirap, eh. Nasa border
line ba. Whether the action is real or personal. As a matter of
fact, there is another recent case where again the issue of
venue cropped up. I’m referring to the case of:
LA TONDENA DISTILLERS, INC. vs.
PONHERADA
Nov. 21, 1996, 264 SCRA 540
The defendant entered into a contract to
sell a piece of land to plaintiff. Then later
on, defendant refuses to honor his
commitment. And the land is situated, let’s
say, in Cotabato City. So what the plaintiff
did was to file an action for specific
performance with damages against the
defendant and after filing it he even
annotated a notice of lis pendens on the
title. So anong ibig sabihin? To compel
defendant to honor the contract to sell the
lot to me. The plaintiff filed the case in, say,
Davao City where he is residing. The
defendant questioned the venue.
According to the defendant, that is a real
action so it must be filed in the place where
the property is situated. According to
plaintiff, no that is a personal action, an
action for specific performance to compel
you to sell the lot to me. that was the issue
raised in the SC.
The SC said that it is a personal action. The
complaint is one for specific performance
with damages. Why? Because the plaintiff
does not claim ownership over the lot but in
fact recognizes title of the defendant by
annotating a notice of lis pendens.
meaning, when I filed a case against you to
compel you to sell the land, I am still
recognizing that you are still the owner.
therefore there is no issue as to ownership.
Okay, ikaw ang owner. Only I am asking
you to honor the agreement to sell. So it is a
personal action.
ADAMOS vs. JM TUASON
25 SCRA 530
A similar complaint for specific performance
with damages involving real property was
held to be a personal action which may be
filed in the proper court where the parties
reside not being an action involving title to
or ownership of real property, venue in this
case was not improperly laid before the RTC
of the place where the plaintiff was residing.
Yan ang mga cases na nasa border line where you
will have difficulty determining whether the action is real or
personal. Because that will determine the venue. Alright.
Venue at the election of the plaintiff
Now, the venue of the action is where the plaintiff
resides or where the defendant resides at the election of the
plaintiff. Siya ang mamili. Sa kanya ang choice. So, for
example, I am in Davao City. I will file a case to collect a sum
of money against somebody who is in Cagayan de Oro City. I
have the option to file the case in Cagayan de Oro City or to
file in Davao City. Of course, if I am the lawyer of A, I will not
file it in Cagayan de Oro City. It becomes very expensive. I
will file it here para ikaw ang pabalik-balik dito. Yan. That is
my right as plaintiff.
Suppose maraming plaintiffs. Suppose there are
three plaintiffs and three defendants. One plaintiff is from
Davao City. The other plaintiff is from Tagum. The third plaintiff
is from Mati. Iba-iba, okay. Yun namang isang defendant,
Cotabato. Isa nasa General Santos. Ang isa Cagayan. Saan
ang venue? Anyone of the six. Pwede dito, pwede sa Mati,
pwedeng Cagayan, etc. Because the law says where the
plaintiff or any of the principal plaintiffs resides or where the
defendant or any of the principal defendants resides.
Now, take note, principal plaintiff, principal
defendant. Bakit? Meron palang non-principal plaintiff at
non-principal defendant? Yes, yung tinatawag na nominal
ba. They are just included as a formal party. Like for example,
when a party files a case against another to annul an auction
sale by the sheriff, normally kasali diyan ang sheriff. The sheriff is
included as a party para he will be bound. But actually, the
case is not against the sheriff. It is against you. So the
residence of the sheriff is irrelevant because he is not a
principal defendant. Ang principal defendant yung private
person who is benefited.
Residence of a party
Now, the question that you will ask next is where is the
residence of a party? Because in law, there are two types of
residence: the physical or actual residence and the legal or
domicile residence. Remember domicile sa election law?
I’m sure many of you are here in Davao City most of
the time because you study here or you work here. But this is
not your own place. Your home town is somewhere there in
Cotabato. Your parents are there. During holidays, you go
back to your hometown. And that is where you intend to stay
after graduation. So, where is your legal residence or
domicile? Doon sa lugar mo. Where is your physical or actual
residence? Where are you most of the time? Davao City.
Now, the question is for purpose of venue, what do you mean
by residence of an individual? Is it physical (actual) residence
or legal (domicile) residence?
There is only one case I know where the SC
interpreted residence in venue to mean legal or domicile
residence. But in all other cases, the SC has been consistent
that the word residence for venue is actual or physical
residence where you are actually staying. The SC said that the
word resides should be viewed and understood in its popular
sense. Meaning the personal, actual or physical habitation of
a person. Actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this
popular sense, the term means merely residence that is
personal residence not legal residence or domicile. So that is
how the SC interpreted the word residence in venue. Now,
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what are these cases where the SC said that residence means
actual or physical residence?
CO vs. CA
70 SCRA 298
FULE vs. CA
74 SCRA 189
HERNANDEZ vs. RURAL BANK
OF LUCENA 81 SCRA 75
RAYMOND vs. CA
166 SCRA 50
ESUERTE vs. CA
193 SCRA 541
In all these cases, the SC was consistent. Residence
means physical residence. As I said there is only one case I
know where the SC mentioned residence as legal residence.
That was the case of;
CORRE vs. TAN-CORRE
100 PHIL 321 (1956)
This case involved an American
husband against his Filipino wife. The
couple was married in San Francisco.
Tapos, nag-away sila, the wife came back
to the Philippines and stayed here
somewhere in Visayas or Mindanao. The
American husband followed his wife and
stayed in Manila. He rented an apartment
and stayed in Manila and filed a case
against his Filipino wife. And of course,
since the venue is where the plaintiff resides
or where the defendant resides, the plaintiff
filed it in Manila because that is where he
was staying. The wife questioned the
venue. Sabi ng wife: You cannot file it in
Manila because you are not a resident of
Manila. You have no choice but to file it
where I reside. Not in Manila. Your
residence is California. Sabi ng husband:
Yes that is my domicile but I came here.
May apartment pa nga ako rito. And
residence means physical residence.
If you follow the rule, tama man
ang husband ba. But the SC said: No, the
word residence in venue means legal
residence not physical. So, the husband’s
residence is California. So, since you are not
a resident of the Philippines, you have no
choice but to file the case in the place
where your wife resides. Not in Manila.
Bakit ganito ang ruling? The SC there was just trying
to help the Filipina. Sabi siguro ng SC: If we will interpret the
rule on venue as physical, it is the Filipina who will be
inconvenienced. She has to go to Manila and fight it out.
Now, if we say legal residence ang venue, it is the American
husband who would be forced to go to the Visayas or
Mindanao to file. Why should we favor the American? We
favor our own kababayan. Yan siguro ang nangyari. Because
that is the only case na kabang ba. And I think that is the only
reason. The SC wanted to accommodate the Filipino citizen
rather than the American.
Residence of a corporation
Now, let’s go to a corporation. A corporation can
sue and be sued. The question is: What is the residence of a
corporation? Under the corporation law, which you will study
in third year, the residence of a corporation is the place where
its head or main office is situated. Head Office. Usually that is
stated in the articles of incorporation. And there are
interesting cases on this issue one of which was the case of:
CLAVECILLA RADIO SYSTEM vs. ANTILLON
19 SCRA 379
Its head office was somewhere in
Manila but its branch office was in
Cagayan de Oro City. Gi-file ang kaso sa
Cagayan de Oro. Clavecilla challenged
the venue because its head office was in
Manila and not Cagayan de Oro. But sabi
ng plaintiff: But you have a branch here so
a corporation can be considered also a
resident of the city where it has a branch
office. That was his theory. Is that correct?
The SC said: That is not correct.
Any person whether natural or juridical can
only have one residence. And in the case
of a juridical person like a corporation, the
residence under the corporation law is the
place where its head or main office is
situated. It cannot be a resident of every
city where it has a branch office.
So more or less that was the ruling. That principle was
reiterated in the case of;
YOUNG OFFICE SUPPLY CO. vs. CA
223 SCRA 670 (1993)
The SC said: A corporation cannot
be allowed to file personal actions in a
place other than its principal place of
business unless such a place is also the
residence of a co-plaintiff or defendant.
So, a Manila-based corporation cannot file a case
against you in Davao City unless Davao City is where the
defendant resides or where a co-plaintiff also resides.
Because the law says where the plaintiff or any of the plaintiffs
resides. But kung sabihin mo corporation lang, siya lang isa,
you cannot file a case outside the place where you are
residing.
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Non-resident defendant
Now, suppose a defendant is not a resident of the
Philippines but he is here temporarily? Parang balikbayan ba.
Nagbabakasyon. Ex: When your balikbayan friend arrived
from the States and he will live here for a vacation. The first
thing that he did upon arrival at the arrival at the airport is to
borrow pesos from you because according to him puro dollars
ang pera niya. Pahiram muna bayaran kita pagnapalitan na
itong dollars ko. But after two weeks, hindi pa rin siya
nagbayad so you want to sue him. Of course, that is a
personal action - to collect a loan. Can you sue the
vacationing balikbayan? Yes because he is here in the
Philippines. But he has no residence? The law says either
where I reside or where he resides. But what does Sec. 2 say?
Or in the case of a non-resident defendant, where he may be
found. Because he has no residence here. What do you
mean by where he may be found? Well, upon arrival, where is
he staying? Is he in Davao City? Cebu City? Kung saan siya
nandoon, you can sue him there. Yan. So, upon arrival in
Manila, he proceeded to Cebu to stay there with his relatives.
Then you can sue him in Cebu. Or where you reside at your
election. In other words, where he is found is the place of his
residence. That is the meaning of where he may be found.
But where is he? He is in the Philippines.
Now, we will go to the next question. Suppose the
defendant is not a resident of the Philippines and he is not
around? So, for example, your kumpare borrowed money
from you and then later on you learned he already migrated
to the States. Naglayas na siya and never to come back.
Can you sue him in the Philippines? Can you sue in a
Philippine court a defendant who has left the country for
good? Can the Philippine court acquire jurisdiction over his
person? If you sue him, your case will be dismissed because
the court can never acquire jurisdiction over his person. You
know that. That is one of the essential elements in the issue of
jurisdiction. Subject matter, person, issues. But even if the
court cannot acquire jurisdiction over his person but the court
can acquire jurisdiction over the res, then he can be sued.
Meaning, if the action is in rem or quasi in rem, he can be sued
in the Philippines even if he is out there. Why? Because
anyway, the res is here. But in an action to collect an unpaid
loan, that is not an action in rem, that is an action in
personam. So there is no way for you to sue him. But if the
action is in rem, then he can be sued in the Philippine court.
And where is the venue? Sec. 3 will answer that. Let us read
Sec. 3.
Sec. 3. Venue of actions against
nonresidents. - If any of the defendants does not
reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff, or
any property of said defendant located in the
Philippines, the action may be commenced and
tried in the court of the place where the plaintiff
resides, or where the property or any portion
thereof is situated or found, (2[c]a)
Non-resident defendant (Sec. 2) vs. Non-resident defendant
(Sec. 3)
So, what is the difference between the non-resident
defendant in Sec. 2 and the non-resident defendant in Sec. 3?
In Sec. 2, the non-resident defendant may be found in the
Philippines. So, he is here. But in Sec. 3, he does not reside
and is not found in the Philippines. So, physically, he is not
around. You can sue him if the action affects the personal
status of the plaintiff, or the action affects any property of said
defendant located in the Philippines. Because in that case,
the action is in rem or at least quasi in rem.
Give an example of an action which affects the
personal status of the plaintiff. For example, the plaintiff is an
illegitimate child of the defendant and is not recognized by
said defendant. And the defendant, the father, left the
Philippines for good. The son would like to sue his father for
recognition and acknowledgment. What is the res in this
case? The res is the status of the plaintiff who is here. In that
case, the plaintiff can file the case against his father because
the court can make a declaration. From now on you are now
considered the child of the defendant. And that will improve
the status of the child. So, may habol ka na sa tatay mo.
Or, I want to file a case against a defendant who is
now abroad to recover the ownership or possession of a piece
of land in the Philippines. So, ang pinag-aawayan natin is
ownership or possession of the land. But you are abroad. Can
you be sued in the Philippine court? Yes, because the res is in
the Philippines. The court cannot acquire jurisdiction over your
person but the court can acquire jurisdiction over the res. That
is what I said before. Res is the substitute for a person. And if
you win, the court will now say: You are now the owner of the
property. Ang defendant? Bahala siya kung magbalik siya
basta ako na ang owner. So, the judgment of the court is not
useless. It can be enforced. But if your action is in personam,
like an action to collect a loan, what happens to the
decision? Hoy, defendant, bayaran mo. Paano mo ako
pilitin? Nandito ako sa Amerika. In other words, the action is
directed against his person and there is no way for the court to
enforce its judgment. So, that is different, no.
Now, if that is so, where is the venue of the action
against a non-resident who is not found in the Philippines? The
law says the venue is where the plaintiff resides. That is if the
action affects his personal status. Now, suppose the action
involves a property of the defendant located in the
Philippines? Then the venue is where the property or a any
portion thereof is situated or found. If it affects the personal
status of the plaintiff, the venue is the residence of the plaintiff.
If it affects the property of the defendant in the Philippines, the
venue is where the property is situated or found. That is the
correct venue of the civil action.
Rule on venue when not applicable
Sec. 4. When rule not applicable. - this rule shall not
apply -
a) In those cases where a specific rule or law
provides otherwise; or
b) Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof. (3a, 5a)
Yes. This rule shall not apply, meaning the rule on
venue from Secs. 1 to 3, where a specific rule or law provides
otherwise. So, if there is another law or a special law which
provides for a different rule on venue, then, that rule will apply.
Because the rules on venue in Rule 4 are the general rules.
Between a special rule and a general rule, the specific or
special rule will apply.
Can you think of a civil case where the rule on
venues is different from what is mentioned in these rules,
especially in Sec. 2? Because generally, in a civil action, in an
action involving a personal action, the venue is where the
plaintiff resides or where the defendant resides at the election
of the plaintiff. Can you think of an action where the venue is
different from what the law says? Try to recall your Criminal
Law.
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a) Where a specific rule provides otherwise
1. Libel (Art. 360 of RPC)
Yes, libel under Art. 360 of the Revised Penal Code.
The criminal or civil action for damages. Because damages,
libel. defamation would be an independent civil action. But
the rule on venue on libel, whether criminal or civil is governed
by Art. 360 of the RPC. And where is the place for filing a civil
action for damages arising from libel? Under Art. 366, where
the offended party resides or where the article was first printed
or published. But when the offended party is a public officer,
the venue for civil action for damages is where the article was
printed or first published or where he holds office as a public
officer. In other words, that is a different rule, no. Art. 360
provides for the venue of the action not only in a criminal case
for libel but also a civil action for damages arising from libel.
So, the rule there is different. So, in filing a case for damages
arising from libel, you apply Art. 360 of the RPC. You do not
follow Rule 4. Because the law says it does not apply in those
cases where a specific rule or law provides otherwise. That is
the best example.
2. Art. VIII, Sec. 5, par. 4, Constitution
There is another law where the it authorizes the case
to be filed in another venue and it is found in the constitution.
The SC shall have the following powers:
xxx
(4) Order a change of venue or place of trial
to avoid a miscarriage of justice. (Art. VIII, Sec.
5, par. 4 1987 Constitution)
xxx
The SC shall have the power to transfer the venue or
place of trial of any case whether criminal or civil. How can
you fight against that provision? The SC has exercised that
power in criminal cases most of the time. Like the case of
Calauan Mayor Sanchez. The case was supposed to be tried
in Laguna. Nag-trial sila sa Pasig. Because of the dangerous
peace and order situation. The SC has not yet exercised this
power in civil cases but it is there in the Constitution. In effect,
there is a provision of the fundamental law which provides for
a different rule other than what is found in the rules of court.
b) where parties have agreed on venue
Now, the second instance where the rule does not
apply is where the parties have validly agreed in writing before
the filing of the action on the exclusive venue thereof. Is it
possible for in a situation where A and B, residents of Davao
City, and B borrowed money from A and the promissory note
says: I promise to pay A the sum of P200T with so much interest
within one year from said date. Then, nakalagay diyan in case
of an action arising from this promissory note, the action shall
be filed in the City of Manila. In other words, we are residents
of Davao City but we agreed, in case of demandahan, the
case shall be filed in Manila. Is that a valid agreement? Yes,
because the parties can agree on where the action shall be
filed outside of what Rule 4 provides. So, venue can be
agreed upon. Pwedeng pag-usapan ang venue.
Polytrade Doctrine
Now, this provision has been interpreted in the case
of:
POLYTRADE CORP. vs. BLANCO
30 SCRA 187
A and B are residents of Davao
City. One day, B borrowed money from A
and B signed a promissory note. He
promised to pay at a certain date. The
promissory note signed between them
contains this agreement: The parties agree
to sue and be sued in the City of Manila.
When the note fell due and there
was no payment, A filed a case against B in
Davao City following Rule 4 that the venue
of the action is where the plaintiff resides or
where the defendant resides since both of
them are from Davao. Now, B challenged
the venue of the action. According to him,
Davao is improper venue because there is a
stipulation that the parties agreed to sue
and be sued in the City of Manila. Is the
filing of the case in Davao City proper or
improper?
The SC said the venue is correct
because the plaintiff and defendant are
residents of Davao City. How about the
stipulation? Sabi ng SC: Ano ba ang
nakalagay sa promissory note? The parties
agree to sue and be sued in the City of
Manila. What it means is aside from Davao
City where they reside, the parties can also
be sued in Manila. Dagdag lang yan. It is
an additional venue. The agreement that
the parties can sue in Manila means that
Manila is an additional venue in addition to
what the law says. But Manila is not the
exclusive venue because there is nothing in
the agreement where the parties indicate
that they only intend to sue and be sued in
Manila. Meaning, there is no restrictive
word stating that the only place where the
action can be filed is Manila. That is called
the Polytrade doctrine. For venue to be
exclusive in one place other than what the
rule says, there must be a restrictive word
showing the intention of the parties to limit
the venue in that place.
Suppose, ganito ang nakalagay sa agreement: The
parties agree, in case of suit under this promissory note, to sue
and be sued only in the City of Manila. Ibang istorya na yan.
The addition of the word only shows the intention of the parties
to limit the venue of the action in Manila. Or halimbawa, The
parties agree to sue and be sued exclusively in the City of
Manila. So, anong makita mo diyan? There is an intention to
limit the venue exclusively in Manila. So you cannot sue him in
Davao City. Again, that is called the Polytrade ruling. That’s
why it is incorporated in Sec. 4. (b) where the parties have
validly agreed in writing before the filing of the action on the
exclusive venue thereof. Otherwise, if there is nothing in the
agreement which will indicate exclusivity, or a restrictive word,
then, the stipulated place is a place in addition to where the
parties reside.
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Now, of course, the case of Polytrade was decided in
1969. Well, I have to admit that there were cases decided by
the SC which seem to be conflict with Polytrade. There were
cases where the stipulations were not exclusive and yet the SC
ruled that it is exclusive. Among these cases were:
BAUTISTA vs. DE BORJA 18 SCRA 75
HOECHST PHIL vs. TORRES 83 SCRA 297
case:
These are the cases which caused confusion. The
case of Torres was later than Polytrade. And yet the SC said
the venue is exclusive. So, the SC resolved the conflict in the
1993 case of:
PHIL. BANKING CORP. vs. TENSUAN
228 SCRA 385
The SC said that the ruling in
Bautista and Hoeschst has been rendered
obsolete by the Polytrade ruling and
subsequent cases reiterating it. So, the
Polytrade ruling prevails.
I have to admit that sometimes it is easy to analyze
an agreement whether the intention of the parties is exclusive
venue or not. But sometimes mahirap man ba when you have
to analyze the words in the agreement. The agreement says in
case of suit the venue of the action shall be the city of Davao
only. Klaro yan. Or no action can be filed anywhere in the
Philippines except in the city of Davao. There really is the
intention there to make Davao City the exclusive venue. But
there are stipulations na malabo ba. Is the intention of the
parties to limit the venue only in this place or not? In other
words, by reading the sentence, you will have a hard time
because you cannot find the word exclusive or only. Among
such cases is the 1994 case of
GESMUNDO VS JRB REALTY CORP
234 SCRA 153
There is a lease contract and the
provision on venue was: Venue for all suits
whether for breach thereof or damages or
any cause between the lessor and the
lessee and persons claiming under each
being the courts of appropriate jurisdiction
in Pasay City. Yan ang nakalagay, eh. How
do you interpret that? That Pasay city is the
only exclusive venue in case of suit arising
under the lease contract or is that a
restrictive stipulation or not?
The SC said Pasay City is the
exclusive venue. It is true that in the case of
Polytrade vs. Blanco, a stipulation that the
parties agreed to sue and be sued in Manila
was held to merely to provide for an
additional forum in the absence of a
restrictive word. But if you analyze the
provision, Pasay City is agreed as the venue
in case of suits. The parties have agreed
that in no place may they bring suits for
each other in case of breach of the lease of
contract, damages or any other cause
between the lessor and the lessee and
persons claiming under each being the
courts of appropriate jurisdiction in Pasay
City. In other words, as interpreted, the
parties made plain that in no other place
may the action be brought. So, it was
interpreted as an exclusive venue.
On the other hand, we will go to another interesting
SWEETLINES vs. TEVES
83 SCRA 361
This case originated in Cagayan
de Oro City. There were 2 or 3 residents of
Cagayan who went to Cebu City and rode
in one of the vessels of Sweetlines. So,
bumili sila ng ticket. merong nakalagay na
in case of suit arising out of this contract of
carriage can only be filed in the City of
Cebu. Talagang exclusive. Cebu is the
where the head office of Sweetlines is. So
the passengers rode in the vessel. I don’t
know what happened on board basta
there was a dispute between the
passengers and the crew or the officers.
They claim that they were not treated
properly so pagbalik sa Cagayan de Oro,
they filed a case for damage suit against
Sweetlines and they filed it in Cagayan de
Oro City were the plaintiffs reside. Of
course, Sweetlines filed a motion to dismiss
questioning the venue because the
stipulation is very clear. Meaning, the
lawyers of Sweetlines knew about the
Polytrade ruling. They really made it
exclusive.
The case was raffled to the sala of
the late judge Bernardo Teves. He was a
former fiscal of Davao during the early 40s,
one time acting city mayor of Davao City.
Then later on CFI judge of Cagayan de Oro
City. he is the grandfather of the late
Randy Teves, yung namatay last year.
Judge Teves refused to dismiss the case.
Sabi ni Teves Why will I dismiss the case?
these people will be discourage to go to
your place to file whereas here in Cagayan
de Oro because they are here. in your case
(Sweetlines) you will have no problem
because you also have your branch office
here. You have a branch manager, may
lawyer. Hindi kayo mahirapan. Bakit
pahirapan pa yong mga taga Cagayan na
magpunta sa Cebu. Despite the exclusive
stipulation for the sake of equity, Judge
Teves refused to dismiss the case.
Sweetlines went to the SC on prohibition to
question the order. Is the ruling of Judge
Teves correct or wrong?
The SC said it is correct
notwithstanding its exclusive nature. So,
naging exception sa Polytrade ruling. What
could be the reason there? The SC said the
stipulation while it is printed in the ticket is a
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 certainer. The passenger has no chance to
read it and discuss what is written on it.
Take it or leave it ba. It is a contract of
adhesion where you buy the ticket and you
don’t even bother to read it. You do not
have the chance to participate in the
discussion. Being a contract of adhesion, it
should be strictly construed against the
person or the party who prepared the
contract. Judge Teves here is correct. We
will apply equity. Obviously, if the case will
be tried in Cebu, it will discourage all the
plaintiffs who are all residents of Cagayan
de Oro City. Every time there is a hearing
they have to go to Cebu. It is very
expensive. But if the case will be tried in
Cagayan de Oro city the defendants will
not be inconvenienced because they also
have an office there. They have a
manager and they have people there.
Lawyers, too. So, despite the exclusive
stipulation laid down in Polytrade, the SC
refused to apply it in the case of Sweetlines.
So, naging exception.
ARQUERO vs. FLOJO
168 SCRA 54
Arquero, the petitioner here is the
municipal mayor of the municipality of Sta.
Teresita of Cagayan Valley in Northern
Luzon. He is the mayor and he is a lawyer.
He sent a telegraphic message to RCPI
branch in Apari Cagayan addressed to the
congressman of Cagayan who is in Manila.
Ang message sa telegrama was: “I’m going
there to confer with you.” He probably
needs a favor from the congressman for his
town. Now, the telegram form of RCPI
contains this stipulation: In case of suit
relative to the transmittal of the telegram,
the venue thereof shall be the courts of
Quezon City alone and in no other courts.
Restrictive no? Talagang exclusive. So, he
sent the telegram. Then he went to Manila.
When he met the congressman, the latter
even scolded him. Bakit sir? Padala ka ng
telegrama sa akin. May kailangan ka ako
pa ang magbayad ng telegrama mo.
Collect! Hindi man yun collect sir ba.
Binayaran ko yon. Hindi collect yun, ako
ang nagbayad. So, nagalit pa yung
congressman. Balik siya ng Cagayan. He
sued RCPI. Na-embarrass siya, eh. So he
filed a case against RCPI for damages
before the RTC of Apari, Cagayan. Of
course, he is a resident there. RCPI moved
to dismiss because of improper venue. The
trial court dismissed the case. Arquero went
to the SC questioning the dismissal citing the
case of Sweetlines.
The SC said. Teves will not apply.
In the first place abogado ka nabasa mo.
Nakapirma ka pa diyan. In other words,
you are a lawyer, eh. You understand the
implications.
Of course this is not found in the decision but this is
how I analyze comparing Arquero and Sweetlines. How come
the SC refused to apply the ruling in Teves. Well, of course,
when you buy a ticket eroplano or barko you do not bother to
read. As a matter of fact I don’t even think you ever saw it.
Paano mong mabasa sa liit ng print? But yong telegrama
makita mo ang laki-laki ng stipulation. nakalagay doon sa
side. It is impossible that you have not read it. Tsaka isa pa,
when you buy a ticket, o etong bayad, tapos. Eh telegrama,
eto yung forms, there are conditions, pirma ka pa diyan. So,
they are entirely different. What is worse, sabi ng SC you are a
lawyer. You should be careful about what you are signing. So,
nadisgrasya. So, the SC refused to apply the ruling in the case
of Arquero.
Jurisdiction vs. Venue
The last point that we are going to discuss here is how
to distinguish jurisdiction from venue. Because that was a
favorite bar question before.
For example, you are renting my apartment in Davao
City. We are both from Davao City. You did not pay the
rentals. So I have a case of unlawful detainer against you.
Suppose I will file a case against you to eject you from my
apartment and I will file it in the MTC of Cebu City, will you
question the case? Yes. What will be your objection? Will you
question the jurisdiction of the MTC of Cebu? No, because the
court of Cebu has proper jurisdiction because that is an MTC.
Ano ba ang nakalagay sa Judiciary Law? Where will you file
ejectment cases? The Judiciary Law says that forcible entry
and unlawful detainer cases shall be within the exclusive
jurisdiction of the MTC. I filed the case in the MTC. Tama yon.
You question the jurisdiction if it is filed in the MTC. In other
words, the law says forcible entry and unlawful detainer cases
shall be within the original exclusive jurisdiction of the MTC.
Therefore every MTC in the Philippines has the power to try an
unlawful detainer or forcible entry case. In other words, ang
ireklamo mo bakit sa Cebu. it should not be the MTC of Cebu
but the MTC of Davao City. So the correct objection is
improper venue and not jurisdiction.
So what is the main difference between jurisdiction
and venue? Jurisdiction refers to the court’s authority to hear
the case whereas venue refers to the place where the action
is brought or tried. So, while the case was filed in Cebu, you
are not actually questioning the jurisdiction of an MTC. How
can you question when actually under the Judiciary Law, the
MTC has jurisdiction. Dapat ang i-question mo dapat sa
Davao City. Lugar pala ang ginareklamo mo hindi ang court.
Now, for example, I will file the unlawful detainer case
in Davao City and I will file it in the RTC of Davao City. What is
the defect now? Here, you are now questioning the proper
court. Hindi ang lugar. So the correct objection there is lack
of jurisdiction. Yan. That is the main difference between
jurisdiction and venue in civil cases.
Now, in criminal cases, the answer is different. In
criminal cases, venue means territorial jurisdiction. For
example, the crime is committed in Davao City. Then the
criminal case is filed in Cagayan de Oro City. If you are lawyer
for the accused, you will file a motion to quash on the ground
that the Cagayan court has no territorial jurisdiction. Because
under the law, it should be filed in the place where the crime
was committed. kaya in criminal cases, venue and territorial
jurisdiction are identical. venue is territorial jurisdiction. But in
civil cases, venue is venue, jurisdiction is jurisdiction and they
have nothing to do with each other. they are completely
separate and distinct. That is one thing you have to
remember. That is why there was a question in the bar, years
ago. Distinguish jurisdiction from venue and state in what
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instance they coincide. The answer is of course, jurisdiction is
the authority, venue is the place and they coincide in criminal
cases because in criminal cases, venue is synonymous with
territorial jurisdiction. But in civil cases they have nothing to do
with each other. So remember that.
Another distinction. Jurisdiction over the subject
matter of the case cannot be waived and cannot be subject
to an agreement whereas venue is subject to waiver or
agreement. What is the implication of that distinction? When
for example, an unlawful detainer case is filed in the RTC, even
if the defendant will not question the jurisdiction of the RTC, the
court will dismiss the case just the same because lack of
jurisdiction cannot be waived. But in venue,if I will file a case
against you in Cebu City where we are both from Davao City,
so improper. But you also like it because you also want to go
to Cebu. So, hindi ka nag-reklamo. Okay. The case will go
on. It can be waived. proper venue can be waived if the
defendant will not question it. Jurisdiction cannot be the
subject matter of an agreement. We already discussed that
principle. We cannot agree that a case for legal separation
will be tried in the MTC because jurisdiction over the subject
matter is conferred by law not by agreement between the
parties. But venue can be the subject matter of an
agreement. It is there in Rule 4. We can agree in writing that
venue will be at another place other than where the parties
reside.
The third distinction is that jurisdiction is governed by
Substantive Law whereas venue is governed by Procedural
Law. What law defines the jurisdiction of our courts?
Jurisdiction is substantive. Venue is procedural. BP 129 which is
a substantive law. The rule on venue is found in Rule 4 of the
Rules of Civil Procedure. If you look at BP 129, wala namang
sinasabing saan. Basta MTC or RTC. Because saang lugar ay
nasa Rules of Court.
Fourth distinction: Jurisdiction refers to the party’s
relation to the court whereas venue refers to the relation
between the parties.
And finally, jurisdiction limits the court’s authority
whereas venue limits the plaintiff’s rights.
So, in sum, the distinctions between jurisdiction and
venue are as follows:
1. Jurisdiction refers to the
court’s authority to hear the case
whereas, Venue refers to the
place where the action is brought
or tried.
2. Jurisdiction over the
subject matter of the case cannot
be waived and cannot be subject
to an agreement whereas,
Venue is subject to waiver or
agreement.
3. Jurisdiction is governed
by Substantive law whereas,
Venue is governed by Procedural Law.
4. Jurisdiction refers to the
party’s relation to the court
whereas
Venue refers to the relation between
the parties.
5. Jurisdiction limits the
court’s authority whereas
Venue limits the plaintiff’s rights.
End of Rule 4
Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
Sec. 1. Uniform Procedure. – The procedure
in Municipal Trial Courts shall be the same as in
the Regional Trial Courts, except (a) where a
particular provision expressly or impliedly
applies only to either of said courts, or (b) in
civil cases governed by the Rules on Summary
Procedure.
Sec. 2. Meaning of Terms. – The term
Municipal Trial Courts as used in this rules shall
include Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Court and
Municipal Circuit Trial Courts.
End of Rule 5
PROCEDURE IN REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
Of course, we have met the term pleadings. Even in
the Constitution, it says: The SC shall have the power to
promulgate rules on pleadings, practice and procedure x x x.
Then, we also discussed jurisdiction over the issues. Subject
matter, person, res and issues. Jurisdiction over the issues is
determined by the pleadings. So, what are pleadings?
Sec. 1. Pleadings defined. - Pleadings are
the written statements of the respective claims
and defenses of the parties submitted to the court
for appropriate judgment. (1a)
Pleadings are the documents that you file in court
where you state your position. So, if you are claiming, you
state your cause of action in writing. And that is what we call
your pleading. Ikaw naman, the defendant, you want also to
state your side, you want to out your defense, you also do it
through pleadings. So, that is where the parties will state their
respective positions. Actually, pleadings are the documents
where a party tells his story. If you are a plaintiff, meron kang
reklamo sa kalaban mo, you tell your story there. This is what
happened. This is what defendant did. so, I am asking the
court to order him to do this. Ikaw namang defendant, you
also tell your story. Pleadings are telling stories. Of course, the
manner of telling the story is in the correct legal manner. You
do not say: Once upon a time. Parang fairy tale. You tell your
story in a legal manner governed by legal documents and
legal forms.
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 COMPLAINT
What are these pleadings under the law on Civil
Procedure? Ang counterpart niyan sa Criminal Procedure
yung complaint or information where the fiscal will say that he Plaintiff, thru counsel
is accusing you of a crime committed on this date against so respectfully alleges that:
and so in the manner. But actually, in criminal procedure,
there are no such things as pleadings. Wala namang answer 1. Plaintiff A is of
doon, eh. An accused is not required to file a written answer legal age, a resident
in criminal cases. But in civil cases, everything should be done of this street, Davao
in writing. So, what are the pleadings allowed under the rules? City whereas
Sec. 2. Pleadings allowed. - The claims of a party defendant B is also
are asserted in a complaint, counterclaim, cross- of legal age and a
claim, third (fourth, etc.)-party complaint, or resident of this
complaint-in-intervention. place.

The defenses of a party are

alleged in the answer to the pleading asserting a 2. On Nov. 5, 1996,
claim against him. defendant secured
a loan from plaintiff
An answer may be responded to in the sum of P15,000
by a reply.(n) payable within one
year from said date.

So, the pleadings under the rules are complaint, 3. The account is
counterclaim, cross-claim, third (fourth, etc.) party complaint, already overdue but
complaint-in-intervention, answer and reply. Now, if you are despite repeated
the one claiming, ikaw ang naga-demanda, the correct demands,
pleading where you will state your claim is either a complaint, defendant failed
counterclaim, cross-claim or third (fourth, etc.) party complaint and refused and still
or complaint-in-intervention. So, ano man ang mga ito? We fails and refuses to
will all of them under this rule. Complaint-in-intervention will be pay the same.
discussed in Rule 19.

Wherefore, it is
Ikaw naman, you want to defend yourself, the respectfully prayed that
defense of a party are alleged in the answer to the pleading judgment be rendered
asserting a claim against him. So, answer to complaint, against the defendant
answer to counterclaim, answer to cross-claim, etc. So, ako ordering him to pay
complaint, ikaw, answer. Ngayon, yung answer mo, gusto plaintiff the sum of
kong sagutin, ang tawag naman ay reply. Answer will be P15,000.
responded to by a reply.

Davao City, Philippines.

The Complaint
We will discuss the first pleading, the complaint. A
complaint is also called an initiatory pleading. Why? Because
that is the first pleading. Actually, the plaintiff starts the ball
rolling. A civil case cannot arise until the plaintiff files a case in
court. And since the first pleading is the complaint, it is called
initiatory. It will initiate the civil action. So, what is a
complaint?
That is the complaint. So, in three paragraphs, you
have stated your cause of action and the elements are there.
The right, obligation, violation and the damage caused. Hindi
kailangang mahaba ang complaint. The shorter, the better.
So, with that, summons will be issued by the court, serve a
copy to the defendant. The defendant will have to answer
the complaint. You must prepare your defense by filing what is
called an answer.

Sec.3. Complaint. - The complaint is the The Answer

pleading alleging the plaintiff’s cause or causes of
action. The names and residences of the plaintiff
and defendant must be stated in the complaint.
(3a) Sec. 4. Answer. - An answer is a pleading in which
a defending party sets forth his defenses. (4a)

The complaint is the pleading alleging the plaintiff’s

cause/s of action. Then, it must state the name, the Very short, no. So, the defendant sets forth his
residences of the parties. A simple case to collect an unpaid defenses in the answer. That is why an answer is called a
loan. This is how it is usually worded: responsive pleading. Why? it is the pleading responding to the
complaint. What are your possible defenses? I did not borrow
money from you. I ever saw you. I don't even know your
name. Or, yes, you gave me money. Regalo man to, ba. Dili
man to utang. Or even still, bayad na. Hagbay rang
nabayran. At least, you state that in your answer. Or, that was
already extinguished by condonation. Di ba quits na yon? Or
nag-prescribe na. Yan ang mga tinatawag na defenses. You
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state that in your pleading and that is what is called the
answer.
Types of Defenses
The answer is the pleading where you state your
defenses. What are the types of defenses recognized under
the law? Sec. 5 says there are two types of defenses:
Defenses may either be negative or affirmative.
Sec. 5. Defenses - Defenses may either be negative
or affirmative.
a) A negative defense is the special denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
b) An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him.
The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of
confession and avoidance.
a] Negative defense or defense of specific denial
Briefly, a negative defense is called a defense of
specific denial. Plaintiff says defendant borrowed money from
him and defendant has still not paid him despite the fact that
the loan is already long overdue. Eto ngayon ang answer.
Defendant
denies the allegation in
the complaint that he
borrowed money from
plaintiff in the sum of
P15,000, the truth of the
matter being, defendant
has not received
anything from plaintiff, he
does not even know
plaintiff and has never
met him in his life.
That is an example of a negative defense. Total
denial, ba. Meaning, what you are saying is untrue. A specific
denial. That is why a negative defense is called a defense of
specific denial.
b] Affirmative defense or defense of confession and avoidance
An affirmative defense, on the other hand, is
described briefly as a defense of confession and avoidance.
The term is found in the last part of par. (b). In an affirmative
defense, the defendant may admit what you are saying in
your complaint. I borrowed money from you. Admitted. The
account is due. Admitted. I have not paid you. Admitted.
However, you cannot collect from me because the account
has already prescribed. Meaning, I will admit what you are
saying but just the same, I am not liable. Kaya nga, you
confess, eh. I confess to what you say but I still avoid liability.
An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the material
allegations in the pleading of the claimant, would nevertheless
prevent or bar recovery by him. Meaning, even if I admit what
you are saying, still you cannot recover from me. Examples of
affirmative defenses are: fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by
way of confession and avoidance. That is why it is called a
defense of confession and avoidance.
Suppose, you sue me for damages arising from
breach of contract. I admit I entered into a contract but I
have no obligation to comply because the contract is null and
void. The contract is illegal. The stipulation is contrary to
public policy, therefore, I am not bound. I admit what you say
but I am not liable because if the illegality of the subject
matter of the contract.
Or, you sue me because according to you I entered
into a contract and I refused to comply. So, you file a case
against me for specific performance or for damages. Then I
say: It’s true that I entered into a contract with you. It’s true I
did not comply. But there is nothing you can do because the
contract is oral and the contract is covered by the statute of
frauds. In order to be enforceable, we should have reduced it
into writing. Since we never reduced it into writing, I am not
bound to comply.
The Counterclaim
Let us go to the third pleading. Sec. 2 says the claims
of the party are asserted in a complaint, a counterclaim x x x.
So, what is a counterclaim?
Sec. 6. Counterclaim. - A counterclaim is any claim
which a defending party may have against an
opposing party. (6a)
So, ganito yan. Plaintiff files a complaint against me
for damages arising from vehicular collision. The plaintiff will
say in his complaint: That on such and such a date, plaintiff is
driving his car carefully. Then all of a sudden, defendant
comes, driving his care recklessly, over-speeding, violation of
all traffic rules and bumped plaintiff’s car. The damages
amounted to P200T. Usually, ganyan ang allegation. Ngayon,
I will answer. I deny that I am the one negligent. I was driving
carefully. You were the one who bumped my car, you were
the one reckless. Therefore, I am not liable for the damage to
your car. That is your own fault. Yan ang answer ko. Yan ang
aking depensa.
But I will not stop there. Sasabihin ko pa: As a matter
of fact, because you were the one negligent, my car is also
damage and the damage to my car is P300T. So, hindi ako
ang dapat magbayad sa iyo. Ikaw itong magbayad sa akin.
So, I am also claiming against you for the damage to my car.
So, you are filing a case against me claiming damages, saying
I was the one negligent. Ang depensa ko naman is you were
the one negligent, in fact, ikaw itong magbayad. so, claim
din ako. Balikan kita. That is what is called a counterclaim.
May demanda ka sa akin. May demanda din ako sa iyo. So,
ang tawag sa akin is counterclaimant.
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 Now, in a counterclaim, defendant becomes the
plaintiff and the plaintiff becomes the defendant. Just to
illustrate: A files a case against B. That is the main complaint.
In the main action, A is the plaintiff, B is the defendant. Then, B
files an answer with a counterclaim. So, in a counterclaim, B is
the plaintiff and A is the defendant. So, baliktad. There are
now two cases to be tried. There are now two causes of
action to be tried in the same case. The main action of A
against B and the counterclaim of B against A.
If your complaint against me is P200T, will my
counterclaim be also limited to P200T? Or, you file a case
against me where your claim is P200T, my counterclaim is P1M.
That is allowed. There is no law which says that the
counterclaim should only be limited to the amount that the
original plaintiff is claiming. Meaning, I can assert a claim 5
times the amount you are claiming. Well of course, what will
be awarded by the court is another story. But the point is
puwede kitang balikan 5 times pa sa gina-claim mo sa akin.
Now, when the main action is damages, kailangan
ba ang counterclaim ko damages din? Suppose, you file a
case against me for damages arising from a vehicular collision.
File naman ako ng counterclaim for recovery of a piece of
land. Accion publiciana ang balik, no? Ang main action
damages, tapos ang counterclaim, accion publiciana. Is that
allowed. Yes, that is allowed. Puwede. There is no provision in
the rules which says that if the main action is damages, the
counterclaim should also be damages.
Or for example, you file a case against me for
recovery of unpaid loan. Ang counterclaim ko, rescission of
partnership contract. Puwede? Yes. Malayo, no? In other
words, there is no connection between what you are asking
and what my answer is. But what is important is tayong
dalawa ang naglalaban. If you will not allow me to file my
counterclaim against you, that will be another case in the
future. Nandito na tayo so lahat ng ating reklamo, we might
as well have to finish it. That is allowed. So you sue me, I sue
you and I will sue you in the same case, ha. I will not file
another case. And I am called the counter-claimant.
DE BORJA vs. DE BORJA
101 PHIL 911
A died and X was appointed as
administrator of the estate of A. X filed an
action against W who owes the estate of A
to collect the unpaid loan. So X, in his
capacity as administrator of the estate of A,
filed a case against W. W, in turn, filed an
answer with a counterclaim against X
because it turned out that W pala has a
claim against X. The question that was
asked in the bar was whether the
counterclaim was properly filed.
The SC said that the counterclaim
is improper because while any counterclaim
can be set up, the same must be available
against the opposing party in the very same
capacity in which said party sues. Here, the
opposing party X sues as administrator. A
counterclaim must be set up against him in
that same capacity. Why? X is not actually
suing W in his personal capacity but as legal
representative of the estate of A. The real
party is the estate of A so X is just acting as
representative so dapat ang counterclaim
ni W against X is also in his capacity as
administrator. Pero yung counterclaim ni W
kay X is in his personal capacity. So, the
counterclaim is improperly filed.
RECAP
So, we have already started with the study of
pleadings, the kinds of pleadings. Last night, we took up the
following topics: What do you understand by pleadings? That
is Sec. 1. What are these pleadings which are allowed by the
rules? They are mentioned in Sec. 2. Of course, the first
pleading, the initiatory pleading, is called the Complaint as
defined in Sec. 3. And the rule is when the defendant is served
a copy of the complaint together with the summons later, he
must respond to the complaint and the response there is
called an Answer. That is why an Answer is called a responsive
pleading. That is where he is supposed to state his defenses.
And then of course, under the rules of civil
procedure, what are the types of defenses? You have Sec. 5.
And how do you distinguish negative from affirmative
defenses? They are explained in Sec. 5. Then we have gone
as far as Sec. 6, the third pleading, Counterclaim. A
counterclaim is actually a counter complaint by the
defendant against the plaintiff in the same action. So, in the
same action where he is sued, the defendant is also suing the
plaintiff. So, who is the plaintiff and who is the defendant?
Both of them are plaintiffs and defendants at the same time.
In the complaint, you are the plaintiff, I am the defendant. In
the counterclaim, I am the plaintiff and you are the
defendant.
Compulsory counterclaim
Sec. 7. Compulsory counterclaim. - A
compulsory counterclaim is one which being
cognizable by the regular courts of justice, arises
out of or is connected with the transaction or
occurrence constituting the subject matter of the
opposing party’s claim and does not require for its
adjudication the presence of third parties of whom
the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the
court both as to the amount and the nature thereof,
except that in an original action before the Regional
Trial Court, the counterclaim may be considered
compulsory regardless of the amount. (n)
Now, based on Sec. 7, it tells us that actually there
are two types of counterclaims. What are they? They are
called compulsory counterclaim and the other type is
permissive counterclaim.
Compulsory vs. permissive counterclaim
When is a counterclaim compulsory? A counterclaim
is compulsory if it complies with the definition in Sec. 7. If it
does not comply with the definition in Sec. 7, then it is a
permissive counterclaim. What are the elements of a
compulsory counterclaim? How do we know whether a
counterclaim is compulsory or permissive? Based on Sec. 7,
the elements of a counterclaim to be compulsory must
conform to the following conditions:
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Compusory counterclaim, requisites
1) It must be cognizable by the regular court of
justice;
2) It arises out of or is connected with the
transaction or occurrence constituting the subject
matter of the opposing party’s claim;
3) It does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction; and
4) It must be within the jurisdiction of the court
both as to the amount and the nature thereof
except that in an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount.
5) A compulsory counterclaim or a cross-claim
that a defending party has at the time he files his
answer shall be contained therein.
The fifth requisite is not found in Sec. 7. It is actually
found in Rule 11, Sec. 8 which provides:
Sec.8. Existing counterclaim or cross-claim. - A
compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer
shall be contained therein. (8a, R6)
In other words, for a counterclaim to be compulsory,
the defending party who is asserting it has a counterclaim at
the time he files his answer. Meaning, the counterclaim
already matured before the answer. That is the last requisite.
The counterclaim is already existing or has already matured at
the time he files his answer. Now, you remove anyone of the
five requisites, the counterclaim becomes permissive. We will
go to these requisites one by one.
1) It must be cognizable by the
regular courts of justice;
Therefore, you file a case against me which is
cognizable by the regular court. If my counterclaim against
you is a labor case arising out of the labor code which is
cognizable by the NLRC, then I cannot make a compulsory
counterclaim. Because I cannot file a labor case in court.
That is not cognizable. So, it can never be a compulsory
counterclaim. This requisite is not found under the ‘64 Rules.
That is not mentioned at all but that is common sense. A
counterclaim to be compulsory must be cognizable by the
regular court of justice. Of course, not cognizable by the SEC,
by the NLRC or any other administrative body.
The second requisite is the most important.
2. It arises out of or is
connected with the
transaction or occurrence
constituting the subject
matter of the opposing
party’s claim.
Meaning, the counterclaim arose out of the subject
matter of the complaint. You have a complaint against me.
Ang counterclaim ko is also related to your case against me.
So, it arises out of or is necessarily connected with the subject
matter of the main action or opposing party’s claim. Let us go
to specific examples.
(1) Suppose, you will file a case against me for
damages arising out of a vehicular collision. That my vehicle
bumped your vehicle because of my negligence causing
damages to your vehicle. So you want hold me liable for
those damages. In my answer, I denied negligence. I said
you were the one being negligent. And now here is my
counterclaim: As a matter of fact, because you were the one
negligent, my vehicle is damaged, you should be the one to
pay for the damages sustained by my car. Is my counterclaim
arising out of the subject matter of your action or not?
Yes. We are talking of the same accident, the same
banggaan. You are talking of an accident where your car
was damaged. That is the subject matter of your action. Ako
naman, I say you should be the one to pay me for the
damage to my car. In other words, my counterclaim arose out
of the same incident. So, the counterclaim is compulsory.
(2) You file a case against me for recovery of
possession of a piece of land, accion publiciana. Of course, I
will have to file an answer. Sabi ko, actually I introduced
necessary improvements on the land. Or, I have incurred
necessary expenses on the land. You should also reimburse
me for the expenses incurred for preserving your land. Will you
say that my counterclaim arose out of the same subject
matter of your main action? Yes, because we are talking of
the same land. So, it is a compulsory counterclaim.
(3) You file a case against me to claim damages
arising from a vehicular collision. In my answer with
counterclaim, I say you return to me the land which you took
from me. Would you say that my counterclaim arose out of
the same subject matter of your action? No. There is no
connection, di ba? You are talking about a vehicular collision
and I am talking about recovery of a piece of land. So, since
the counterclaim did not arise out of or is not necessarily
connected with the same subject matter of the main action,
the counterclaim must be permissive.
Compulsory counterclaim or cross-claim
if not set up, barred
So, those are some examples. Now, before we
continue further, what is the importance in determining
whether a counterclaim is compulsory or permissive? Well as
the term implies in a compulsory counterclaim, the
counterclaim is compulsory. If permissive, the counterclaim is
allowed but not compulsory.
Now, under the rules, the effect of a compulsory
counterclaim is that a defendant is obliged to claim the
counterclaim in the same action. He cannot file a separate
case for the purpose of claiming from the plaintiff. It must be
invoked in the same action. If not invoked in the same action,
the counterclaim is barred forever.
But if the counterclaim is permissive, the defendant
has a choice of claiming it in the same case where he is sued
or he may not file a counterclaim against the plaintiff but later
on he will file another case against the plaintiff. That is why it is
called permissive. You are permitted to invoke it as a
counterclaim but if you do not want to, you can file another
case against the plaintiff later.
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Where do you find that principle that a counterclaim
which is compulsory must be raised or claimed in the same
case where he is being sued otherwise he is barred forever?
That is found in Rule 9, Sec. 2:
Sec.2. Compulsory counterclaim, or cross-claim, not
set up barred. - A compulsory counter-claim or a
cross-claim, not set up shall be barred. (4a)
But if the counterclaim is permissive, even if it is not set up as a
counterclaim, it is not barred. So, let us go back to our
example.
(1) You file a case against me to claim damages
because of the collision. My car was also damaged in that
same collision. My defense is wala akong kasalanan. You are
the one at fault. But I did not claim against you. Meaning, I
just defended myself. After trial sabi ng court the defendant is
not the one at fault. It was the plaintiff. So, the complaint of
plaintiff was dismissed. So, since dismissed na, ngayon, balikan
kita. Idemanda kita ngayon to recover the damages
because I am not liable to you pala. You are the one liable to
me so I will file to recover damages against you. In that case,
plaintiff will move to dismiss my counterclaim. Why? Bakit
hindi mo yan hiningi noon? Dapat noon pa sa first case. You
cannot file another case to claim that. It must be set up
because it is a compulsory counterclaim. Kaya nga
compulsory, eh. You are obliged to set it up in the first action.
(2) I will file a case against you to recover a piece of
land. After trial, you lost. So the court said you have to return
the land to me. After that, you file a case against me to
reimburse me for the necessary expenses I incurred on the
land. If you do that, I will move to dismiss the case. You
cannot file another case. You should have claimed that in the
case I filed against you earlier. You are obliged under the law
to raise it as a counterclaim. If you fail to do it under Rule 9,
Sec. 2, you cannot claim your improvements forever. Barred
ka na. That is the effect of a compulsory counterclaim.
On the other hand, if the counterclaim is permissive
because it did not arise out of or is not connected with the
subject matter of the action, what are the options of a
counter-claimant?
(1) You file a case against me for recovery of land
and my claim against you is damages due to vehicular
collision. So, the counterclaim is permissive. What are my
options? You file a case against me for recovery of land, I will
also file a counterclaim for damages arising from vehicular
collision. Meaning, we will settle this in one case. Puwede yan.
Pero I can also say mag-file ako ng ibang kaso. Meaning, I will
not invoke it in the recovery of land case you filed against me
but I will instead file another case against you for damages. Is
that allowed? Puwede rin. Kaya nga permissive, eh. It can
be invoked as a counterclaim if you want it. If not, you can file
another case. That is the importance between a compulsory
counterclaim and permissive counterclaim.
Now, as I said, among the requisites of a compulsory
counterclaim, that is the most important and the most pivotal.
That the counterclaim arises out of or is connected with the
transaction or occurrence constituting the subject matter of
the opposing party’s claim. That is the most important
element. That is the number one test. To borrow the language
of the SC in the 1992 case of:
MELETON vs. CA
216 SCRA 485
It has been postulated that while a
number of criteria have been advanced for
the determination of whether a
counterclaim is compulsory or permissive,
the one compelling test of compulsoriness is
the logical relationship between the claim
alleged in the complaint and that in a
counterclaim. That is where conducting
separate trials of the respective claims of
the parties would entail a substantial
duplication of effort and time as where they
involve many of the same factual and/or
legal issues.
Meaning, there is a logical relationship if the
evidence that I would submit to prove is practically identical
with the evidence to be submitted in the first case.
What is the third requisite of a compulsory
counterclaim?
3) It does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction.
Meaning, it does not involve any indispensable party
over whom the court cannot acquire jurisdiction. Because if
there is an indispensable party and there is no way for the
court to acquire jurisdiction, then the claim is not compulsory.
How can it be decided by the court when there is a missing
person involved in the counterclaim?
4) That a counterclaim must be within the jurisdiction
of the court both as to the amount and the nature
thereof except that in an original action before the RTC,
the counterclaim may be considered compulsory
regardless of the amount.
A counterclaim must be within the jurisdiction of the
court both as to the amount and the nature thereof. Look at
these examples:
(1) A files a case against B for forcible entry.
Meaning, B entered the land of A and took possession. So,
ang court which has jurisdiction is MTC. B also claims that he
introduced improvements into the land amounting to P200T.
So, he is asking A to reimburse him for those improvements.
Under the law on property, when it comes to necessary
expenses, even a possessor in bad faith is entitled to
reimbursement. So, even a squatter, like B can claim for
reimbursement. So, A files a case against B for forcible entry
and B files a case against A for reimbursement of the
necessary expenses amounting to P200T which is cognizable
by the RTC. Is the counterclaim compulsory or permissive? It is
permissive because while the counterclaim is necessarily
connected to the subject matter of the action but another
element is missing. The counterclaim is beyond the jurisdiction
of the MTC. Therefore, the MTC cannot grant relief even it
arose out of the same transaction.
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Exception to Requisite No. 4
But there is an exception. Except that in an original
action before the RTC, the counterclaim may be considered
compulsory regardless of the amount. So, in an original action
before the RTC. My problem earlier was an original action
before the MTC. Let us draft a problem which will cover the
exception.
(2) A files a case against B for recovery of possession
of a piece of land, accion publiciana where the value of the
land is over P20T. Where will I file the case? RTC. B, the
defendant, now files a counterclaim against A. You have to
reimburse me for the necessary expenses that I incurred in
preserving the land which expenses amount to P50T. Can the
RTC grant the relief of P50T in the counterclaim of B? Yes. But
the RTC’s jurisdiction in money claim is over P100T and the
claim of B is only P50T. Kahit na, no. So, if the original action is
before the RTC, the counterclaim may be considered
compulsory regardless of the amount. Meaning, if the original
action is in the RTC and the amount to be recovered is below
P100T which is cognizable in the MTC, the RTC can still
entertain the counterclaim. What is the principle here? The
principle here is if the main action is triable in the RTC, the
counterclaim becomes only ancillary or incidental to the main
action and jurisdiction over the main action automatically
carries with it jurisdiction of the incidental or ancillary action.
But kung baliktad, the main action is forcible entry,
triable in the MTC, and the counterclaim is P100T for necessary
expenses triable in the RTC, this time the MTC cannot act on
the counterclaim because it has no jurisdiction. It does not fall
under the exception. In other words, if your counterclaim is
higher than the main action, it cannot be incidental. Now,
where did that exception came from? That exception was not
found in the previous rules. However, it was laid down by
decided cases. The rule now and the rule before are actually
the same. The rule before July 1, 1997 was that if the main
action is accion publiciana in the RTC and the defendant is
claiming for reimbursement of P30T lang, the RTC can entertain
the counterclaim. If the counterclaim is compulsory because
it arises out of the same transaction, jurisdiction over the main
action automatically carries with jurisdiction over the ancillary
action. Pero kung baliktad, the main action is forcible entry
and the counterclaim for reimbursement is more than P100T,
then you cannot say it is incidental. The MTC cannot entertain
the counterclaim because it beyond its jurisdiction. That is still
the law now kaya nga nilagay na sa Rules. It was laid down
by the SC and it is now incorporated in the 1997 Rules.
Well of course, the last requisite is found in Rule 11,
Sec. 8.
5) A compulsory
counterclaim or a cross-claim
that a defending party has at
the time he files his answer
shall be contained therein.
The counterclaim must have matured before answer.
Meaning, when I file my answer, the counterclaim is already
existing, therefore, I could have filed my counterclaim
together with my answer. But if that counterclaim is not yet in
existence, then you cannot compel me to file it. How can I file
something which is not yet existing? If it is a counterclaim that
matured later, then it is not a compulsory counterclaim.
Those are the important points to remember whether
a counterclaim is compulsory or permissive. What is the
distinction between the two? What is the importance of
knowing their distinctions? That is Rule 9, Sec. 2. A compulsory
counterclaim not set up shall be barred forever.
Counterclaim in criminal cases
Javier Ruling
Now we will go to some interesting cases. The first
case is related to the subject of Criminal Procedure. A
controversial and the first of its kind, the case of:
JAVIER vs. IAC
171 SCRA 605 (1989)
It all started with a criminal case
filed in Makati. The spouses Reynaldo and
Estelita Javier filed a criminal case against
Leon Gutierrez, Jr. under BP 22, the
bouncing check law for issuing a bad
check. So, Gutierrez issued a check which
bounced for insufficient funds. The case
was filed before the RTC of Makati. The
Javiers did not reserve the filing of a
separate civil action. So, in Criminal
Procedure, the implication is that the civil
action for the recovery of the amount of the
check is deemed instituted in the criminal
action.
Gutierrez, in turn, filed a civil case
for damages against the Javiers in the RTC
of Catarman, Northern Samar. Sabi ng
accused he’s holding the Javiers liable for
damages because he claims that he was
tricked into signing the check that he issued
for which he is now being sued. So,
actually, he is explaining in the Samar court
the reason why he issued the check for
which he is facing a case in Makati. So, a
criminal action is filed against the accused
in Makati and the accused, in turn, filed a
civil case against the spouses in Samar.
The SC said the civil case in Samar
should be dismissed. Why? It was before
the Makati court that Gutierrez as accused
in a criminal charge of violation of BP 22
could explain why he issued the bouncing
check. Why are you explaining the
issuance of the bouncing check in Samar
instead of explaining it in Makati? Sabi ng
accused: I was tricked. Niloko nila ako.
Sabi ng SC: If that is so, then you explain
that and you can do this in a form of
counterclaim for damages for your alleged
deception by the Javier spouses. Therefore,
you can file a counterclaim for damages.
Where will you file the counterclaim for
damages? Well, since the civil action for
the recovery of the check is found in the
criminal action, you can file your
counterclaim for damages also in the
criminal case because the claim of the
spouses for civil liability is deemed instituted
in the criminal action.
Page 68 of 296

So, it was for the first time in the history of procedure
where the SC in the case of JAVIER ruled that there is such a
thing as counterclaim for damages by the accused to be
invoked in a criminal case. Because, as we know,
counterclaims are only invoked in civil cases. And yet, in
JAVIER sabi ng SC, anyway since the civil case against you is
also being claimed in the criminal case for violation of BP 22
and since there is no reservation to file a separate civil action,
then you explain in the criminal case. And if you also want to
hold them liable for damages, you can do so by way of
counterclaim. So, for the first time, as I said in the history of civil
procedure and also in criminal procedure, in the case of
JAVIER, the SC said a counterclaim is allowed in criminal cases.
There is no other case na sumunod sa JAVIER. And
many people criticized the ruling in the case of JAVIER. Bakit?
Wala namang nakalagay sa Rules na counterclaim in criminal
cases. So, what rules shall we apply? Even authors and
professors of Remedial Law seemed to have asked the SC on
the counterclaim in criminal case. Some justices nga, when
they reflected on the case of JAVIER remarked: Nabigla kami,
ba. Because the case of JAVIER spawned a lot of problems. If
a counterclaim is possible in a criminal case, a lot of problems
piled up. Even the SC cannot answer those questions. So, this
year a second case came up to the SC on the issue on
counterclaim in criminal cases. The case which is very recent
and not yet reported in the SCRA is the case of:
CABAERO vs. CANTOS
April 18, 1997
The SC had to study the case of
JAVIER again. This time, en banc ang SC.
Justice Artemio Panganiban, being the
spokesman of the SC said: Mukhang
mahirap. So, from now on, JAVIER should
go to sleep. The ruling in JAVIER should be
forgotten in the meantime until we can
revise the Rules of Court further. In the
absence of specific rules, there will be
confusion. In the meantime, the ruling in
JAVIER should be set aside. So, in the case
of Cabaero vs. Cantos, is there such a thing
as counterclaim in criminal cases? In the
meantime, wala. Forget it, said the SC.
Forget what we said in JAVIER.
Actually the SC did not say that
the ruling in JAVIER is bad or illogical. No,
kaya lang how to implement it is a big
problem because there are no specific rules
for counterclaim in criminal cases. Said the
SC: The logic of and mordancy(?)
notwithstanding, some reservations and
concerns were voiced out by members of
the court during the deliberations of the
present case. These were engendered by
the obvious lacuna (meaning void) in the
rules of court which contains no express
provisions for the adjudication of a
counterclaim in a civil action impliedly
instituted in a criminal case.
There is nothing wrong with the
ruling. The real problem lies in the absence
of clear cut rules governing the prosecution
of impliedly instituted civil actions and the
necessary consequences and implications
thereof. For this reason, the counterclaim of
the accused cannot be tried together with
the criminal case because it will
unnecessarily complicate and confuse the
criminal proceeding. Thus, the trial court
should confine itself to the criminal aspect
and the possible civil liability of the accused
arising out of the crime. The counterclaim
should be set aside or refused cognizance
without prejudice to their filing in separate
proceedings at the proper time. Until there
are definitive rules of procedure to govern
the institution, prosecution and resolution of
the civil aspect, and the consequences and
the implications thereof impliedly instituted
in a criminal case, trial courts should limit
their jurisdiction to the civil liability of the
accused arising from the criminal case.
That is now a rejection of the JAVIER ruling. Yun
ngang civil liability arising from the criminal case samok na
nga, di ba? Remember, there is a lot of complication there?
Meaning, the rules on procedure are already complicated.
Should the civil case be deemed instituted? Or should you file
a separate civil action? Look at Rule 111. Di ba magulo na
yon? Yan ang present balaod. Pasabugon pa nimo. Ay
purbida. That is what the SC is saying. Let us not confuse it
further. So, whatever we said in JAVIER, forget it. So, watch
out for this case paglabas sa SCRA.
RECAP
Last night, we concentrated on Sec. 7 which is a very
important provision of the rules. So, let us try to review. Under
the rules, there are two types of counterclaim: compulsory
counterclaim and permissive counterclaim. When is a
counterclaim compulsory? What are the requirements or
requisites? The requisites are found in Sec. 7 and also one
requisite is actually mentioned in Rule 11, Sec. 8. It must
already be in existence. It must be a matured cause of
action. At the time you file the answer, the counterclaim is
already available. Meaning, you could have raised it in your
answer. If you remove any of these requisites, the
counterclaim becomes permissive. And what is the most
important requisite of counterclaim? Whether the
counterclaim arises out of or is connected with the transaction
or occurrence constituting the subject matter of the opposing
party’s claim. That is the most important of all the requisites.
And what is the rule when the counterclaim is
compulsory? The defendant is compelled to invoke it against
the plaintiff in the same case that he is being sued as a
defendant. It cannot be the subject matter of a separate
action in the future that he will file against the defendant. He
must invoke it as a counterclaim. It cannot be the subject
matter of another complaint in the future because of Rule 9,
Sec. 2. A compulsory counterclaim, if not set up, is barred
forever. Then I gave you examples. If a counterclaim is
permissive, the defendant has two choices. Either (1) to invoke
it as a counterclaim in the case where he is being sued by the
plaintiff, or (2) he can file a separate action against the
plaintiff. He will file another complaint.
And then, one of the requirements of a compulsory
counterclaim is that the counterclaim must be within the
jurisdiction of the court trying the main action. That is why we
said, if the action is triable by the MTC, and the counterclaim is
triable by the RTC, it cannot be invoked as a counterclaim
because it is beyond the jurisdiction of the MTC. But suppose
the main action is triable by the RTC and the counterclaim is
Page 69 of 296
triable by the MTC, this time, can the RTC take cognizance of
the counterclaim? Yes, because of the exception. Except
that in an original action before the RTC, the counterclaim
may be considered compulsory regardless of the amount.
That is taken from decided cases, no. The reason there is that
the compulsory counterclaim is merely incidental to the main
action. If the court has jurisdiction over the main action,
automatically, it has jurisdiction over the ancillary action which
is the counterclaim. We have gone as far as that provision.
The Cross-claim
So, we have taken up Complaint, Answer,
Counterclaim. We will now go to the fourth pleading - the
Cross-claim under Sec. 8.
Sec. 8. Cross-claim. - A cross-claim is any
claim by one party against a co-party arising out
of the transaction or occurrence that is the
subject matter of the original action or of a
counterclaim therein. Such cross-claim may
include a claim that the party against whom it is
asserted is or may be liable to the cross-
claimant for all or part of a claim asserted in the
action against the cross-claimant. (7)
Yes, a cross-claim is any claim by one party against a
co-party. For example, a defendant against his co-defendant.
Unlike a counterclaim which is a claim by the defendant
against the plaintiff. So, we will illustrate how a cross-claim
looks like.
A and B secured a loan from plaintiff X the sum of
P200T where A and B made themselves jointly and severally
liable to X. Actually, the loan was obtained by B and A only
agreed to sign the promissory note to accommodate B.
Parang surety, ba. That is what you call an accommodation
party. Meron mang ganyan, ba. Si X, hindi niya kilala si B.
Pero A will also sign the note. So sabi ni X, okay. Because
anyway, X knows A. Mayaman yan, eh. So, sign si A. But in
reality, not a single centavo went to A. When the note fell due
and B failed to pay X, X sued A and B. Of course, each one
has to file his answer. But as far as A is concerned, sabi niya, I
can’t be liable for a loan which I haven’t got to enjoy a single
centavo. Everything went to B. So what will A do? He will also
ask in the same case that in the event that he will be held
liable to X and A is compelled to pay the loan to X, B should
also reimburse him (A) for the amount that he will pay X. So, A
will also claim against B and that claim is called a cross-claim.
A defendant claiming also against his co-defendant. A party
against his co-party. And what do you call A in the cross-
claim? He is called the cross-claimant. And what do you call
B? He is called the cross-defendant. So, in the main action, X
is the plaintiff, A and B are the defendants. But in the cross-
claim, defendant A becomes the cross-claimant and
defendant B becomes the cross-defendant.
Cross-claim vs. counterclaim
Now, take note that the requirement of a cross-claim
is that the cross-claim arises out of the transaction or
occurrence that is the subject matter of the original action.
Now here, is the cross-claim of A against B related? Does it
arise out of the claim of X against A and B? Yes, because X is
filing a case against A and B based on the promissory note
and A’s cross-claim is also based on the same promissory note.
But in a counterclaim, iba ano? A counterclaim may
or may not arise out of the transaction or occurrence. Di ba in
a counterclaim, you sue me for recovery of land, my
counterclaim is damages arising from vehicular collision. So,
there is no connection between the complaint and the
counterclaim. Is that allowed? That is allowed in Sec. 6. As a
matter of fact, if it is arising out of the same transaction, it
becomes a compulsory counterclaim. If it does not arise out
of the same transaction, it becomes a permissive
counterclaim.
But here, for example, X filed a case against A and B
to collect a loan on the promissory note. Sabi ni A, di ba
binangga mo man ang kotse ko last week? Nandito naman
tayo, so I might as well file a cross-claim against you. Is that
proper? That is an improper cross-claim because the
requirement of a cross-claim is that a cross-claim must arise out
of the transaction or occurrence that is the subject matter of
the original action.
And the law says x x x transaction or occurrence that
is the subject nattier either of the original action or of a
counterclaim therein. So a cross-claim can arise also out of a
counterclaim. And the best example would be: A and B,
plaintiffs, filed a case against X. So, two plaintiffs suing X. X
filed his answer with a counterclaim against both of them.
Now, because of the counterclaim, A and B will now become
defendants. Can A file a cross-claim against B arising out of
the counterclaim? Yes. So, here is the plaintiff filing a cross-
claim against his co-plaintiff because of the counterclaim.
Remember in the counterclaim, A and B are the defendants.
That’s why the law says transaction or occurrence that is the
subject matter either of the original action or of a
counterclaim therein. So, let us think of a hypothetical
example.
1) A and B, co-plaintiffs, sued X and Y, co-defendants. So,
there are two plaintiffs and two defendants. And we will
assume that the complaint is collection of an unpaid loan.
So, there are two solidary creditors collecting against two
solidary debtors.
COMPLAINT
Main Action (Collection case)
A and B, co-plaintiffs
vs.
X and Y co-defendants
2) Now, can X file a cross-claim against Y arising out of the
main case? Yes, puwede, for reimbursement. X did not
enjoy a single centavo from the loan. The loan actually all
went to Y. So, X files a cross-claim against Y arising from the
unpaid loan from A and B.
CROSS-CLAIM
X, cross-claimant
vs.
Y, cross-defendant
3) But sabi ni X: But both of you (A and B) occupied also
my land so I’m suing you for damages. So, X files a
Page 70 of 296
 counterclaim for damages arising from the occupation of
his land.
COUNTERCLAIM
Defendant X, now plaintiff
vs.
Plaintiffs A and B, now co-defendants
4) So, A will have to answer naman the counterclaim.
Sasabihin niya: Actually the damages was not caused by
me but B. So, cross-claim naman siya kay B arising out of
the counterclaim of X.
CROSS-CLAIM OF COUNTERCLAIM
A vs. B
5) On the other hand, si Y naman has to answer to the
complaint (collection). But he says: Yung kotse ni B
binangga yung kotse ko noong isang buwan. So file
naman siya ng counterclaim against B.
COUNTERCLAIM
arising from vehicular collision
Y vs. A and B
6) Sabi naman ni B: But the real owner of the car is A. So,
file siya ng cross-claim against A.
CROSS-CLAIM OF COUNTERCLAIM
arising from claim of Y
B vs. A
Are all these possible? Yes. All these things are
possible in civil cases. So, bilangin mo, ilan yan? So, there are
now 6 cases to be tried in court. And all of these have to be
threshed out. So, in one action bakbakan na tayo dito. I have
not seen that kind of situation yet but that is possible. The rules
allow it. So, what is the reason behind that? The SC said: The
evident purpose of the rules is to avoid multiplicity of suits. And
toward this end, the rules allow and in certain cases compel,
as in compulsory counterclaims, to combine in one litigation
their conflicting claims more particularly when they arise out of
the same transaction because it becomes compulsory.
So, in effect how do you distinguish a cross-claim
from a counterclaim? There are two main distinctions
between a counterclaim and a cross-claim:
1. A counterclaim is a complaint by the
defendant against the plaintiff whereas a cross-
claim is a claim by the defendant against his co-
defendant.
2. A counterclaim may be asserted whether or
not it arises out of the transaction or occurrence
that is the subject matter of the action whereas a
cross-claim must always arise out of the
transaction or occurrence that is the subject
matter of the action or of a counterclaim.
Otherwise if it does not, it is not even a proper
cross-claim.
Effect of cross-claim or counterclaim
where main action is dismissed
Here is another situation. Suppose, X files a case
against A and B to collect an unpaid loan. A files a cross-
claim against B alleging that every centavo went to B.
Afterwards, the complaint of X against A and B is dismissed.
Can the cross-claim of A and B remain pending when the
main complaint is already dismissed or terminated? The SC
said no, because the life of the cross-claim depends on the life
of the complaint. When the complaint is dismissed, the cross-
claim has no more reason to exist.
Like for example, the complaint of X is dismissed. So,
wala ng habol si X sa loan. Ano pa ang habol ni A kay B na
isauli mo sa kanya na daog man sila against X? In other
words, when the complaint is dismissed, the cross-claim is
necessarily dismissed.
Unlike in a counterclaim, if you sue me for damages
out of a vehicular collision and my counterclaim is also arising
out of the same vehicular collision, pagna-dismiss yung sa iyo,
maiwan yung sa akin. O, di ikaw yung magbayad sa akin. Or,
you file a case against me for an unpaid loan. Ang
counterclaim ko sa iyo isauli mo ang lupa ko. Recovery of
possession. If your complaint is dismissed, buhay ang
counterclaim ko. Tuloy ang laban. But in a cross-claim, once
the complaint is terminated, the cross-claim is automatically
terminated.
The SC emphasized that in the 1992 case of:
RUIZ JR. vs. CA
212 SCRA 660
The SC said: A cross-claim could
not be the subject of an independent
adjudication. Once it loses the nexus upon
which its life depended, the cross-claimant
cannot claim more rights than the plaintiff
himself on whose cause of action the cross-
claim depended. The dismissal of the
complaint divested the cross-claimant of
whatever interest he might have had
before and also made the cross-claim itself
no longer viable.
So, the umbilical cord or the nexus of the cross-claim
is the main action. If the main action disappears, the cross-
claim is automatically dead. What is there to reimburse when I
did not pay anything? Yan. So, we have to remember all
these principles.
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Counter counterclaim and Counter cross-claim
Sec.9. Counter-counterclaims and counter-cross-
claims.- A counterclaim may be asserted against
an original counter-claimant.
A cross-claim may also be filed
against an original cross-claimant.
If you will notice, that is a new provision. There is no
such provision in the ‘64 Rules. So, for the first time, the Rules of
Court recognizes the concept of a counter-counterclaim. Or
a counterclaim to a counterclaim. Counter-counterclaim.
And counter-cross-claim. So, you can file a counterclaim
against the original counter-claimant. And if you are the cross-
defendant, you can file also a counter cross-claim against the
cross-claimant. Lalong nagulo no? Actually, even before the
new Rules of Court was enacted, this was already asked in the
bar. Is there such a thing as counterclaim to the
counterclaim? Tinanong na yan before. The rules call this now
as counter-counterclaim. And of course, the answer is yes sabi
ng SC. You can file a counterclaim to the counterclaim.
I will file a case against you to recover an unpaid
loan. You file a counterclaim against me for recovery of
possession of a piece of land. And I said you have no cause
of action. As a matter of fact, you have been harassing me
with your claim. So, balikan kita. Injunction to stop you from
harassing me from my possession. So, in effect my
counterclaim against you arose out of your counterclaim
against me. That is what you call counterclaim to the
counterclaim which the new rules call counter-counterclaim.
It’s a new provision but it is actually taken from decided cases.
The Reply
So, how many pleadings have we discussed?
Complaint, answer, counterclaim, cross-claim. Apat na. We
will now go to the fifth, the concept of reply, Sec. 10.
Sec. 10. Reply. - A reply is a pleading the
office or function of which is to deny or allege facts
in denial or avoidance of new matters alleged by
way of defense in the answer and thereby join or
make issue as to such new matters. If a party does
not file such reply, all the new matters alleged in the
answer are deemed controverted.
If the plaintiff wishes to interpose any
claims arising out of the new matters so alleged,
such claims shall be set forth in an amended or
supplemental complaint. (11)
Let us try to recall the previous sections. I will file a
complaint against you. What is your responsive pleading to
the complaint? That is called an Answer. Now in your answer,
you invoked new matters. That is what you call affirmative
defenses. Like for example, you invoke the affirmative defense
of prescription or statute of frauds. Or whatever it is which I
already mentioned in the previous sections. If I want to
respond to your defenses, where yung mga defenses mo are
actually baseless, am I entitled to file a pleading? Sagutin ko
yang mga depensa mo? I am the plaintiff, ibalik mo sa a akin
ba. Yes. And what is that pleading where I have to deny or
comment on your affirmative defenses? It is called the Reply.
So what do you call a reply? It is also a responsive
pleading. Why? It is actually a response to the affirmative
defenses alleged in defendant’s answer. So, try to picture. File
ka ng kaso sa akin - complaint. Sagutin kita - answer. Gusto
mong sagutin ang sagot ko - reply. Yan. That’s the pattern
no. Complaint, answer, reply.
Eh, halimbawa, ako ang defendant at gusto ko pa
ring sagutin ang reply. Meaning, I will comment on what you
said in your reply. What is the next pleading? No more. That is
the last pleading. Otherwise, walang katapusan. Sagutan na
lang tayo habang buhay. So, in other words, complaint,
answer, reply. That is the end.
Now, what happens if the plaintiff fails to file a reply?
Meaning, I will file a complaint against you, you file an answer
claiming prescription, statute of frauds, etc., hindi ko naman
sinagot. I never commented on your answer. Meaning, I did
not file a reply. Will it prejudice me as the plaintiff? Meaning,
by failing to file a reply, are all the defenses raised in the
answer deemed admitted by the plaintiff? The answer is No,
because the law says: If a party does not file such reply all the
new matters alleged in the answer are deemed controverted.
Anong ibig sabihin niyan? If the plaintiff does not file a reply,
all the affirmative defenses invoked in the answer are deemed
automatically denied. So, whether I file a reply or not, all your
defenses are deemed denied.
So, conclusion, the filing of the reply is optional. You may or
may not file it. It’s an optional pleading. I may or may not.
Kung gusto mo, puwede. Kung ayaw mo, puwede rin.
Because I do not have to deny your defenses. The law says
they are automatically denied. As a matter of fact, rarely
does a practitioner file a reply. Bihira man, ba. Sometimes, it
happens. But that is very rare. If you go the court, you look at
the pleadings of the lawyers. Complaint, Answer. Wala na.
Tapos. Sometimes, Reply but in most cases, wala because of
this Sec. 10. The filing of the reply is optional. It will not
prejudice the plaintiff. He is not deemed to have admitted the
defenses raised in the answer.
Reply vs. Answer to Counterclaim
And a Reply should not be confused with Answer to
Counterclaim because Answer to Counterclaim is also filed by
the plaintiff. A Reply is filed by the plaintiff in response to the
Answer. An Answer to Counterclaim is also filed by the plaintiff
in response naman to the Counterclaim contained in the
Answer of the defendant.
So, distinguish Reply from Answer to Counterclaim.
The distinctions are:
1. A Reply is a response to a defense in the
Answer whereas Answer to Counterclaim is a
response to another claim.
2. The filing of a Reply is generally optional
because of Sec. 10 whereas the filing of an
Answer to Counterclaim is generally
mandatory. Because if the plaintiff will not
file an answer to the counterclaim, he can
be declared in default on the counterclaim.
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Let us try to illustrate that. For example, file ng
pleading ang plaintiff. We will assume that the pleading is very
short, no. What is the initiatory pleading? Complaint. So, ang
sagot defendant, Answer. Ang answer ng defendant,
puwedeng sagutin ng plaintiff by way of reply pero optional di
ba? So, complaint, answer, reply.
Pero meron man ding reklamo ang defendant. So,
counterclaim against plaintiff. Generally, the counterclaim is
also attached to the answer. So, back to the plaintiff. Now,
plaintiff wants to respond to the counterclaim of defendant.
So he files an Answer to the counterclaim. And then we will
assume that defendant also wants to respond to the answer to
counterclaim. So ano yan? Reply to answer to counterclaim.
This is how it will look like.
OUTLINE OF FLOW OF PLEADINGS
Yan ang tinatawag na responsive pleadings. That
would be the flow of the pleadings. Yung mga reklamo natin.
I will respond to this. You will respond to that. So, do not
confuse reply with answer to counterclaim. Reply is answer to
the complaint. Answer to counterclaim is a response to the
counterclaim. The filing of a reply is generally optional. But the
filing of answer to the counterclaim is generally mandatory.
The Third-party complaint
Sec. 11. Third, (fourth, etc.)-party complaint. -
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. (12a)
First we will connect this with something you already
know. This is what we took up earlier. A and B secured a loan
from X. But actually A acted only as an accommodation
party. The real borrower actually is B. Every centavo went to
B. If the loan falls due and the loan is unpaid, X files a case
against A and B. And A not having enjoyed the money is
definitely going to run against B for reimbursement. What
pleading will A file against B? A cross-claim. That is if X files a
case against both of them and A is going to seek
reimbursement.
Suppose X files a case only against A. Anyway I can
collect the loan from either one. I do not have to file a case
against B because B is not really an indispensable party. So
pinaylan niya si A lang. But actually A did not enjoy a single
centavo and he wants also to claim against B. Sino ang file-an
niya ng cross-claim, eh siya man lang? In a cross-claim you file
your claim against your co-defendant. But isa man lang ka.
You cannot file a case against B because he is a stranger
man, ba. Sabi ni A: Hindi. Gusto ko kasali yan siya. Siya gud
ang nagkuha sa kuwarta. It is possible na pabayaan lang
muna ni X si B. Kung magbayad ako, file ako ng kaso later. A
will file another case against B in the future. I can seek
reimbursement from B in the future.
Pero kung gusto niyang sa kaso na ito kasali na si B,
puwede. In other words, kung bayaran ko si X bayaran ka na
rin ni B. But there is no cross-claim! What is the instrument by
which A can drag B into the case? The instrument is to file
what you call a third-party complaint. So, he will have to
instigate another complaint in the same case. Therefore, this is
the main complaint, X vs. A. So what do you call X? Plaintiff.
And A? Defendant.
And this is called the third-party complaint, A vs. B. In
the third-party complaint, A is called the third party plaintiff.
And B is called a third party defendant. So, in a third-party
complaint, he is now going to seek reimbursement from B. He
will drag B in the case. Sama ka dito. Maaari ba yang ako
lang dito? So, I will forcibly bring you into the picture. Because
X should have also filed a case against you. But ako lang man
ang pinaylan. So, ako ang sasabit sa iyo. It becomes now X
vs. A, A vs. B. Yan. That is the concept of a third-party
complaint.
Leave of court necessary
Now, take note. Can A just file immediately a third-
party complaint in that situation? What does the law say? A
third-party complaint is a claim that a defending party may
with leave of court. What do you mean by that phrase with
leave of court? With the permission of the court. So, in effect,
the procedure in filing a third-party complaint is that A will
have to file a motion that he will be allowed to include B into
the picture. Leave of court means there must be a motion
seeking the court’s permission.
And that is what distinguishes a third-party complaint
from a counterclaim and a cross-claim. Under the previous
sections, Sec. 6, when a defending party files a counterclaim
against the plaintiff, is leave of court required for a defendant
to file a counterclaim? No, hindi kailangan. You file a
complaint against me. I will answer with counterclaim. Hindi
na kailangan ng leave to file counterclaim. Derecho. The law
allows the defendant to file immediately a counterclaim. Is
leave of court required before a defendant can file a cross-
claim against his co-defendant? No. Leave of court is not
necessary in the filing of a counterclaim or a cross-claim. But
in the filing of a third-party complaint, the law requires first
leave of court.
Object of third-party complaint
And what is the purpose of a third-party complaint?
The purpose of a third-party complaint is contribution,
indemnity, subrogation or any other relief in respect of his
opponent’s claim. Therefore, what is the conclusion? The
subject matter of a third-party complaint must arise out of the
same transaction or occurrence. Meaning, the third-party
complaint is related to the main action. Parang cross-claim
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ba. The concept is similar to a cross-claim. It must be related And what is the object of a third-party complaint?
to the subject matter. It cannot be something new. The law says contribution, or indemnity, or subrogation, or any
other relief in respect of his opponent’s claim. Take note that
everything is in respect of his opponent’s claim. So, there must
There was a bar problem before. I’ve seen that here be a connection between your third-party complaint and the
in Davao. That’s why when I saw that third-party complaint, I main action against you. Now let us give example for each:
felt amused. I never thought that a lawyer would commit such
a mistake. The problem was: A filed a case against B
because according to A, B borrowed money from him and
never paid. Alam mo ang depensa ni B prepared by his
lawyer? The reason why I cannot pay you is because C and D 1) Contribution
who owe me money have not also paid me. Pagnagbayad
sila sa akin, yun ang ibayad ko sa iyo. And you know what B
did? He filed a third-party complaint against C and D. So may There are two solidary debtors and the plaintiff filed a
utang ako sa iyo, kulektahan ko yung may utang sa akin. case against only one. Practically he is collecting everything
from one debtor. But actually, the debtor being sued, is also
entitled to ask for 50% from the other debtor. So, he files a
I felt amused because what is the connection third-party complaint against the other debtor. What is the
between the account of C and D against B. Ibang istorya purpose of the third-party complaint? Contribution.
yan. That could not be a proper subject of a third-party
complaint because it is not contribution, indemnity,
subrogation or any other relief in respect of his opponent’s
claim. If you want, you file your own case separately. But you
2) Indemnity
cannot raise that as a third-party complaint because there is
no connection between my claim against you and your claim
against these people.
(1) The creditor filed a case against the surety only.
The principal debtor was not included. The liability of a surety
is similar to a solidary debtor. He is liable to pay the entire loan.
Pareho rin sa cross-claim. X files a case against A
But in reality, every centavo was enjoyed by the real debtor.
and B arising out of a loan. Sabi ni A: B, meron ka man ding
But the trouble is ako man ang gidemanda. And I will have to
utang sa akin no, kolektahin ko na lang din yung sa iyo. So,
pay the account. So, I will also file a third-party complaint
cross-claim. Di puwede. Because the cross-claim did not arise
against the debtor to return to me 100% whatever amount I will
out of the same transaction or occurrence. That is separate.
be paying the creditor. What do you call that? Indemnity.
That is between you. You cannot model the case against me
by invoking your other cases against other people. There will
be confusion. Magkakagulo, eh. So, take note of that.
Kanina contribution. Ito, indemnity. There is only a
slight difference. In contribution, I am only claiming from you
50% because tig-50 man tayo sa utang. Sa indemnity, I’m
RECAP
claiming 100% because I did not actually enjoy a single
centavo of the loan.

A third-party complaint as defined in Sec. 11 is a

claim that a defending party may with leave of court file
(2) You are sued by someone for damages arising
against a person not a party to the action called a third party
from a vehicular accident and you are covered by insurance.
defendant for contribution, indemnity, subrogation or any
Sa insurance policy, di ba may TPL (Third party liability). When
other relief in respect of his opponent’s claim. The example
you are covered by insurance, you can pass on the entire
that I cited last week was a creditor filing a case for collection
liability to the insurance company. So, if I am sued by the
only against, for example, one solidary debtor. There are two
plaintiff for damages and I want to pass everything to the
solidary debtors. He filed a case against only one . He was
insurance company, I will file a third-party complaint against
intending to collect the entire loan from one debtor which
the insurance company. And the purpose there is for
anyway is allowed under the law. If the solidary debtor who is
indemnification in respect of the plaintiff’s claim.
sued would like to claim for contribution from the other debtor
who is not there in the case, he should file a third-party
complaint against that debtor.

And take note that a defendant in a third-party
complaint becomes the plaintiff. And the third person
becomes the defendant. If you have a claim against
somebody who is already a co-defendant you have no
problem. All you have to do is file a cross-claim. But since the
other party is not a party to the case, you still have to drag him
to the case and the procedure is by way of a third-party
complaint.
Take note also that the law says with leave of court.
You cannot just file a third-party complaint against a third
person. You must seek the permission of the court. Unlike
cross-claims and counterclaims, the defendant does not need
leave of court. He will just file his answer with a counterclaim
or answer with cross-claim. But in a third-party complaint,
there must be a motion for leave of court.
3) Subrogation
What do you mean when you say you are
subrogated to my rights and obligation. It means you step into
my shoes. You take my place. You assume my rights and
obligations. Example: A, lessor and B, lessee. A owns a
property which he leased to B. Now, B subleased the property
to C. Meaning, yung inarkila ko, ipaarkila ko rin sa iba. Ipasa
ko ba. The lessee becomes the sublessor and C becomes the
sublessee. So, when you sublease the property, possession is
surrendered to C. Therefore, C takes over the property as if he
is the one who leased it.
Now, suppose the property which was leased was
damaged. And therefore the lessor would like to seek
damages for the destruction of the leased property. Sino ang
idemanda niya? He will file a case against B, the lessee. A will
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be the plaintiff. B will be the defendant. Because tayo ang
magkausap, eh. I leased the property to you. You have
bound yourself to take good care of the property. But in
reality, while that is the obligation of the lessee since he
subleased it to C, in effect, C became the possessor. And
therefore, by virtue of the sublease, C is supposed to take care
of the property which is the obligation of B. So B will file a third-
party complaint against C. So B becomes the third party
plaintiff and C becomes the third party defendant. Ang
problema ni B ipasa niya kay C. Because when B subleased
the property to C, C was subrogated to B’s rights and
obligations under the lease contract. So the purpose of the
third-party complaint is subrogation. You have to answer for
my liability because you took my place in the occupation of
the property.
4) Any other relief
This is very broad. A sold this land to B. A is the
vendor and B is the vendee. So B is now the owner or
possessor of the land. All of a sudden, X files a case against B
to recover the land because according to X, he is the real
owner of the land and therefore, he is entitled to take
possession of the land. But actually B bought the land from A.
And under the law on Sales, in selling a property, you warrant
that you are the owner. There is a warranty of every seller that
he owns the property. And here comes somebody claiming to
be the owner and he wants to drive me out. Eh, di isabit kita.
Binili ko sa iyo ito, eh. Sabi mo may-ari ka. So, I will file a third-
party complaint against you. What is the purpose of the third-
party complaint? To enforce the warranty of the vendor
under the law on Sales. So, this would fall under any other relief
with respect of his opponent’s claim. I bought the land from
you and now I am being driven out. Isauli mo ang pera ko.
That is to enforce his warranty as the seller.
Take note that the premise of a third-party complaint
is contribution, indemnity, subrogation, or any other relief in
respect of his opponent’s claim. That is the common
denominator. In respect of his opponent’s claim. What does
that mean? The third-party complaint must be related to the
main action. It must normally arise out of or is necessarily
connected with the transaction or occurrence of the main
action.
So, the third-party complaint cannot be a cause of
action which is totally unrelated to the case filed against you.
Example: I will file a case against A to collect a loan. Sabi ni
A: Meron man ding utang si B. So, I will file a case against B to
collect the loan. Sabi ni A: I will file a case against him para
makuha ko sa iyo ang pambayad mo naman sa akin. Ano?
Anong pakialam ko sa utang mo sa ibang tao? Meaning,
there is no connection between your loan to me and his loan
to you. You file another case. Huwag mong lubugin itong
kaso natin. So, it cannot be the subject matter of the third-
party complaint because it is not in respect of his opponent’s
claim.
That is why under the rules, a defendant cannot just
file a third-party complaint. He must file a motion? Why?
Because the original plaintiff may object to the third-party
complaint on the ground that there is no connection between
the case against a third-party complaint and the case I’ve
been filing against him. So pampatagal lang yan. Panlubog
sa kaso.
Tests to determine when third-party complaint is proper
That is why the SC in one case, laid down the tests to
determine the propriety of a third-party complaint. According
to the SC, in order for a third-party complaint to be proper, it
must pass any of the following tests. These tests were laid
down by the SC in the leading case of:
CAPAYAS vs. CFI of ALBAY
77 PHIL 181
There are four possible tests in determining when
a third-party complaint is proper:
1. If it arises out of the same transaction on which
plaintiff’s claim is based.
2. If the third-party’s claim, although arising out of
another contract or transaction is connected with
plaintiff’s claim.
3. If the third party defendant would be liable to
plaintiff’s claim against the original defendant although
the third party defendant’s liability arises out of another
transaction.
4. The third party defendant may assert any defense
which the third party plaintiff has or may have against
plaintiff’s claim.
1) If it arises out of the same transaction on
which plaintiff’s claim is based.
Example of this is solidary debtor. A and B signed a
promissory note in favor of X for P100T. Solidary. So the share
of A is P50T. The share of B is also P50T. X filed a case only
against A to collect the entire P100T which under the law on
obligations can be done, no. A can be made to shoulder the
liability of B. So, A filed also a third-party complaint against B
for contribution of P50T. Is the third-party complaint proper?
Yes, because it arises out of the same transaction on which
plaintiff’s claim is based.
2) If the third-party’s claim, although arising out
of another contract or transaction is connected
with plaintiff’s claim.
So, this is different from the first, no. Because in the
first test, the third-party complaint arises out of the same
transaction on which plaintiff’s claim is based. Ito naman it is
arising out of another contract or transaction but it is
connected with plaintiff’s claim.
The best example to this is the insurance case I cited
earlier. My vehicle is covered by a third-party liability (TPL)
insurance. meaning, kung makabangga ako, the insurance
company will be paying for that. As a matter of fact that is
mandatory under the law. If you own a vehicle, you cannot
register it without a TPL insurance. So, while I was driving my
car, I bumped another car. So, the owner of that car sued me
for damages. I will file a third-party complaint against my
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insurance company. Is the third party complaint proper? Yes,
it will meet the second test. My third party complaint arises out
of another transaction. Why am I being sued. The suit against
me is quasi-delict. My third-party complaint is based on an
insurance contract. So, it is not arising out of the same
transaction but my contract is precisely related to that. Why
am I being sued? Precisely to answer for my liability. So the
third-party complaint would be proper.
3) If the third party defendant would be liable to
plaintiff’s claim against the original defendant
although the third party defendant’s liability
arises out of another transaction.
A leased his property to B. B subleased the same
property to C. Therefore, C is now in possession and he is
suppose to take care of the property. In effect, C is
subrogated to the obligations of B to A. Since the property
was damaged, A the lessor sued B. And since the one in
possession is C, B filed a third party complaint against C. Is the
third party complaint proper? Yes, because it meets the third
possible test.
The third party defendant C would be liable to
plaintiff’s claim A. C will be liable to A for A’s claim against B
although the liability of C arises out of another transaction.
Because the liability of C to B arises out of the sublease
contract. But since the sublease contract is connected with
the lease contract, in effect, you took the place of B.
4) The third party defendant may assert any
defense which the third party plaintiff has or may
have against plaintiff’s claim.
B is the registered owner of a car. he sold the car to
A. A is now using the car. The trouble is A did not register the
same in the LTO. So, while A is the real owner, B is still the
registered owner. So is what you call the actual owner. One
day, while A was driving the car, he bumped the car of X.
And X, when he researched in the file in the LTO nakita niya
ang may-ari si B. So, sinong gidemanda ni X? Si B. And under
the law, the registered owner is always liable. Di naman akin
ito. Dugay naman gibaligya. therefore, B filed a third party
complaint against A. My golly, ikaw naman ang may-ari nito.
Ikaw pala ang nakabangga dito. And A admitted that he is
now the owner. Haharapin ko yan, sabi ni A. In other words, A
can assert any defense which B could have asserted.
Because the issue of who is negligent or not negligent is
between X and B. Since A is the real owner and the one
driving, A will directly fight the claim of X. If you reach that
kind of situation, then the third party complaint is proper.
because there is always a connection, eh. There is a
connection between what the main action says and what the
third party complaint is saying.
Now, if you meet any of these tests, the third-party
complaint is proper. Now, we will go to some very interesting
cases on third-party complaint. very instructive cases.
SAMALA vs. VICTOR
170 SCRA 453
A is a passenger of a jeep owned
by B. The jeep was bumped by a truck
owned by C causing injuries to A. A filed a
case against B for damages arising from
breach of contract of carriage. B claimed
that the one who is at fault was C. So, he
filed a third party complaint against C.
During the trial, the court found that B was
not the one at fault and that it was C. The
court held that C is directly liable to A. The
case filed against B was dismissed. So A
asked C to pay for the damages. Sabi ni C:
That is irregular. Why? A did not sue me.
Sino man ang gidemanda ni A? Di ba si B?
Si B gidemanda si C. Ang tama diyan C is
liable to B, B is liable to A. How come C is
being made directly liable to A when A did
not sue C but B. That was the first issue.
The question to be answered is
this: In a third party complaint, the third
party defendant should be liable to whom?
Is he liable to B or A? The SC said: Normally,
C is liable to B and B is liable to A. That is the
normal procedure. That is covered by the
term contribution, indemnity, subrogation in
respect of his opponent’s claim. But C can
be made directly liable to A. That is
covered by the phrase or any other relief in
respect of his opponent’s claim. Therefore, it
is possible for a third party defendant to be
directly liable to plaintiff without passing
anymore to the original defendant because
of that phrase. That is a very broad term.
The second objection raised by C
was: The claim of A against B is damages
arising from breach of contract of
transportation, culpa contractual. The third
party complaint of B against C is damages
arising from culpa aquiliana. How can C be
liable to A for culpa aquiliana when the
claim of A is culpa contractual? May a
third party defendant like C be liable to A
for damages based on quasi delict to
plaintiff when plaintiff’s original action
against defendant was based on culpa
contractual? That is the second issue.
And the SC said, yes. The purpose
of the rule is to avoid circuity of action and
to dispose of in one litigation the entire
subject matter arising from a particular set
of facts. It is immaterial that the third party
plaintiff asserts a cause of action against
the third party defendant on a theory
different from that asserted by the plaintiff
against the defendant. A defendant in a
counter action, like B, may join as third party
defendants those liable to him in tort for the
plaintiff’s claim against him or directly to the
plaintiff.
So, the purpose of this is to settle in one litigation
each other’s claim. So, puwede kang i-hold liable. Anyway
that is the ultimate end of the whole thing. So, why go around
the bush when you can finish in one litigation the entire
controversy between the three of them? So, that is a very
instructive case on third party complaint.
I want you to compare this next case with that of
Javier vs. IAC on compulsory counterclaims in criminal cases.
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 SHAFFER vs. RTC JUDGE of OLONGAPO CITY,
Br. 75 (OBSOLETE)
167 SCRA 386
The issue here was: Is there such a
thing as a third party complaint in a criminal
case?
Shaffer owns a car covered by a
TPL insurance. While he was driving his car,
he bumped another car causing serious
physical injuries to the driver of that car. The
injured owner of the other car filed a
criminal case against Shaffer for serious
physical injuries through reckless
imprudence. And the victim did not reserve
his right to file a separate civil action for
damages against Shaffer. In Criminal
Procedure, when there is no reservation, the
civil liability arising from the crime is deemed
impliedly instituted. Since Shaffer is covered
by an insurance policy, he filed a third party
complaint against the insurance company
to answer for the civil liability. The insurance
company filed a motion to dismiss the third
party complaint on the argument that the
third party complaint is entirely different
from Shaffer’s criminal liability in the criminal
case. If we will allow a third party complaint
in a criminal case, it will only clutter,
complicate and delay the criminal case.
Now, is the insurance company correct?
The SC said that the insurance
company is wrong. And the explanation is
simple which we all know. Based on basic
principles of law. An offense causes two
classes of injuries, the social injury and the
personal injury. Social injury to the people
of the Philippines and personal injury to the
private victim. In this case, the civil aspect
of the offense was impliedly instituted with
the criminal case. Shaffer may raise all
defenses available to him insofar as the
criminal and civil aspects of the case are
concerned. Shaffer’s claim of indemnity
against the insurance company arose from
the claim for damages by the offended
party in the criminal case. Therefore,
Shaffer’s claim against the insurance
company is related to the criminal case.
So, here is a criminal case where the accused was
allowed to file a third party complaint against the insurance
company which is not a party involved in the criminal case.
So, the ruling is similar to the case of Javier that there is such a
thing as a counterclaim in a criminal case. Now, as I said,
because of the ruling of the SC, in Cabaero vs. Cantos, we are
suspending the Javier doctrine because it creates more
problems. In effect, that ruling also applies to the case of
Shaffer. The SC said in the case of Javier:
Thus, the trial court should confine
itself to the criminal aspect and the possible
civil liability of the accused arising out of the
crime. The counterclaim and cross-claim
and third party complaint should be set
aside or refused cognizance without
prejudice to their filing in separate
proceedings at the proper time. Until there
are definitive rules of procedure to govern
the institution, prosecution and resolution of
the civil aspect, and the consequences and
the implications thereof impliedly instituted
in a criminal case, trial courts should limit
their jurisdiction to the civil liability of the
accused arising from the criminal case.
That is what exactly was what the insurance company was
claiming in the Shaffer case. That the trial court should not
allow the third party complaint because it will only clutter,
complicate and delay the criminal case. But sabi ng SC, no,
puwede. Now, it seems that the insurance argument is
correct. Shafer, in the meantime has to give way to the ruling
in Cabaero. For the moment, you cannot file a third party
complaint in a criminal case. So, what is law last year is no
longer the law now because of these recent decided cases.
CABAERO VS CANTOS
The Shaffer Ruling has to be set aside for the
meantime, because there is no such thing as third
party complaint in criminal cases now. In other
words, forget it in the meantime. Also, forget
counterclaims in criminal cases even if they arose out
of main action. This case refers to Javier on whether
or not there is such a thing as compulsory
counterclaim in criminal cases. SC said, wag muna, if
we will allow it in criminal cases, it will only
complicate the case. The attention might be
divested to counterclaims or cross claims or third
party complaints.
Ruling: The Trial Court should confine itself
to the criminal aspect and the possible civil liability
arising out of the crime. The counterclaim should be
set aside or refuse cognizance without prejudice to
their filing to their separate proceedings at the
proper time.
Now, we will go to another situation. Suppose A will
file a case against B to recover P150T damages against B. So,
RTC. Now, B is covered by an insurance policy. So B filed a
case against X & Co. for indemnity arising out of the collision.
But the maximum liability of X & Co. under the insurance
contract is only P50T which is supposed to be triable in the
MTC. Meaning, ang habol ni A kay B is P150T. Hinahabol ni B si
X for P50T. X filed a motion to dismiss because according to X
the third party complaint is not within the jurisdiction of the
RTC. The main action is filed in the RTC. And the third party
complaint which is only P50T is also filed there. Can the RTC
entertain the third party complaint which is only P50T?
REPUBLIC vs. CENTRAL SURETY
25 SCRA 641
The third party complaint need not
be within the jurisdiction of the court where
the principal action is pending. The reason
is that a third party complaint is merely a
continuation of and ancillary to the
principal action. And jurisdiction over the
principal suit embraces all incidental
matters arising therefrom and connected
therewith. If the RTC has jurisdiction over the
complaint, necessarily it has jurisdiction over
the third party complaint although the
amount claimed is only P100T or lower
because the third party complaint is only
incidental or ancillary.
Page 77 of 296

That is the same principle in compulsory
counterclaim, di ba? Remember? I will file a case against you
to recover a piece of land, accion publiciana. RTC. And then
ang habol mo sa akin for reimbursement for necessary
expense is P50T. Can the RTC entertain the compulsory
counterclaim? Yes, that is allowed under the rules specifically
under Sec. 7 because the compulsory counterclaim is merely
ancillary to the main action. Also, in the case of:
EASTERN ASSURANCE & SURETY CORP. vs.
CUI
105 SCRA 622
A third part complaint has to yield
to the jurisdiction and venue of the main
action.
Now, if there is such a thing as a third-party
complaint, obviously, there is also such a thing as a fourth
party complaint. Where the third party defendant becomes
the fourth party plaintiff. And there is a fourth party
defendant. And there is also such a thing as fifth party
complaint, etc., etc. And the obvious purpose of all these 4th,
5th, 6th party complaints is for contribution, indemnity,
subrogation or any other relief in respect of his opponent’s
claim. Of course, rarely, does it happen. I’ve seen a case
where the parties have gone as far as fourth party complaints.
So A vs. B, B vs. C, and C vs. D. But I have not seen so far a fifth
party complaint but theoretically, it is possible.
A’s car was bumped by B’s car from behind causing
damage to the vehicle of A. So A filed a complaint against B
for damages arising from the collision. Now, according to B,
the reason why his car bumped the rear portion of A’s vehicle
was because he was also bumped by C from behind.
Binunggo niya ako kaya nabunggo ko rin si A. Si B will file a
third party complaint against C throwing the liability to C.
Now suppose C says that it happened because D bumped
me from behind also. So, C will file a fourth party complaint
against D. And according to D, the reason why it happened is
because E bumped me from behind and therefore files a fifth
party complaint against E. Meaning, pasahan, ba. They will
throw the liability to the one who did it. That is a good
hypothetical example of how a fourth, fifth, sixth party
complaint can come into play.
Sec. 12. Bringing new parties. - When the
presence of parties other than those to the original
action is required for the granting of complete relief in
the determination of a counterclaim or cross-claim, the
court shall order them to be brought in as defendants, if
jurisdiction over them can be obtained.
Meaning, to try a counterclaim or cross-claim, a new
party is dragged into the case. An instance where a new
party is brought in as defendant for the granting of complete
relief in the determination of a counterclaim or a cross-claim
was the case of:
SAPUGAY vs. CA
183 SCRA 464
The action started as a complaint
filed by Mobil Philippines against one of its
gasoline dealers, Joel Lina Sapugay.
Sapugay filed a counterclaim against Mobil.
But in the counterclaim of Sapugay against
Mobil, he also dragged into the
counterclaim the manager, a certain
Cardenas. So sinabit niya yung manager.
Can you file a counterclaim against
somebody who is not even a plaintiff? That
was the question. Because as defined by
the law, a counterclaim is filed by the
defendant against the plaintiff. Paano si
Cardenas, hindi naman siya plaintiff? The
trial court allowed it so the case went to the
SC. Was the inclusion of Cardenas in the
counterclaim proper?
And the SC ruled: The general rule
is that a defendant cannot by a
counterclaim bring into the action any
claim against persons other than the
plaintiff. That is the general rule but it admits
of an exception. And the exception cited
was this section. The court can bring into the
case a third party if it is necessary for the
adjudication of a counterclaim or a cross-
claim. So the court said: The inclusion
therefore of Cardenas in defendant’s
counterclaim is sanctioned by the rules
particularly by Sec. 12.
So, that is a clear illustration of how to bring to the
case a person not originally a party for the purpose of
adjudicating a counterclaim or a cross-claim. The case of
Sapugay, however, should not be confused with the later case
of:
CHAVEZ vs. SANDIGANBAYAN
193 SCRA 282
The case started because of those
PCGG cases where cases are filed by the
government against former Pres. Marcos, his
relatives, friends and cronies for recovery of
alleged ill-gotten wealth. The cases were
instituted by the government through former
Solicitor General Frank Chavez against so
many people. In one of these cases, one of
the defendants was Sen. Juan Ponce Enrile.
He was a part of the Marcos cabinet so he
was one of the defendants. In these PCGG
cases before the Sandiganbayan, Enrile
filed an answer with a counterclaim against
the PCGG. Sabi niya, this case filed against
him is a harassment suit which was
instigated by Chavez, the lawyer for the
government. So, in his counterclaim, he
included Chavez. Siguro, the lawyers of
Enrile knew about the case of Sapugay
where you can file a counterclaim against
someone who is not a party. Because in this
case, the party was the PCGG, the
government. Chavez was not a party, he
was only the lawyer for the plaintiff. So the
issue is may a defendant in his counterclaim
implead plaintiff’s lawyer for allegedly
instigating the harassment suit by plaintiff
against him. And the Sandiganbayan said
yes. So, Chavez went to the SC.
The SC said no. We cannot allow
that. Because if you will include the lawyer
in the case that he is handling, he will be
Page 78 of 296
 busy defending himself. He can no longer
defend his client. Very mischievous, ba. So
the lawyer should not be made a
defendant in the very case which he is
handling.
This case should not be confused with Sapugay because in
that case, he was not a lawyer. He was the manager of Mobil.
To allow a counterclaim against a lawyer who files a
complaint for his client who is merely their representative in
court and not a plaintiff or complainant in the case would
lead to mischievous consequences. A lawyer owes his client
entire devotion to his genuine interest, warm zeal in the
maintenance and defense of his rights and the exertion of his
utmost learning and ability. That is legal ethics, no. A lawyer
cannot properly attend to his duties towards his client if in the
same case he is kept busy defending himself.
Now do you mean to tell me that a lawyer is immune
from suit if he files unfounded, baseless civil cases? The SC said
no. We do not suggest that a lawyer enjoys a special
immunity from damage suit. however, when he acts in the
name of a client, he should not be sued on a counterclaim in
the very same case he has filed only as counsel and not as a
party. Any claim for alleged damages or other causes of
action should be filed in an entirely separate and distinct civil
action.
Sec. 13. Answer to third (fourth, etc.) party
complaint. - A third (fourth, etc.)-party defendant
may allege in his answer his defenses,
counterclaims or cross-claims, including such
defenses that the third (fourth, etc.)-party plaintiff
may have against the original plaintiff in respect
of the latter’s claim against the third-party plaintiff.
(n)
Well, this is one of the tests to determine the propriety
of a third party complaint. Whether the third party defendant
can directly controvert the main action. A vs. B. B vs. C. As
we said, normally, C defends himself against B. And B defends
himself against A. But is it possible for C to directly defend
himself against the complaint of A? Yes, puwedeng
deretsahan, eh. As a matter of fact, the new rule says C can
even file a counterclaim directly against the original plaintiff.
Because normally, ang counterclaim mo is against B not
against A. That is to show the closeness, ba. That the
counterclaim is only part of the case filed by A. So, puwede
kong deretsuhin yan. Labanan kita.
Like what happened in the case I cited. The car
owed by B was sold to C and C never registered the
transaction. Sa records, si B pa rin but the one driving is C.
Nabanggaan ang kotse ni A. When A went to the LTO,
according to the records, ang may-ari si B. So gidemanda
niya si B. B later filed a third party complaint against C. But C
can frontally dispute the claim of A that there was negligence
on his part. So mano-mano sila. In other words, sila na ang
magbakbakan. That is why in the 1995 case of:
SINGAPORE AIRLINES LTD vs. CA
243 SCRA 143
Here is a case where C is fighting directly the
original plaintiff. Normally, if C is sued in a third party
complaint by B, which complaint should C answer? He
should answer the third party complaint. B will answer
the complaint of A. C will answer the third party
complaint of B. That is the normal procedure. But
according to the SC in this case: If C is directly fighting
A, he should also answer the complaint of A. So, C
should answer the third party complaint of B and C
should also answer the complaint of A. Anyway you
are directly fighting him now. A third party complaint
involves an action separate and distinct from although
related to the main complaint. A third party defendant
who feels aggrieved by some allegations in the main
complaint should aside from answering the third party
complaint also answer the main complaint. In effect,
he should answer the third party complaint and the
main complaint.
End Rule 7
PARTS OF A PLEADING
Parts of a pleading. How does a pleading look like.
This will become clearer in the subject of Legal Forms in third
year, second semester where a student is asked to prepare or
draft a complaint, answer or a contract like a contract of
mortgage and the like. That is a bar subject. That is the last
subject given on the fourth Sunday. The last subject in the bar
is Legal Ethics and Practical Exercises. Well you know Legal
Ethics. Tapos, may mga tanong na: X leased his apartment to
B for one year to pay P1,000 a month and B has not paid his
rental for already four months. Demand has been made but B
refused to pay. Prepare a complaint for unlawful detainer.
Ganyang tipo ang mga tanong. You must know the elements,
how a pleading looks like. So, that is what we are going to
study here.
Sec. 1. Caption. - The caption sets forth
the name of the court, the title of the action, and
the docket number if assigned.
The title of the action indicates the
names of the parties. They shall be named in the
original complaint or petition; but in subsequent
pleadings, it shall be sufficient if the name of the
first party on each side be stated with an
appropriate indication when there are other
parties.
The names of all parties in an
appeal shall also be indicated in a notice of
appeal and record on appeal. (Secs. 5 & 6, Rule
41)
Their respective participation in the
case shall be indicated. (1a, 2a)
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How does a pleading look like? The caption sets forth the
name of the court, the title of the action and the docket
number assigned.
Republic of the Philippines
Regional Trial Court
Davao City
11th Judicial Region
Br. 1
Juan dela Cruz, For: Specific Performance
plaintiff Civil Case No. 1234
vs.
Pedro Bautista,
defendant.
So, more or less, that is what you call caption and title. Now,
suppose there are 20 plaintiffs and 20 defendants. Should all
their names appear in the title of the case? Yes, in so far as
the complaint is concerned. So, posible diyan ang caption
and title mo three pages na. But, in subsequent pleadings,
there is no need to copy everything. You only write the first
name of plaintiff and defendant and followed by the word et
al. Meaning, marami sila. Because it becomes tedious to
copy everything in subsequent pleadings. So A, et al, plaintiffs
vs. X, et al, defendants. That will suffice. That is what the law
says. They shall be named in the original complaint or
petitions. But in subsequent pleadings, it shall be sufficient if
the name of the first party on each side be stated with an
appropriate indication when there are other parties. So that is
the exception to the rule that the pleading must include the
names of all the parties.
Is there any other exception? Is there a possibility
that even in a complaint, the first pleading, the names of all
the parties are not included as an exception? Yes, in a class
suit. How can I name everybody? Class suit, eh. In a class suit,
you only name those who are present. There is no need to
name all. Or, another exception, when you are suing an
unknown defendant. How can you name him if he is
unknown? That is under Sec. 14, Rule 3. That you can file a
case against an unknown defendant.
Another exception: Under Rule 3, Sec. 15, when two
or more persons transact business under a name which has no
juridical personality. They can be sued by using the name by
which they transact business. Another exception laid down by
the SC is when a public official is being sued in his official
capacity. Even if you will not name him, if you state his title, his
official designation in the caption of the case, that is sufficient.
Plaintiff will not name him Mayor Duterte and that is allowed.
Anyway, we already know who is the mayor. A, plaintiff vs.
Hon. City Mayor of Davao City, defendant
In sum, these are the instances where you need not
name the parties:
1. In subsequent pleadings, it shall be
sufficient if the name of the first party on
each side be stated with an appropriate
indication when there are other parties
2. Class suit (Sec. 12, Rule 3)
3. Unknown defendant (Sec. 14, Rule 3)
4. When two or more persons transact
business under a name which has no
juridical personality (Sec. 15, Rule 3)
5. When a public official is being sued in
his official capacity
Sec. 2. The body. - The body of the
pleading sets forth its designation, the allegations
of the party’s claims or defenses, the relief prayed
for, and the date of the pleading. (n)
So, that is the body, puwedeng sa Complaint, or
Answer, whatever it is. Tapos, nandiyan na yang mga
allegations mo. Then, at the end, the relief which we call
Prayer. What is it that you are asking the court? It is
respectfully prayed that judgment be rendered ordering
defendant to pay plaintiff his loan of P1M with interest of 12%
p.a. from this date until fully paid. Yan ang tinatawag na relief.
Then, you end up with the date of the pleading, Davao City,
Philippines, December 10, 1997. Or, if the pleading is intended
for Manila, Davao City (for Manila) Philippines.
a) Paragraphs. - the allegations in the body of a
pleading shall be divided into paragraphs so
numbered as to be readily identified, each of which
shall contain a statement of a single set of
circumstances so far as that can be done with
convenience. A paragraph may be referred to by its
number in all succeeding pleadings. (3a)
Yes, a pleading is divided into paragraphs so
numbered as to be readily identified. Normally, a complaint
starts: Plaintiff, thru counsel, respectfully alleges that x x x.
Tapos first paragraph. The first paragraph is normally the
statement of the parties and their addresses which is required
under Rule 6 where a complaint must state the names.
1. Plaintiff A, Juan dela Cruz is of legal
age, a resident of Davao City whereas
defendant Pedro Bautista, is also of legal
age and a resident of Davao City.
2. On such and such a date, defendant
secured a loan from plaintiff in the
amount of so much payable on this
date.
3. The loan is now overdue but
defendant still refused to pay.
So, kada paragraph, may numero because in
subsequent pleadings, pag-sagot ng Answer, he will just refer.
Ituturo niya ang paragraph. Yan. I admit that. Ito, I do not
admit this. So, for ready reference, he will just refer to the
number in accordance with the law which says paragraphs so
numbered as to be readily identified each of which shall
contain a statement of a single set of circumstances so far as
that can be done with convenience.
Page 80 of 296
 The trouble with some people is that they do not
know how to make paragraphs. Even in the law school. Pag-
umpisa niyan, hanggang katapusan, ang haba-haba. I think
the paragraphing is learned in basic high school education.
One paragraph, one idea. Hindi puwede haluhaluin mo yan.
That is why you do not like to read some books because
pagtingin mo heavy reading, ba. Bakit masyadong maitim
ito? Puro linya. Pero yung may spacing, para bang masarap
basahin ba. It is pleasing to the eyes. Just like your notebook.
If a notebook of a law student is pagbasa mo niyan heavy
reading, dere-derecho hanggang katapusan ang
paragraphing, masakit sa mata. Pero pagmarunong ka mag-
paragraph, it is pleasing to the eyes. Remember in
examination in the law school or in the bar. Lalo na sa bar,
mga 4,000 examinees yan. You make it comfortable for the
examiner. Do not punish him. If you punish him, he will
already be prejudiced against you. So the guide is one idea,
one paragraph. Mas maiksi na sentence, mas masarap
basahin. Ganyan din sa pleadings, pareho.
(b)Headings. - When two or more causes of action
are joined, the statement of the first shall be
prefaced by the words “First cause of action”, of the
second by “second cause of action,” and so on for
the others.
When one or more paragraphs in
the answer are addressed to one of the several
causes of action in the complaint, they shall be
prefaced by the words “answer to the first cause of
action” or “answer to the second cause of action”
and so on; and when one or more paragraphs of
the answer are address to several causes of action,
they shall be prefaced by words to that effect. (4)
Now, this is related to Rule 2, Joinder of Causes of
Action. Can you file one complaint embodying two or more
causes of action? Yes, we’ve already learned that. For
example, A wants to file a case against B to collect three
unpaid promissory notes. So, there are three causes of action.
The lawyer of A decided to file only one complaint collecting
the three promissory notes. Now, how should he prepare the
complaint containing the three promissory notes? Would you
say: (1) Defendant secured a loan five years ago, and then
another loan, four years ago, and then another loan three
years ago. Magulo, di ba? Samok. So, this is how it goes:
Plaintiff respectfully alleges:1. that he is of legal age x x x. FIRST
CAUSE OF ACTION: In 1994, there was a loan secured
amounting to so much at hindi pa bayad hanggang ngayon.
SECOND CAUSE OF ACTION: In 1995, there was a second loan
etc, etc, became payable and is not paid. THIRD CAUSE OF
ACTION, etc. In other words, hiwa-hiwalayin mo. You indicate
your different causes of action. That is how you prepare your
complaint. Ang defendant naman, ang sagot niya:
ANSWER: ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x, ANSWER TO
THE THIRD CAUSE OF ACTION x x x.
So, more or less that is what par. (b) is all about. Do
not lump them together in one paragraph. Otherwise, samok
eh. Even in trial, pag-present mo ng exhibit, you might get
confused because pinagdikit-dikit mo all the three causes of
action. But with this one, the presentation is clearer, the
outline is clearer and it is more scientifically arranged than
joining them in one story.
(c)Relief.- The pleading shall specify the relief
sought, but it may add a general prayer for such
further or other relief as may be deemed just or
equitable. (3a, R6)
After nasabi mo na ang allegations, normally the last
portion is prayer or relief: Wherefore, plaintiff prays for
judgment ordering defendant on the first cause of action to
pay him P50T with interest etc. on the second cause of action,
to pay him the loan of P70T, on the third cause of action, etc.
Meaning, what is it that you are asking the court? Kung
unlawful detainer, to eject defendant from plaintiff’s
apartment and to pay the back rentals plus attorney’s fees of
so much. On damages naman, to indemnify plaintiff for
actual, moral damages amounting to P1M. So, what is it that
you are asking the court to give you? That is called the relief
or the prayer.
And as a matter of fact, the law says the pleading
may add a general prayer for such further or other relief as
may be deemed just or equitable. Normally the lawyer adds
that. It is respectfully prayed that the court will render
judgment ordering defendant to do this. Tapos, may pahabol
na last paragraph, tinatawag na general prayer: Plaintiff
prays for such further or other relief which the court may be
deemed just or equitable. What it is saying is: Your honor after
trial please render a decision awarding to plaintiff ito, ito, ito.
Kung meron ka pang gustong ibigay, okay lang. In other
words, if the court wants to give more, by all means. That is
the general prayer.
That is why they say one of the most pious people are
the lawyers. Because everytime they file something to be filed
in court, there is always a prayer. Wherefore, it is respectfully
prayed x x x. Lahat may dasal. But they are praying to the
judge. They are not praying to God. Yan.
Is the prayer part of the cause of the action? Well, it
is part of the complaint or the answer but it is not part of the
cause of action. The causes of action yung mga what you
said before the prayer. The four elements of the causes of
action must be reflected in your story. But according to the
SC, the prayer could guide the court on what is the nature of
the cause of action. I repeat, it is not part of the cause of
action but it can guide the court in determining the nature of
the cause of action.
Example, an action is filed by A against B for
rescission of contract. Is that a real action or a personal
action? Well, normally it is a personal action. But the prayer
says: Wherefore it is respectfully prayed that after trial the
court should render judgment rescinding the contract of sale
between plaintiff and defendant and to return the property to
plaintiff. Recovery pala of property ito. So, in effect, the action
is really real action.
(d)Date.- Every pleading shall
be dated. (n)
Sec. 3. Signature and Address - Every pleading
must be designed by the party or counsel
representing him, stating in either case his address
which should not be a post office box.
Normally, if the party is represented by a lawyer, only
the lawyer signs. The signature of the party is no longer
required. But if the party is not represented by a lawyer,
maybe he files his own complaint, then he himself should sign
it. Either way, it should contain the address of the party or the
lawyer. Signed, Atty. dela Cruz, this building, Davao City.
Page 81 of 296
Ganyan yan. But under the new rules, it is now specific. The
lawyer is not allowed to use a PO box.
I am just wondering why the new rules prohibit the
use of the PO box, especially by a lawyer. But I think the
reason is if it a PO box, there is no way to determine the exact
day when the lawyer got the letter from the PO box. But if it is
served to his office, the exact date can easily be determined.
I think that is the only reason. Before I met a situation which
was worse. The lawyer filed a motion or a pleading stating
only his telephone number. My golly, that is worse. How can I
send my reply? By telephone also? In other words, I will call
him up. Let us go to the second paragraph.
Implied Certification in a Pleading
The signature of counsel
constitutes a certificate by him that he
has read the pleading; that to the best to
his knowledge, information, and belief
there is good ground to support it; and
that it is not interposed for delay. (Section
3, 2nd pаr)
This is called IMPLIED CERTIFICATION in a PLEADING.
That was once asked in the bar. What do you understand by
implied certification in a pleading? It means that when a
lawyer signs a pleading, he is certifying that he has read the
pleading and to the best of his knowledge and belief, there is
a good ground to support it and that it is not interposed for
delay. Legal Ethics, ba. When you file a pleading or
complaint, at least you are of the honest belief that there is a
cause of action.
Or, if you are the defendant filing an answer for the
defense, you are of the honest belief that there is a valid
defense. Because if there is no valid defense, because you
are just making your answer inventing your defense, then it is
interposed for delay. And one of the lines in the Lawyer’s Oath
goes: I will delay no man for money or malice. That is one of a
lawyer’s sworn duty. Now, of course the law does not say you
should win or that your defense is valid. Because after trial it
may be found out that your defense is false. That is not the
point.
What it means is when you signed it, when you
prepared your pleading, to the best of your knowledge
information and belief there is a defense. That is what you
believe honestly. Because you may turn out to be wrong. In
the same manner that your cause of action may be a false
cause of action. At least the lawyer was in good faith. Hindi
yung alam niya at the start talo na. Kung alam mong talo,
why are you filing it? And why are you preparing a defense na
alam mong wala. That is practically unethical. That is what it
means. Let us go to Sec 5, third paragraph.
An unsigned pleading produces no
legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied
if it shall appear that the same was due to mere
inadvertence and not intended for delay.
Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of his
Rule, or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a
change of his address, shall be subject to
appropriate disciplinary action. (5a)
The new rules now emphasizes that if a pleading is
not signed, it is as if there is no pleading. It produces no effect.
Suppose, it was filed in court by mistake. The lawyer signed it
but actually wala pala. That is not the situation contemplated
by law. Because the law says the court may, in its discretion,
allow such deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for
delay.
But a lawyer who deliberately files an unsigned
pleading or signs a pleading in violation of these rules, like he
knows that there is no defense but he just prepares an answer
or alleges scandalous or indecent matter therein, which should
not be done, or fails to promptly report to the court a change
of his address, he shall be subject to appropriate disciplinary
action. So, that is part of legal ethics.
What is new here is that the lawyer is mandated that
when he changes his address to report to the court so that we
will know very well where to mail. Because there are many
lawyers na kambiyo-kambiyo ng address, hindi naman
magsabi. When they filed the original pleading, ito ang
address. Tapos, nagkambiyo ng address without telling the
court. So, everything is still sent to his original address and
everything goes back to the sender. In other words, it causes
a lot of delay. So, if you are a lawyer and you move, you must
send notices to the court and in all your cases, copy furnish the
opposing counsel. Otherwise, the lawyer will be subjected to
disciplinary action.
Verified pleadings
Sec. 4. Verification.- Except when
otherwise specifi-cally required by law or rule,
pleadings need not be under oath, verified or
accompanied by affidavit. (5)
A pleading is verified by an
affidavit that the affiant has read the pleading
and that the allegations therein are true and
correct of his knowledge and belief.
A pleading required to be verified
which contains a verification based on
“information and belief,” or upon “knowledge,
information and belief,” or lacks a proper
verification, shall be treated as an unsigned
pleading. (6a)
What do you mean by verification of a pleading? It
simply means that the party will certify that the allegations in
his pleading are true and correct and it will be under oath.
That is what you call a verified pleading. How is it worded?
Normally, ganito yan: Complaint, then you are stating your
cause of action. Or, Answer where you are stating your
defenses. Tapos, below:
I, Juan dela Cruz, of legal age,
married, and a resident of Davao City, after
being sworn in accordance with law, do
hereby depose and say
1. That I am the plaintiff in this
case.
2. I have caused the
preparation of this complaint.
3. I have read the allegations
and they are true and correct
to my own knowledge.
Signed
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Affiant
Subscribed and sworn to before
me this 11th day of December, in the City of
Davao, Philippines.
Notary Public
So, it is under oath. Now, what is the purpose of a
verified pleading? To insure good faith. Bakit good faith?
Because if the allegations turn out to be false, what is the risk?
There is a risk of a criminal case for perjury for executing a false
affidavit. If the pleading is not under oath, and the allegations
turn out to be false, there is no perjury because there is no
sworn statement. That is the purpose.
How do you verify a pleading? According to the
rules, you must state that the allegations therein are true and
correct of your own knowledge and belief. Under the ‘64
Rules wala man yang belief ba. It says true and correct of my
own knowledge. Suppose he will say, the allegations are
based on information and belief, or, they are true and correct
based on my knowledge, information, and belief, then the
verification is improper. Because the third paragraph says if
the verification says that the allegations are true and correct
based on your information and belief or upon knowledge,
information and belief, then the verification is improper. Kasi
pag-sinabi mong information and belief, then it turns out na
mali pala, sorry ha? False pala. Akala ko totoo, eh. Yan ang
paniwala ko. In other words, makalusot, ba. That was what I
was told. Information. So, meron kang lusot. Pero pag on my
own knowledge, wala kang lusot. So, you have to say it is
based on your own knowledge. Kung information and belief,
hindi puwede.
I was wondering why the new rules say in the second
paragraph: A pleading is verified by an affidavit that the
affiant has read the pleading and that the allegations therein
are true and correct of his knowledge and belief. In other
words, I do not understand why they added the words and
belief. Wala man yan sa original. Because if you say
knowledge, information ang belief, that is improper. But if you
say knowledge and belief, you remove the word information,
puwede na, eh. In other words, belief pa rin.
I was asking one of the members of the committee
which drafted the new rules. Bakit pa nakalagay ang belief?
And this is what he said and we had the same thing in mind.
Sometimes, in petitions before the higher court, the lawyer
prepares the petitions based only on documents submitted to
him. And sometimes, siya na ang naga-verify. Instead of the
client, the lawyer will be the one to say: the allegations are
true and correct based on my knowledge and belief. I
believe because it is based on the documents submitted to
me. That is the reason behind that. Pero the way it is worded
in the rules, hindi klaro, ba. But definitely, you must say to my
own knowledge although now knowledge and belief will do.
Now, what happens if a pleading is supposed to be
verified but it was filed without any verification. What is the
effect? Is the defect fatal? The SC has already ruled that the
defect is merely formal and you don’t have to dismiss the
complaint outright. It can be cured by amendment. It is a
formal defect. It is not really a jurisdictional defect.
And the last point before we leave this section. Must
every pleading be verified? Is it necessary that everytime you
file a pleading in court - a complaint, answer, reply,
counterclaim, there must be a verification? What does the first
paragraph say? Except when otherwise specifically required
by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit. No, it is not necessary, except
when the law or rule require it. So, verification is the exception
rather than the rule.
That was one of the questions asked in the 1995 bar
examinations. What pleadings require verification? In other
words, it will practically require the candidate to scan the
entire rules. They are many and you can find them scattered
in the rules. In order to answer the question, you must have a
good grasp of the entire rules. So, as we proceed, including
Provisional Remedies and Special Civil Actions, you will meet
them one by one. Hiwa-hiwalay, eh. I think if you can give
five, puwede na yan sa examiner. Actually, there are more
than five. If you give at least five, then the examiner will think:
Ah, he knows.
There was a student before who asked me. Dean, if
the law requires a pleading to be verified and it is not verified,
the pleading is formally defective. I said yes. But he went on:
Suppose a pleading need not be verified and I verify it, what is
the effect. No effect, I said. The verification is a surplusage.
So, he concluded: Therefore, it is a better policy to verify all
pleadings. Because if it should be verified and I do not verify, it
is defective. If verification is not required and it is verified, no
harm. So I better verify everything. And I said, you can do
that but there are two things that you have to watch if you do
that. The first point is that every judge and lawyer will know
that you do not know your Rules of Court. Because if you are
a lawyer, you should know what pleading requires verification
and what does not. So, kung i-verify mo lahat, halata ka na
hindi mo alam. The second point is: What if the allegations
turn out to be false? Ipapriso mo yung kliyente mo because of
perjury? That is the effect.
Sec.5. Certification against forum shopping.-- The
plaintiff or the principal party shall certify under
oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously
filed therewith:
a)that he has not theretofore commence any
action or filed any claim involving the same issues
in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other
action or claim is pending therein;
b)if there is such other pending action or claim, a
complete statement of the status thereof; and
c)if he should thereafter learn that the same or
similar action or claim has been filed or pending,
he shall report that fact within (5) days therefrom
the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the
foregoing requirements shall not be curable by
mere amendment of the complaint or other
initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after
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 hearing. The submission of a false certification or
non-compliance with any of the undertakings
therein, shall constitute indirect contempt of court,
without the prejudice to the corresponding
administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a
cause for administrative sanctions. (n)
This is a new provision not found in the 64 Rules. But
the requirement of a certification of against forum shopping
actually has been in effect for the past three or four years. This
used to be found in SC Circular 04-94 and now it is
incorporated in the new rules. Forum shopping, as we have
learned is when you file identical cases before two or more
courts or tribunal hoping that you can obtain a favorable
action in at least one of them. That is totally prohibited. That is
contemptuous. So, SC Circular 04-94 is now Sec. 5 of Rule 7,
New Rules of Civil Procedure. So, everytime you file a
complaint in any court, RTC or MTC, you must append to the
pleading or complaint a certification under oath that you
have not commenced any action or filed a complaint
involving the same issues in any court, etc. That there is no
such other pending action or claim. If thereafter you should
learn that the same or similar action or claim has been filed or
is pending, you will report that fact within five (5) therefrom to
the court, x x x. Meaning, you must certify na wala. If it turns
out na meron pala, you will report to the court of its existence.
That is a mandatory requirement for every complaint.
And the law says the plaintiff and the principal party
shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief. It is not only required for
complaints but for other initiatory pleadings asserting a claim
for relief. What are other initiatory pleadings asserting a claim
for relief? These are counterclaim, cross-claim and third-party
complaints. So, even if the defendant files an answer and the
answer contains a counterclaim, the answer must also contain
a certification against non-forum shopping.
What will happen if a party fails to comply with this
mandatory requirement? The next paragraph says: Failure to
comply with the foregoing requirements shall not be curable
by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion
and after hearing. The submission of a false certification or
non-compliance with any of the undertakings therein, shall
constitute indirect contempt of court, without the prejudice to
the corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful and
deliberate forum shopping, the same shall be ground for
summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions. If a
complaint or other initiatory pleading does not contain a
certification against forum shopping, that is a ground for
outright dismissal of your complaint. And if there is a
certification and your certification turns out to be false, that is
a ground for disciplinary action, criminal action administrative
action. There is actually perjury.
Now, halimbawa, nalimutan ko. I filed a complaint
without the certification against forum-shopping. The other
party challenged my complaint. So, I will amend my
complaint and I will already append the certification. Is the
defect cured? What is the first sentence? Failure to comply
with the foregoing requirement shall not be curable by mere
amendment of the complaint or other initiatory pleading but
shall be the cause for the dismissal of the case without
prejudice x x x. Meaning, the case will be dismissed without
prejudice to your filing it again. So, if you verify it, you already
cured it and you can re-file it. Unless otherwise provided upon
motion or after hearing. Meaning, it is discretionary for the
court. Puwede kang pagbigyan. Sige, you amend it instead
of our dismissing it. But don’t do that again. Yan. So, if you will
amend, hindi automatic na cured na. The court may still
dismiss it.
And this ruling was taken by the court from the SC
Circular 04-94 and applied in the 1995 case of:
KAVINTA vs. CASTILLO, JR.
249 SCRA 604
The mere submission of a
certification under Adm. Circular No. 04-94
after the filing of a motion to dismiss on the
ground of non-compliance thereof does
not ipso facto operate as a substantial
compliance. So, if you amend your
pleading when it has already been
challenged, it does not operate as a
substantial compliance. Otherwise the
circular would lose its value or efficacy. It is
up for the court to determine whether to
give you a chance or not. But you cannot
claim that it is automatically cured.
End of Rule 7
Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1. In general. - Every pleading shall contain in
a methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere
evidentiary facts. (1)
If a defense relied on is based on
law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely
stated. (n)
What does a pleading allege? What facts should be
alleged in a pleading? Whether you are talking of a
complaint or an answer, it’s the same. The law says you must
allege the ultimate facts on which you rely for your claim or
defense as the case may be omitting the statement of mere
evidentiary facts. You must state the ultimate facts but you
should not state the evidentiary facts.
Ultimate facts vs. Evidentiary facts
In the bar, it was asked: Distinguish ultimate facts
from evidentiary facts. A fact is ultimate if it is essential to your
cause of action or defense. And the next question is how do
you determine whether it is essential or not essential? The SC
said a fact is essential if to delete it from the pleading would
make the statement of your cause of action or defense
incomplete. By deleting it, the statement of your cause of
action becomes incomplete, then it must be an ultimate fact.
Pagtinanggal mo, wala ka ng cause of action. But if you
delete it there is still a cause of action, then it is not an ultimate
fact. That is the test.
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 And you know very well that there are four essential
elements of a cause of action. The statement of the right, the
statement of the obligation, violation and damage. Read any
kind of complaint, collection of a loan to forcible entry, kahit
ano, you prepare the complaint and you tell your story. In a
paragraph, 20 paragraphs, perhaps. Yan bang 20
paragraphs, importante ba lahat? You remove one
paragraph, do you think the four elements of your cause of
action are still there? Andiyan pa man. Then the paragraph
that you removed is not a statement of ultimate facts.
Tanggalin mo pa ang isang paragraph. Does it still state the
cause of action? Then, it is still not a statement of the ultimate
facts. They may be evidentiary facts. Tapos you remove pa
further. You end up with say four paragraphs na lang. Sixteen
paragraphs have been deleted. And it is still a complete story,
then what you removed are actually useless paragraphs in
your pleading. Tapos, tanggal pa tayo. Pero pagtinanggal
pa natin, wala na tayong kaso. So, you cannot remove it.
Then it must be a statement of ultimate facts. That is the test.
Now what do you mean by evidentiary facts?
Evidentiary facts are facts which are intended to establish the
ultimate facts. They are proper for presentation during the trial
but they should not be alleged in the pleading. Because
evidentiary facts have no place in a pleading.
I will file a case against you over a piece of land. My
position is that I have been a possessor of this land
continuously say, for 30 years. I have been in continuous
possession of this land for 30 years in the concept of an owner.
I will allege that I took possession of the property as early as
1967. Ito ang sasabihin ko sa complaint: Plaintiff has been in
possession of this land continuously for thirty years as may be
borne out by the following: When he occupied the property
in 1967, he planted 10 coconut trees. Then in 1968, he planted
20 coconut trees. In 1969, he planted mango trees. In 1970,
he planted camote, etc. And then he has been paying taxes
since 1967. In other words, I am going to recite everything that
I did for the past 30 years to really prove that I have been
there for 30 years. If you put that in your complaint, your
complaint may reach 100 pages.
So, ano ang ultimate fact? Just say I have been in
continuous possession of the property for 30 years. That is the
ultimate fact. I do not have to recite what I have done for the
past 30 years. Those are evidentiary facts. But how can the
court be convinced of my claim? How about the
improvements, the payment of taxes - these are the best
evidence to convince the court? Doon mo na ilabas yan
during the trial. Because your lawyer will ask you there: Mr.
Plaintiff, when did you occupy the property? Mga 30 years
ago. 1967 pa. When you occupied the property, for the first
time in 1967, what did you do there? Well, I planted coconut
trees. Ano pa? So, i-istorya mo lahat. Those things should be
brought in court. Otherwise, your pleading becomes
kilometric and nobody will read it. That is what you call
statements of evidentiary facts.
So, the statement that you have been in possession
of the property for 30 years is a statement of ultimate fact. But
the manner, your improvements, what you have been doing
for the past 30 years are evidentiary facts which are intended
to prove the ultimate facts and which should not be stated in
the pleading.
Collection case. The ultimate fact there is a
statement that the obligation fell due and the defendant
refused to pay. You do not say: The obligation fell due and I
called him up by telephone, tapos sabi niya bukas na lang.
Then I called him up again. Tomorrow na lang. Then I wrote
him a letter. He promised to pay on another date. Hindi mo
na ikuwento yan. Sa court na yan. Pag-sinabi mo he refused
to pay, that is the ultimate fact. But the details, those are
surplusage in the complaint. Yun ang evidentiary facts.
Now, how do you state the ultimate facts? Actually,
a pleading tells a story. Story-telling man ang pleading ba.
You tell the court your gripe in your complaint or your defense
in your answer. The law says you must state the ultimate facts
in a methodical and logical form in plain, concise and direct
statement. Meaning, the law on pleading abhors flowery
words, literary words where everytime you read a pleading the
judge has to look at a thesaurus or a dictionary because he
does not understand what you are talking about. That is not
what the law wants. Plain, concise and direct. Now, kung
gusto mo gumamit ng literary language, sa arguments na
lang. But for purposes of stating your complaint, you only use
plain, concise and direct language. You tell your story in a
methodical and logical form.
This is a matter of style. Every person has his own style
of writing. If I will tell you a story and you narrate it again, I’m
sure you will have different styles of telling it. Iba-iba ang
presentation. May mga tao pag-nagkuwento, klaro ba.
Meron namang iba, the more you listen, the more that you get
confused. You do not understand. Hindi kasi methodical and
logical ang presentation niya. In your examinations, for
instance, you wonder you have the same answers pero siya
80, ikaw 75. The substance is the same. Pero tingnan mo ang
kanyang presentation. Mas maganda. The methodical and
logical manner of presentation definitely gets higher marks
than one that is not. Style yan, eh.
In addition to what the law says that you must omit
evidentiary facts, there are other matters which should not be
stated in the pleading based on decided cases. What are
these? A good example are facts which are presumed by
law. When a fact is already presumed by law, there is no
need to make that allegation because your cause of action
would still be complete.
Under the law on transportation, if a passenger riding
on a common carrier meets an accident and files an action
against the carrier for damages arising from breach of
contract of carriage, is there a necessity for plaintiff to allege
that the common carrier acted with negligence? There is no
need to allege because the law presumes the common carrier
to be negligent. It is not for the passenger to prove that the
common carrier is negligent. It is for the common carrier to
prove that it is not negligent. So, even if the passenger will not
make an allegation that there was negligence on the part of
the defendant, the cause of action is complete. Facts
presumed by law need not be alleged.
But if it is an action for damages arising from culpa
aquiliana or quasi-delict, where there is no pre-existing
contract between the parties, the liability of the defendant
hinges on negligence. So, it is necessary for the plaintiff to
allege the negligent act of the defendant. Otherwise, there is
no cause of action. It becomes an ultimate fact which should
be alleged in the pleading.
Another example of matters which should not be
alleged in the pleading is what we call conclusions of fact and
law. What the law requires is statement of facts and not
conclusions of fact and law. Sometimes, for a law student and
even for a new lawyer, it is very difficult to distinguish whether
a statement is a statement of fact or a conclusion of law.
Because it is very common for pleadings to sometime say:
Defendant is liable to plaintiff for damages. He is liable for this.
He is liable for that. That is not a statement of fact. That is your
conclusion. You must state the basis why he is liable. Or,
plaintiff is entitled x x x. Actually, that is not a statement of
fact. That is your conclusion. You must show your basis on why
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you are entitled. There are pleadings na kung basahin mo,
puro ganyan. So, if you analyze it deeply, and everything is
conclusion then the complaint is dismissible. Actually, it states
no cause of action.
If you want a case where the SC had a very
extensive discussion on whether an allegation in the pleading
is a statement of ultimate fact or a conclusion of fact, you
read the old case of:
MATHAY VS. CONSOLIDATED BANK
58 SCRA 559
A bare allegation that one is
entitled to something is an allegation of a
conclusion and such conclusion adds
nothing to the pleading it being necessary
to
plead specifically the facts upon which
such conclusion is founded.
Why do you say you are entitled to it? Yung basis, yun
ang ultimate fact. In one case, the complaint stated that the
defendants are holding the plaintiff’s property in trust for
plaintiffs, is that a statement of fact or a conclusion? The SC
said that is a conclusion. An allegation in a complaint stating
that the defendants are holding the plaintiff’s property in trust
for plaintiffs without averment of facts from which the court
could conclude the existence of the alleged trust is a mere
conclusion of law and does not constitute a cause of action.
That is why if you look at some complaints, majority of the
paragraphs are mere conclusions. It claims that plaintiff is
entitled without stating the basis for entitlement.
The second paragraph of Sec. 1 is a new provision. If
a defense is based on law, the pertinent provisions thereof and
their applicability to him shall be clearly and concisely stated.
This seems to be the exception because in a pleading, you
state facts. You do not state legal provisions. Sec. 1 says
except if your defense is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and
concisely stated. example, my defense is prescription, statute
of limitations, I will have to cite the law. An action for
collection of a loan based on a written contract which
prescribes in ten years. So, I will have to cite the law. That is
not a statement of facts. That is a statement of law. But I put it
in my answer and I will say this loan was secured 15 years ago.
Therefore, the action has prescribed. That is the exception
where your defense is purely legal. So, you must quote the
law. Normally, as I said, under the law on pleadings, you do
not cite the law. Cite it later when you argue. That is why the
second paragraph is a new provision not found in the old rules.
Sec. 2. Alternative causes of action or
defenses. - A party may set forth two or more
statements of a claim or defense alternatively or
hypothetically, either in one cause of action or
defense or in separate causes of action or
defenses. When two or more statements are
made in the alternative and one of them if made
independently would be sufficient, the pleading
is not made insufficient by the insufficiency of
one or more of the alternative statements. (2)
May a plaintiff in his complaint state two or more
claims alternatively or hypothetically? Yes. May a defendant
in his answer plead two or more defenses alternatively or
hypothetically? Yes, that is allowed. What happens if one
cause of action is insufficient? Meaning, one cause of action
does not actually state a cause of action but the other one
states the cause of action? One is sufficient, the other one is
insufficient. Will it cause the dismissal of the complaint? No,
the complaint will remain insofar as the sufficient cause of
action is stated. That is what the law says.
May a defendant in his answer plead two or more
defenses which are inconsistent with each other? Because it is
possible for two defenses to be inconsistent. is that allowed.
The SC said yes. A party in one pleading, may state two or
more alternative or hypothetical defenses. They may be
inconsistent with each other but what is important is that each
defense is consistent in itself. That is the principle.
There are some parties or lawyers who are afraid to
state in one pleading two or more possible defenses na
inconsistent. Alternative, ba. Because it might be taken
against him. There are two possible defenses but for the
moment I am not sure which is the correct defense. But the
trouble is I must make a decision. I must make a choice
because I cannot state two defenses which are inconsistent
with each other. That is a wrong attitude. The rules allow it.
What is important is it is consistent in itself.
Here is an example of an answer with two alternative
defenses: You filed a case against me to collect an unpaid
loan. This is my defense. I never borrowed money from you.
that is a negative defense. And then myt alternative defense:
Assuming that I borrowed money from you, the money that
you gave me was your donation, your gift during my birthday.
How can you reconcile the first defense from the second?
First, I said I never borrowed money from you. Now, I received
money from you. The second is only an assumption.
Assuming, ba. Assuming that you gave money to me, that
money was your gift to me. Then another alternative defense:
On the assumption further that there was a loan, the money I
received from you was a loan and not a donation, however,
such loan has already been paid.
If you analyze these three, they do not reconcile.
First, I did not receive money from you. But assuming I
received the money, that was not utang but your gift to me.
But assuming that it was a loan, it was already paid. And the
lawyer can do this. Why? Because when I file my answer, I am
not so sure what is the evidence. Mamaya kung malaman ko
ang ebidensiya mo, I will adopt that. That is what you call a
shotgun answer or a shotgun defense. Pagputok niyan,
tamaan lahat. In other words, kung hindi ito, ito. Kung hindi
naman ito, ito.
Halimbawa ang defense mo is donation. You put all
your eggs in the basket, so to speak. Then later on during the
trial, hindi naman pala donation. Loan pala all along kahit
bayad na. Kambiyuhan ko yung aking depensa. You cannot
do that. That is prohibited by the rules because according to
the next rule, Rule 9, defenses or objections not pleaded in the
answer are deemed waived. Meaning, if your defense is that
the money was a donation, that defense cannot be changed
in the middle of the trial. Because the court has no jurisdiction
over the issue of payment. So, ilagay ko na lahat diyan and
that will even confuse the opposing party. Then, during the
trial, doon na mag-decide whether donation or what. But
definitely there is nothing wrong if the answer or the pleading
alleges inconsistent alternative or hypothethical claims or
defenses.
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And to show that the provisions of the rules are
interrelated, alternative causes of action, alternative defenses,
let us go back to the following provisions:
1. Rule 2, Sec. 5: Joinder of causes of
action. - A party may in one pleading
assert, in the alternative or otherwise, as
many causes of action as he may have
against an opposing party x x x.
2. Rule 3, Sec. 6: Permissive joinder of
parties. - All persons in whom or against
whom any right to relief in respect to or
arising out of the same transactions is
alleged to exist, whether jointly, severally,
or in the alternative x x x.
3. Rule 3, Sec. 13. Alternative defendants.
- Where the plaintiff is uncertain against
who of several persons he is entitled to
relief, he may join any or all of them as
defendants in the alternative although a
right to relief against one may be
inconsistent with a right of relief against
the other.
General vs. Specific Averment
How do you make an allegation, a statement or
averment in your pleading? There are two ways: either your
allegation is very general or very specific. meaning, when you
make a statement that is broad, that is what you call a
general statement or averment. There are instances naman
when you have to be very specific, very particular. So a
general statement will not suffice. What statements in a
pleading may be made in general terms and what statements
should be made with particularity?
Sec. 3. Conditions Precedent. - In any
pleading, a general averment of the performance
or occurrence of all conditions precedent shall be
sufficient. (3)
We know very well that there are instances where
you cannot go to court without complying with the condition
precedent. That is part of the right of action. Condition
precedent means there are certain things that you have to do
first. Suppose I say in my complaint that before filing this case,
I already complied with that requirement. My statement is
very general, ba. Is that allowed? Yes, because the law says
so in Sec. 3. There is no need to be specific.
In your administrative law, you came across with the
doctrine of exhaustion of administrative remedies. There are
certain cases that you have to start with the administrative
department or the executive level. Bawal mag-punta ng
court agad-agad. You have to exhaust all your remedies
under the administrative level. Like for example, a case which
starts with the Bureau of Lands. Award of property under the
Public Land Act. Hindi man puwede sa court yan. Bureau of
Lands yan. It will determine whether you are qualified or not to
be awarded a patent. If you lose, and I will appeal the
decision of the director of lands, puwede na ako sa court?
Hindi pa. You go pa to the boss, the secretary of agriculture.
And from there, go can go to the office of the president. The
president can reverse the decision of the secretary. Ngayon,
ubos na. Puwede na ako sa court? Puwede na because you
have already exhausted all your administrative remedies.
I will say that before filing this case in court I have
exhausted my remedies in the executive branch of the
government. I have complied with the law on exhaustion. Is
that statement sufficient or do I have to recite the foregoing:
Before I was in the Bureau of Land, from there I went to the
Department of Agriculture, then I went to the Office of the
president, and now I’m here. That is very specific. I don’t
have to do that because under Sec. 3 in any pleading a
general averment of the performance or occurrence of all
conditions precedent shall be sufficient. So, that is one
instance where a general statement will suffice.
Sec. 4. Capacity - Facts showing the
capacity of a party to sue or to be sued or the
authority of a party to sue or to be sued in a
representative capacity or the legal existence of
an organized association of persons that is made
a party, must be averred. A party desiring to raise
an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific
denial, which shall include such supporting
particulars as are peculiarly within the pleader’s
knowledge. (4)
In a pleading, the plaintiff must have capacity to sue
and defendant must have capacity to be sued. You know
that. Is it necessary for me to say that plaintiff has capacity to
sue? And the defendant has capacity to be sued? Yes,
because this time the law says it must be done with
particularity. So, a general statement of capacity to sue or be
sued is not sufficient. You must specifically allege it. It must be
averred clearly. So, how do you do it? That plaintiff is of legal
age. That is usually the first part of the complaint. There is no
presumption that you are of legal age. You must state that
you are of legal age and therefore you have the capacity to
sue. In the same manner, defendant is of legal age. That has
to be stated specifically.
How about a corporation? I will sue a corporation. Is
it enough to state I am suing X & Co.? No. How do lawyers do
it? Plaintiff, Juan dela Cruz, of legal age, a resident of Davao
City whereas X & Co. is a corporation existing under the
Philippine Corporation Law. Yan. In other words, it must be
stated with particularity. It becomes clearer when you reach
corporation law. If you are a foreign corporation suing in a
Philippine court, you must allege that you have the personality
to sue in a Philippine court. The law will not assume it because
capacity to sue or be sued must be specifically averred.
Suppose you allege it. You say you are of legal age.
You are a corporation. Ako naman ang defendant. Sabi ko I
do not know if you are of legal age, Meaning, I will just make
a general statement or I do not know whether you are a
corporation or not. So, I will deny your personality to sue and
be sued. Can I just make a general denial? No. You must do
with particularity also. The second sentence says: A party
desiring to raise an issue as to the legal existence of any party
or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial which
shall include such supporting particulars as are peculiarly
within the pleader’s knowledge. So a general statement is not
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sufficient. You must particularize on why he has no capacity
to sue. Why is he not a representative party. that is what
second sentence is all about.
Sec. 5. Fraud, mistake, condition of the
mind.- In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must
be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a
person may be averred generally. (5a)
When you allege fraud or mistake, the circumstances
constituting fraud or mistake must be stated with particularity.
An example of a case where a party alleges fraud or mistake
is annulment of contract. That your consent was secured
through force, intimidation, mistake, fraud. The defendant
employed fraud in getting your consent. So, I will file a case
against you for annulment of contract on the ground that my
consent was secured through fraud or mistake. And I would
say that defendant secured my consent through fraud. Is that
statement sufficient? That is not sufficient. The law requires
that in circumstances constituting fraud or mistake, it must be
stated with particularity. Meaning, in my complaint, I must
state how the fraud was committed. You must describe
exactly how the fraud was employed to get your consent.
On the other hand, according to Sec. 5, malice,
intent, knowledge or other condition of the mind of the person
may be averred generally. I will accuse you of malicious
intent. So, I say you acted with malice or you acted with
knowledge of something. Is that statement sufficient? Yes,
because the law says that malice, intent, knowledge or other
condition of the mind may be averred generally. There is no
need of particularizing on the malice, intent, knowledge or
other condition of the mind. Why is this so? The reason is
simple. I cannot particularize what is in your mind. How can I
read your mind? I cannot describe in detail the malice or the
knowledge in your mind. I can only say it in general terms. But
how come when you allege fraud or mistake, this time, a
general statement is not enough? Again the reason is simple.
Because fraud and mistake is not purely a mental process. It is
an external act. Fraud is employed openly, physically or
overtly. How you are deceived is not only in the mind. Those
are manifested by external acts. Therefore, a party is in a
position to describe how a fraud was perpetuated or
committed by the other party.
Sec. 6. Judgment.- In pleading judgment
or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or
decision without setting forth matter showing
jurisdiction to render it. (6)
You plead a judgment or decision of a court whether
domestic or foreign or of a judicial or quasi-judicial tribunal, or
of a board or officer. An example of a case where a party in
his pleading will invoke the decision of another court is when a
defendant in a civil case pleads the defense of res adjudicata.
The matter which is the subject matter of the case has already
been decided years ago. This is practically the same
complaint that was filed years ago and was already decided
so I will have to move for dismissal because, in effect, you are
splitting your cause of action. Do you remember the rule
against splitting a single cause of action? If two or more suits
are instituted on the basis of the same cause of action, the
filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others.
So, I will ask the court to dismiss the case because
there was already judgment rendered by the court years ago.
Is it enough for me to say that there was a judgment by the
CFI of Davao City 10 years ago? Yes, a general statement is
already sufficient. Hindi mo na kailangang i-explain isa-isa.
The presumption is the court had jurisdiction. You do not have
to say that the court had jurisdiction when it tried the case
years ago. So, it can be averred generally. Now, there is one
more. Let us jump to Sec. 9:
Sec. 9. Official document or fact.- In
pleading an official document or official act, it is
sufficient to aver that the document was issued or
the act done in compliance with law. (9)
This time you are invoking an official document or
official act. There is a letter of the mayor stating that this
requirement has been complied with officially. All that I have
to say is that the official document was issued or the act done
in compliance with law. I do not have to be specific. What is
that law? How was that complied with? That is not important.
A general statement will suffice.
Summarizing Sec. 3 up to Sec. 9, what allegations,
statements or averments in the pleadings may be made
generally?
1. the performance or occurrence of all conditions precedent
(Sec. 3)
2. malice, intent, knowledge or other conditions of the mind of
a person (Sec. 5)
3. in pleading a judgment or decision of a domestic or foreign
court, etc. (Sec. 6)
4. in pleading an official document or official act (Sec. 9)
On the other hand, what facts should be averred or
alleged with particularity?
1. capacity of a party to sue or be sued (Sec. 4)
2. a party desiring to raise an issue as to the legal existence x x
x (Sec. 4)
3. circumstances constituting fraud or mistake (Sec. 5)
Actionable document
Sec. 7. Action or defense based on
document.- Whenever an action or defense is
based upon a written instrument or document,
the substance of such instrument or document
shall be set forth in the pleading, and the
original or a copy thereof shall be attached to
the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said
copy may with like effect to be set forth in the
pleading. (7)
First of all, let us define an actionable document. An
actionable document is a document which is the very basis or
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foundation of a party’s cause of action or defense and is not COMPLAINT
merely an evidence of his cause of action or defense. If you
will file an action against a debtor for an unpaid loan based
on a promissory note, that promissory note is the very basis or Plaintiff A is of legal age,
foundation of your cause of action and not merely an a resident of Davao City,
evidence of your cause of action. Yun ang poste ng kaso mo. whereas Defendant B is
That is the very heart of your cause of action. also of legal age and a
resident of Davao City
xxx.
But aside from your promissory note that you are
holding, you wrote the defendant several letters of demand to
pay but he did not pay. Your letters of demand are evidence On Nov. 10, 1996,
of your cause of action of the default of the defendant. That defendant secured a
is not the basis of your claim. Therefore in your action to loan from plaintiff in the
collect an unpaid loan, you are holding some documents and sum of P50T payable not
these are the promissory note, letters of demand, and maybe later than Nov. 10, 1997
sumulat pa sa iyo na he promised to pay in one week. In all at 12% p.a., a copy of
these, only the promissory note is the actionable document. said promissory note
All the others are not although they are also important. being hereto attached
as annex “A”.

Suppose your action is to annul or rescind a contract,

is the written contract to be rescinded the basis or foundation The account has already
of your action or not? Yes, it is. Therefore, the contract to be fallen due but despite
annulled or rescinded is an actionable document. repeated demands,
defendant refused to
pay.
You are the defendant in an action against you for
collection of an unpaid loan and you have a receipt to prove
payment. So, your defense is payment. Is the receipt you are Meaning, the main features of the promissory note
holding the basis of your defense or mere evidence of your are recited in your pleading. The date the loan was secured,
defense? It is the basis of your defense. Doon nakataya, eh. the amount, the interest. But still you have to attach a copy of
Your defense is anchored on that receipt. Conclusion: The the promissory note, either xerox copy or the original. In most
receipt is an actionable document for the defendant. So, not cases xerox copy. Normally, we call it annex A. So, that is the
every document that you are holding which you intend to first manner.
present in a case is actionable. Maybe they are all important,
relevant and material but they are not actionable.
The second manner is done this way:

Why is it important to determine whether the

document is actionable or not? Because of Sec. 7. When you
COMPLAINT
are pleading an actionable document as part of your cause
of action or defense, you must follow the procedure in Sec. 7 -
how to plead an actionable document. So, it must be
pleaded properly in the manner expressed in Sec. 7 Plaintiff A is of legal age,
a resident of Davao City,
whereas Defendant B is
also of legal age and a
So, how do we plead an actionable document?
resident of Davao City
According to Sec. 7, an actionable document should be
xxx.
presented or pleaded in two (2) possible manners:

On Nov. 10, 1996,

1. The substance of such instrument or
defendant secured a
document shall be set forth in the
loan from plaintiff
pleading and the original or a copy
covered by a PN which is
thereof shall be attached to the
quoted verbatim in this
pleading as an exhibit which shall be
complaint.
deemed to be part of the pleading; or

The account has already

2. Said copy may with like effect be set
fallen due but despite
forth in the pleading.
repeated demands,
defendant refused to
pay.
Let us give an example of the first manner:
Promissory note. B signed a promissory note in favor of plaintiff,
say last year Nov. 10, 1996 payable on Nov. 10, 1997, one year,
So, you copy the entire promissory note word for
the loan is P50T with stipulated interest of 14% p.a. The PN is
word. So, there is no need to attach a copy of the PN. So,
worded as: Nov. 10, 1996 I promise to pay A the sum of P50T
that is the second manner. These are the ways to plead an
not later than Nov. 10, 1997 with 14% interest p.a. Signed B.
actionable document. Either one will do.
Now, I would like to collect from you. So, the PN is an
actionable document. Using the first manner, I will plead it this
way:
Now, if the document is not classified as actionable,
then there is no need to do that. Just imagine if you will apply
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sec. 7 to all documents in your possession. For example in a
case I intent to present in evidence 50 documents and only
one is actionable and 49 hindi. So, I will have 49 annexes. So,
ang pleading mo, kakapal.
Sec. 7 is important because of Sec. 8. If an
actionable document is properly pleaded in your pleading in
the manner mentioned in Sec. 7, the other party is now
obliged to follow Sec. 8 if he wants to contest such
documents. Sec. 8 is deemed a continuation of Sec. 7.
How to contest actionable documents
Sec. 8. How to contest such documents.-
When an action or defense is founded upon a
written instrument, copied in or attached to the
corresponding pleading as provided in the
preceding section, the genuineness and the due
execution of the instrument shall be deemed
admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an
oath does not apply when the adverse party does
not appear to be a party to the instrument or
when compliance with an order for an inspection
of the original instrument is refused. (8a)
We will go to a concrete example. I will sue Mr.
Santos on a promissory Note. I am holding a PN which was
supposedly signed by him. So I will plead the PN in my
pleading in the manner provided in Sec. 7. So, Mr. Santos
received a copy of my complaint, read it and saw the copy of
the PN attached thereto. Wala man akong pinirmahan, ba.
This is not my signature. This is forgery. My signature has been
falsified. So, what will he do in his answer? Naturally, when his
lawyer files his answer, he will deny the genuineness and due
execution of the PN. He will deny its authenticity. Yung gi-
attach mo na PN, I did not sign that. That is falsified. But the
lawyer forgot one thing. He did not verify your answer. Ano
man yang verify the answer? We took that up already, Rule 7.
Meaning, under oath. The defendant will state: I have caused
the preparation of the foregoing answer. That the allegations
therein are true and correct to my own knowledge. Meaning,
his denial of the genuineness of the promissory note has to be
under oath. The law commands it now to be under oath. If
you deny the signature to be yours, you better make your
denial under oath.
What happens if your lawyer fails to remember Sec.
8? Deny lang, hindi under oath. The genuineness of the
promissory note is deemed to be automatically admitted by
you. So, your defense of forgery is automatically out. That is
the effect. Terrible, no?
Another example. I will sue you for P50T and here is
the PN attached. Ang nakalagay sa PN P50,000. Nakita mo
so you go to your lawyer and say that the PN is falsified. I really
borrowed money and that is my signature but the loan was for
P5,000. Nganong na P50,000 na man na? So, there was an
alteration. So, and defense ng lawyer mo is that the
document has been altered. There has been changes in the
figures. The accuracy of the amount in the PN is questioned.
Again, the denial was not under oath. So, the effect? You are
admitting that it is P50,000. Sakit, no.
So, that is one instance where a pleading has to be
verified. Otherwise, the denial of the genuineness and the due
execution of the instrument properly pleaded under Sec. 7 is
deemed to be automatically admitted. When we were in Rule
7, the general rule is that pleadings need not be verified unless
the law or the rule requires verification. So, this is one answer
to the bar question I told you before. What are the exceptions
to the general rule that pleadings need not be verified. So,
this instance requires verification.
So, we say that a party who fails to make the proper
denial is deemed to have admitted the genuineness and due
execution of the actionable document which is pleaded by
the opposing party. In one bar examination, the examiner
asked this case. This problem keeps on recurring. I can no
longer remember how many times it came out in the bar.
Either the question is objective or in a form of a problem.
When you say that a party is deemed to have
admitted the genuineness and due execution of an
actionable document, what specific facts are deemed to be
admitted? And the answer to this question was laid down by
the SC in the old but leading case but which is still quoted from
time to time by the SC even up to last year is:
HIBBERD vs. RHODE
32 PHIL 476
The SC said, the following specific
facts are deemed admitted by the adverse
party who fails to contest the genuineness
and due execution of an actionable
document as required by law:
1. the party whose signature it bears signed
it;
2. if signed by another, it was signed for him
and with his authority;
Suppose, one of you will go to my friend and claim
that I am borrowing money through you. Inutusan kita kamo.
Actually, I did not but you used my name to borrow money.
Then you signed the PN placing my name, tapos signed by
agent. So, when you did not pay, ang gidemanda ng friend
ko, ako. Tapos, naka-attach yung PN that you signed. But I
never authorized this person. So, my defense is that the loan is
not authorized. The one who signed it is not really my agent.
He only used my name. But I did not verify my answer. So ang
effect, you are deemed to have borrowed money in my
behalf. So, the defense of unauthorized signature is
automatically out.
3. At the time it was signed, it was in
words and figures exactly as set out in the
pleading of the party relying upon it;
When I signed that PN it was P5,000. How come it is
now P50,000? That defense is out because when you fail to
deny, you are admitting that when you signed it. That is what
exactly how it appeared. So, it was really P50,000. The
defense of falsification is automatically out.
4. The document was delivered;
Meaning, delivery of a document is sometimes
essential to make it valid.
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 5. Any formal requisites of law, such as
seal, acknowledgment (yung mga
notarization), or revenue stamp which it
lacks are waived by him.
Meaning, kung may kaunting diperensiya like walang
notarial seal, walang acknowledgment, walang revenue
stamp, all these defects are deemed cured.
Defenses deemed barred
So, very fatal ang effect, no? And the bar examiner
continued his question. If a party fails to contest properly the
genuineness and due execution of an actionable document,
what are the defenses that are deemed barred? Meaning, a
party is not allowed to present the following defenses in court.
Defenses which are inconsistent with the genuineness and due
execution are deemed waived. Any defense which denies
the genuineness or due execution of the document is deemed
automatically waived.
Sabi ng SC in the case of Hibberd: The signature
appearing in the document is forgery. Out. That defense is no
longer available. In case it is signed by agent in behalf of a
corporation or partnership or principal, the signature was
unauthorized. That defense is no longer available. The
corporation was not authorized under its charter to sign the
instrument. That defense is out. The party charged signed it in
some other capacity than that alleged in the pleading. Out.
It was never delivered. Out. All these defenses are deemed
inconsistent with your own admission.
The Hibberd ruling continued. Does it mean to say
that when you admit the genuineness and due execution of a
document you have no more defense? Practically, talo ka
na? No. According the SC in this case, what are barred or no
longer available are defenses which are inconsistent with your
own admission of the genuineness and due execution of the
document. Like, forgery. Because you cannot admit that the
document is genuine and at the same time allege that it is
forged. Out na yun. Inconsistent, eh. But if a defense does
not deny the genuineness and due execution of the
document, it is still a valid defense. You can still invoke it
because your defense is not inconsistent with your own
admission.
The SC said in Hibberd: Defenses which are not
inconsistent with the genuineness and due execution of the
instrument may still be asserted. Examples of defenses which
may still be interposed by defendant despite the fact that he
already admitted the genuineness and due execution of the
document are the following:
1) Payment. I can admit that the document is really
valid. Nanghiram man ako ba. but, bayad na yan. 2) want
or illegality of consideration. I signed the PN. The trouble is I
did not get the money. There is no conflict between my
admission and my defense. 3) Fraud. My signature was
obtained through fraud. I am denying that that is my
signature. But it was secured by fraud. So, there is no conflict.
4) Mistake. I signed by mistake. 5) Compromise 6) Statute of
limitations 7) Estoppel 8) Duress 9) Minority 10) Imbecility.
These defenses are not inconsistent with your own admission.
As I said, these are the three important areas which were laid
down by the SC in the case of Hibberd vs. Rhode.
Now, is this benefit waivable? The answer is yes. I will
sue you to collect a PN where your signature is actually forged.
I will attach the PN to my complaint. In your answer, you
raised the defense that you did not sign the PN and that the
signature there is falsified. But your lawyer did not verify your
answer. So, nakalamang na ako because by failing to comply
with Sec. 8, you are deemed to have admitted the
genuineness and due execution of your signature and any
attempt on your part to prove forgery, hindi na puwede. You
are barred from proving forgery. I can object if you so
attempt under the rules. So, I have in my benefit the implied
admission. Now, during the trial. You presented to deny the
signature. Ang abogado ko naman, tanga, hindi nag-object.
What is the effect? Waived din. In other words, you can now
prove forgery because I did not object. I should object.
Otherwise, I am waiving the privilege.
That is what the SC said. The benefit of the admission
of genuineness and due execution of an actionable
document may be waived where the pleader fails to object to
evidence controverting the genuineness and due execution of
the instrument. In other words, the lawyer of the defendant
does not remember Sec. 8 and therefore the denial is invalid.
But the lawyer of the plaintiff did not also remember the rule in
Sec. 8 and therefore, when there was evidence of forgery, he
failed to object. So, the incompetence of the defendant’s
lawyer and the incompetence of the plaintiff’s lawyer cancel
each other. That is what happens if the lawyer does not know.
Makalusot ang hindi dapat makalusot.
When denial not under oath still valid
Is there any instance where a denial which is not
under oath is valid? Because a denial is not valid unless it is
specific and under oath. The last portion of Sec. 8 provides
that the requirement of an oath does not apply where the
adverse party does not appear to be a party to the instrument
or when compliance with an order of inspection of the original
instrument is refused.
You sue me and there is an actionable document.
But I am not a party. I am not a signatory to that instrument.
But I know it is fake. So I will say that the signature of the other
party is fake. I did not verify my answer. There is still a valid
denial because the party denying it does not appear to be a
party to the instrument.
On the second exception, here’s an example. You
sue me based on a contract which I supposedly signed. I
looked at the copy but I am not sure whether I signed it or not.
It looks like my signature but I am doubtful. I have been
signing a lot of documents so I am not sure if it really is my
signature. So, if I deny under oath and it turns out to be really
mine, ma-perjury ako. So, teka muna. I want to see the
original. Before I will file my answer, I want to see the original
first. So, I will ask for a court order to inspect the original. You
can do that under Rule 27 (Production or Inspection of
Documents) which we will come to learn later. So,
defendant’s lawyer applied Rule 27 asking the court to allow
defendant to inspect the original. The court granted. Pero
ayaw ipakita ng plaintiff. So, I will now deny and I will not
place it under oath. Meaning, there is now a valid denial.
Because there was an order for the inspection f the original. It
is refused so I am now free to deny it’s my signature and I do
not have to make it under oath.
There is a third exception although it is not found in
the rules. A denial of the genuineness and due execution of a
document is valid even if it is not under oath if the document
to be denied is not an actionable document. Because Sec. 8
applies only to actionable documents. In the first place, if the
document is not actionable, there is no need to apply Sec. 7
on your part. But since you did it, I am not obliged to apply
Sec. 8 because sec. 8 applies only of the document is
actionable under Sec. 7. So, a document which is not
actionable can be denied by a party and the denial is not
under oath.
We will connect Sec. 8 with another problem. You
will sue me to collect on a PN. But my defense is payment.
And to show that the obligation is paid, I will attach to my
answer the receipt which supposedly bears your signature. So,
my defense is based on an actionable document. So, it is the
defendant now who is pleading an actionable document to
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support his defense. When you received a copy of my answer
and you looked at the receipt, you noted that your signature
there is falsified. So, what is falsified now is the document
attached to the answer.
Q: Are you obliged to deny the genuineness and due
execution of the receipt which is attached to defendant’s
answer?
A: Yes, otherwise, you are deemed to have admitted the
genuineness of your signature on the receipt.
Q: In what pleading will you deny the genuineness and
due execution of the receipt?
A: Reply. So, you will have to file a reply denying the
genuineness and due execution of the receipt attached to
my answer. Because what is the responsive pleading to
the Answer? Reply, di ba.
Now, you did not file a reply because according to
you, under the law on reply, the filing of a reply is not
mandatory but merely optional. That is Rule 6, Sec. 10. If a
party does not file a reply, all the affirmative defenses raised in
the answer are deemed controverted because the filing of a
reply is optional. So, you did not file any reply. I maintain that
you are deemed to have admitted the genuineness and due
execution of the receipt in my answer because of Sec. 8.
When a defense is founded upon a written instrument, copied
in or attached to the corresponding pleading, it shall be
deemed admitted unless the adverse party under oath
specifically denied them xxx. Meaning, my position is by failing
to file a reply you are deemed to have admitted the
genuineness and due execution of the receipt attached to my
answer. I rely on Sec. 8, Rule 8.
But according to you citing Rule 6, Sec. 10 you do not
have to file a reply because the filing of a reply is not
mandatory. and under the law, even if I do not file a reply, the
genuineness and due execution of that receipt is deemed
automatically denied. So, there seems to be a conflict
between Rule 6, Sec. 10 and Rule 8, Sec. 8. So, who is right
between us? Which will prevail between the two (2)
provisions?
Rule 8, Sec. 8 prevails because it deals specifically
with actionable documents whereas Rule 6, Sec. 10 is the
general rule. The filing of reply is optional. That applies to
replies in general. But when the question deals with
actionable document, Rule 8, Sec. 8 is more specific. In your
study of statutory construction, when there is conflict between
a special or particular provision and a general provision, the
former prevails. So you should file a reply because Rule 8, Sec.
8 specifically applies to actionable documents.
When filing of reply is compulsory
There was a question in the bar: The filing of a reply is
generally optional. Cite an instance where the filing of a reply
becomes compulsory. The filing of a reply becomes
compulsory when an actionable document is properly
pleaded in the answer of defendant and the plaintiff would
like to deny the genuineness and due execution of the
actionable document. He has to file a reply denying it. And
not only that. The reply must be under oath. Otherwise, the
genuineness and due execution of that actionable document
attached to defendant’s answer is deemed admitted. In
effect, I am now obliged to file a reply. I cannot anymore rely
on Rule 6 that the filing of a reply is optional.
Before we discuss Sec. 10, let us go back to Rule 6:
Sec. 5. Defenses. - Defenses may either be negative
or affirmative.
a. A negative defense is the specific denial of
the material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of
action.
xxx
We are reviewing, no. An answer must plead
defendant’s defenses. That is basic. What are these defenses?
Negative or affirmative. Briefly, a negative defense is a
defense of specific denial. Where the defendant, for
example, will specifically deny the material allegations or
averment in the complaint. We have learned that. The next
question is: How do you make a specific denial? The answer is
in Sec. 10, Rule 8 - the modes of specific denial.
Sec. 10. Specific denial.- A defendant must specify
each material allegation of fact the truth of which
he does not admit and, whenever practicable,
shall set forth the substance of the matters upon
which he relies to support his denial. Where a
defendant desires to deny only a part of an
averment, he shall specify so much of it as is true
and material and shall deny only the remainder.
Where a defendant is without knowledge or
information sufficient to form a belief as to the truth
of a material averment made in the compliant, he
shall so state, and this shall have the effect of the
denial. (10a)
An analysis of Sec. 10 shows that there are three (3)
possible ways of making a specific denial. the following are
the modes of making a specific denial:
1. A defendant must specify each material
allegation of fact the truth of which he does not
admit and whenever practicable, shall set forth
the substance of the matters upon which he relies
to support his denial.
Par. 3 of a complaint goes like this: Defendant
secured a loan of P50T from plaintiff. I am the defendant and I
will now deny. How? Remember the allegation is made in the
third paragraph. Defendant will say: Defendant specifically
denies the allegation in par. (3) of the complaint. You can just
refer. There is no need to repeat par. (3). The truth of the
matter being defendant does not even know the plaintiff and
defendant has received nothing from plaintiff. That is the first
manner. You deny the allegation in the complaint by referring
to the number but you must also state the facts relied upon in
support of your denial. Meaning, plaintiff says that is true. I
say That is not true. This is what is true.
Suppose the defendant would simply say:
Defendant denies the allegation in par. (3). No explanation is
stated. Then, the denial is classified as a general denial. A
general denial is denial of an allegation in a complaint where
the answer denies it without stating the facts relied upon to
support his denial. What is the effect of a general denial? The
effect is that the allegation in the complaint is deemed
automatically admitted. Because a general denial is not
allowed. The principle behind this is that you must lay your
cards on the table. Walang taguan. The plaintiff has laid his
cards on the table by making a statement that this is what
happened. Defendant cannot just say that is not what
happened. Ano pala talaga ang nangyari? Mamaya ko na
sabihin. That would be unfair. I’ve shown my cards. Ayaw mo
ipakita ang sa iyo? That is not allowed. If you violate the rule,
your denial is a general denial and it will have the effect of
automatically admitting the allegations in the complaint.
Page 92 of 296
 There was a case before where defendant made this
kind of answer: Defendant specifically denies the allegation in
par. 2 of the complaint. He specifically denies the allegation
in par. 3 of the complaint. He specifically denies the
allegation in par. 4. Practically lahat ng paragraph, he
specifically denies. Sabi ng plaintiff: Those denials are all
general. Sabi naman ng defendant: No. they are specific.
Klaro yan, o. I specifically deny x x x. the SC said: A denial
does not become specific simply because you use the word
specifically. What makes a denial specific is you comply with
the law. You don not just say I specifically deny. You must
state why you are denying. Otherwise, even if you use the
words specifically, but you did not comply with Sec. 10, your
denial is actually a general denial.
2. Where a defendant desires to deny only a part
of an averment, he shall specify so much of it as is
true and material and shall deny only the
remainder.
Sometimes it happens there is a paragraph or
allegation in the complaint where a portion is admitted and a
portion is denied. So, according to the second mode, you
admit so much of it as is true. Defendant admits that portion
of par. (4) of the complaint stating this but denies the rest
because of the following reasons x x x. Do not just say I deny
everything.
Example: Complaint: Defendant is occupying the
property in question in bad faith. Plaintiff is saying that you are
in possession of this property and you are a possessor in bad
faith. Defendant would say: Actually I am in possession of the
property but not in bad faith. Defendant admits that portion
of the paragraph in the complaint alleging that he is in
possession of the property which is the subject matter of the
litigation but denies that his possession is in bad faith. The fact
of possession, I admit. But the fact that I am a possessor in bad
faith, I deny. So, a portion is admitted, a portion is denied.
You know why the second mode is made a part of
the rules? Kasi some lawyers can be very careless. They look
at the allegations in the complaint and if they see something
that they do not like, they say the entire paragraph is denied
when actually some portions may be admitted. Defendant is
the possessor of the property in bad faith. I am the defendant
and I do not like the portion in bad faith. So, I would say,
defendant denies par. (4) of the complaint the truth of the
matter being he is in good faith. If you analyze it, he is not
really denying the possession. He is only denying the
qualification of bad faith.
NEGATIVE PREGNANT
And that kind of denial which is not in accordance
with the second mode is called a negative pregnant. A
negative pregnant is a denial which is not in accordance with
the second mode where it cannot be ascertained whether it is
the fact alleged which is denied or merely the qualification to
the fact that is being denied. But in effect only he form is
denied, not the substance.
3. Where a defendant is without knowledge or
information sufficient to form a belief as to the
truth of a material averment made in the
complaint, he shall so state and this shall have the
effect of a denial.
Meaning, the pleader is not in a position to know
whether what you are saying is true or not. I have no
knowledge or information. So, I am not in a position to admit
or deny. how can I admit or deny something I do not know? If
that is so, you use the third form of denial. How? Defendant
has no knowledge or information sufficient to form a belief as
to the truth of the allegation in par. (5) of the complaint. Yan
ang sabihin mo. And it has the automatic effect of a denial.
There are really allegations in a complaint that you
are not in a position to admit or deny. A plaintiff sued you and
one of his claims is moral damages. Because of what you did
the plaintiff suffered wounded feelings, besmirched reputation,
sleepless nights, mental anguish. Mga ganoon. So, bayaran
mo yung kaguol ko. How will defendant deny that? Sasabihin
ba niyang: I deny that plaintiff suffered sleepless nights, etc.
because every night plaintiff is sound asleep. He even snores.
(Tulo pa gani laway.) You cannot say that. Anong malay mo
kung totoo yan. So you say: I have no knowledge or
information sufficient to form a belief x x x .
I have seen some answers before na ganito:
Defendant has no knowledge or information sufficient to form
a belief as to the truth of the allegation in par. (5) and
therefore denies the same. To my mind, the last clause and
therefore denies the same is awkward. You cannot deny
something you do not know. You do not have to state that.
or, in another example. A complaint states: In filing this
complaint, plaintiff hired a lawyer for a fee of P50T. If you are
the defendant how would you admit or deny that? Sila ang
nag-usap niyan. You are not in a position to confirm whether
that agreement was really true. If plaintiff is really claiming
that, he has to prove that in court.
Let us go to jurisprudence. The SC has already ruled
several times that the third mode of denial should be availed
of in good faith. It should not be done in bad faith. The SC
said: When the facts pleaded in a complaint are such that
they should be within your knowledge then, you either admit
or deny in accordance with the first and second mode of
denial. But you cannot be evasive by saying that you have no
knowledge or information. You cannot be legitimately
claiming in good faith of something that you really know and
you should know. You can only do this in good faith. Ang third
mode is evasive. eh. Because you do not have to explain why
you are denying. But you must do it in good faith. If the denial
is made in bad faith, it becomes a general denial and
therefore the third mode is treated as an admission.
CAPITOL MOTORS CORP. vs. YABUT
32 SCRA 1
Yabut, (not the mayor) brought a
Mercedes Benz from Capitol Motors,
distributor of said car and covered by a
promissory note. In the PN, he
acknowledged a bought a car and made
a payment of P50T. Tapos, ang installment
is P10T monthly. After two installments, he
defaulted. Capitol Motors sued him. Sa
par. (2) Defendant on this date, defendant
bought from plaintiff a brand new
Mercedes Benz in the sum of P100T. Sabi ni
Yabut sa kanyang answer: Defendant has
no knowledge or information sufficient to
form a belief as to the truth of the allegation
in par. (2). What he is actually saying is I do
not know whether I bought a Mercedes car.
Par. (3) The car is P100T and defendant
made an installment of P50T. Answer:
defendant has no knowledge or information
x x x. meaning, I do not know whether I
gave you P50T or not. Par. (4) He paid the
first two installments. No knowledge
gihapon. Par. (5) The rest he did not pay. I
do not know. Etc, etc. So, lahat, ang sagot
niya no knowledge. I do not know if I
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 bought a car. I do not know I paid P50T. x x
x.
Sabi ng SC: Anong klaseng
answer yan? That is in bad faith. You are
denying in bad faith. The plaintiff’s
allegation are within defendant’s
knowledge. Huwag mong sabihing bumili
ka ng kotse di mo alam? You are trying to
be clever. You are trying to be evasive.
Therefore all your answers are deemed
general denial, in effect, you are deemed
to have admitted all the allegations in the
complaint. Therefore judgment is rendered
against you.
Sec. 11. Allegations not specifically denied
deemed admitted.- Material averment in the
compliant, other than those as to the amount
of unliquidated damages, shall be deemed
admitted when not specifically denied.
Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not
denied under oath. (1a, R9)
The principle laid down here is material averment in
the complaint shall be deemed admitted when not
specifically denied. This is a continuation of what we have
learned earlier. Suppose a denial is general. Then, the
allegations in the complaint are deemed automatically
admitted. So, examples are failure to state the facts upon
which you are denying, or as state in the case of Yabut, a
denial made in bad faith.
What allegations in the complaint are not deemed
admitted even when not specifically denied? And the law
says amount of unliquidated damages. So, the amount of
unliquidated damages is not deemed admitted even if not
specifically denied. Under the prior rules, the language there is
amount of damages. now it is amount of unliquidated
damages. Therefore, amount of liquidated damages could
be deemed admitted even if not specifically denied. Example
of unliquidated damages - moral damages about sleepless
nights, or besmirched reputation. Or expenses which I incurred
in the hospital, yung binayad ko sa doctor. Unliquidated yan,
eh. You have to prove exactly the amount that you paid. If
you are claiming for damages or reimbursement for your
hospitalization, you present the receipts.
Suppose you claim that the damages you sustained
in the hospital is P100T. Ako naman I failed to deny that
allegation specifically. Do you mean to tell me you are
automatically entitled to P100T? No, because amount of
unliquidated damages must always be proven. Whether it is
denied or not denied, you must present the receipts. That is
why it is an exception. Yun namang moral damages about
sleepless nights, besmirched reputation, I failed to deny. One
million ka agad? No, you better prove that you are worth one
million. That every night you haven’t slept is worth P100T. Yan
ang unliquidated damages.
Liquidated damages naman, yan ang obligation
with a penal clause. Meaning, even before, meron na tayong
pinag-usapan. I will construct your building and it must be
finished not later than January 31. Otherwise, if it delayed and
the construction is extended, I will have to pay, say P1,000 for
every month of delay. So, if I’m claiming for liquidated
damages, and you failed to deny it, then I am entitled to the
amount because you are deemed to have admitted it.
Because the amount need not be computed. Nandoon na
yan sa contract. The contract itself would show how much I
am entitled. So, the law now distinguishes liquidated and
unliquidated damages.
Are there other allegations or averments which are
not deemed admitted even when they are not specifically
denied? The law says material averment in the complaint,
other than those as to the amount of unliquidated damages x
x x. So, the exceptions are (1) amount of unliquidated
damages, (2) immaterial averments. Because doon, material
eh. So, if the averment is immaterial, I am not admitting it
even if it is not specifically denied. What else? (3) evidentiary
facts. As we have already learned previously, evidentiary facts
have no place in a pleading. It should not be even stated
there. So, what are deemed admitted are material averments
of ultimate facts. (4) conclusions of fact or law. We already
discussed that. You cannot allege conclusions of fact or law.
So, all these things are not covered by the rule.
The second paragraph of Sec. 10: Allegations of
usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath. Usury, meaning, charging
an interest over and above what the usury law allows.
Suppose I will charge you for usury. Babawiin ko yung sobra
na interest. So, I am charging you as a usurer. If you want to
deny my charge of usury, your answer must be under oath.
So, this is the second instance where a denial should be
verified. General rule, pleadings need not be verified. Except
when the law requires it. Yung first, when a pleading denies
the genuineness and due execution of an actionable
document pleaded in the other party’s pleading, the denial of
the genuineness of the promissory note to be valid must be
specific and the pleading must be under oath and verified.
The second is sec. 11, Sec. 9. Allegations of usury in a
complaint. So, these are the instances where the law requires
verification.
Now, a word. The 1964 rules contain a similar
provision. It used to be Rule 9, Sec. 1. however, in 1984, the SC
ruled in the case of:
LIAM LAW vs. OLYMPIC SAWMILL CO.
129 SCRA 439
The usury law has been non-
existent for so many years. With the
enactment of Central Bank Circular # 1905,
there is no more usury. Borrower and
charger can now charge any amount of
interest depending on the law on supply
and demand. Said the SC: For some time
now, usury has been legally non-existent.
Interests can be charge as lender and
borrower may agree upon. Therefore, the
provisions of the Rules of Court with regards
to allegations of usury procedural in nature
should be considered repealed with
retroactive affect.
Sec. 1, Rule 9 on allegations of usury is a similar
provision as the second sentence Sec. 10, Rule 8 and as early
as 1984, the SC had already rendered it repealed. That is why I
am wondering why does the 1997 Rules still have it. This is
supposed to be repealed already. The framers of the new
rules must not have been aware of the ruling in Liam Law. That
is already passé because of the non-existence of the usury
law. Dapat pag-revise ng Rules, tinanggal na yung second
sentence. Either nalimutan ng committee which drafted the
new rules or they were not aware of the Liam Law case. Last
September, I was able to talk with Daniel Martinez, the former
clerk of court of the SC but I forgot to bring this matter up with
him.
Sec. 12. Striking out of pleading or matter
contained therein.- Upon motion made by a
party before responding to a pleading or, if no
responsive pleading is permitted by these Rules,
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 upon motion made by a party within twenty (20)
days after the service of the pleading upon him,
or upon the court’s own initiative at any time, the
court may order any pleading to be stricken out
or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
therefrom. (5, R9)
What is the meaning of striking out a pleading? That
the pleading be deemed erased as if it was never filed. Or
portions of the pleading be ordered stricken out or expansed
where a pleading or a portion thereof is sham or false,
redundant, immaterial, impertinent, or a scandalous matter is
inserted in the pleading. So, the opposite party may move for
the striking out of those mentioned. Let us connect this to Rule
7, Sec. 3. (Third paragraph) Counsel who deliberately files an
unsigned pleading, or signs a pleading in violation of this rule,
or alleges scandalous or indecent matter therein, or fails to
promptly report to the court a change of his address, shall be
subject to appropriate disciplinary action.
So, if your pleading contains scandalous or indecent
matter, the lawyer who files it may be subject to appropriate
disciplinary action. That is the sanction under Rule 7, Sec. 3.
Under Rule 8, Sec. 12, the pleading may be ordered stricken
out as if it was never filed. So, these two provisions are related
to each other.
End of Rule 8.
Rule 9
EFFECT OF FAILURE TO PLEAD
Sec. 1. Defenses and objections not
pleaded. - Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from
the pleadings or the evidence on records that the
court has no jurisdiction over the subject matter,
that there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim.
(2a)
Defenses and objections not pleaded, waived
In what pleading is a defendant supposed to raise his
defenses. In the answer. In the same manner that objections
must be raised by the defendant through a motion to dismiss.
A motion to dismiss is similar to a motion to quash in criminal
cases. Motion to dismiss will be studied in Rule 16. Like for
example, improper venue. You can raise that by moving to
dismiss the case under Rule 16. So, you object to the venue
which is improperly laid.
Now, what happens if a defense is not raised in the
answer or an objection is not raised in a motion to dismiss? The
rule is the defense or the objection is automatically waived. In
order for you to validly use a defense, you must raise it either in
a motion to dismiss or in the answer. Otherwise, it is deemed
waived.
When I filed my answer to your complaint to collect a
loan, I never raised in my answer the affirmative defense of
payment. During the trial, I attempted to prove that the
obligation is paid by showing the receipt. That cannot be
done. I cannot prove it because I did not raise it in my answer.
That is what you call the court never acquired jurisdiction over
the issue. The court acquires jurisdiction over the issues by the
pleadings, di ba? So, if you look at the Rules, there is no such
things as surprise defense. How can you be surprised with a
defense when the party is not allowed to prove it where it is
not raised in the answer? Actually, when the parties go to
court, the plaintiff already knows what are the defenses. They
are already in the answer. So, the defendant cannot say I
have 2 defenses. Defense No. 1 is very, very strong. Defense
No. 2 hindi malakas. But I will hide Defense No. 1. When I file
my answer, I will only raise Defense No. 2. Itatago ko ang No.
1. Tan ang aking secret weapon. I will surprise the plaintiff
during the trial. If you do that, you will be the one who will be
surprised because the court will not allow you. You should
have raised that in your answer.
Exceptions
Now, there seems to be an exception to the rule. Look at the
2nd sentence. There are certain defenses which the court can
take cognizance of even if not initially raised in a motion to
dismiss or in the defendant’s answer provided it if found in the
evidence on record. What are these possible defenses?
1. No jurisdiction over
the subject matter;
2. That there is
another action
pending between the
same parties for the
same cause;
3. That the action is
barred by prior
judgment; and
4. The action is barred
by statute of
limitations
(prescription)
PNB vs PEREZ
16 S 279
The rule on waiver of defenses by failure to
plead in the answer or in a motion to dismiss
does not apply when the plaintiff’s own
allegations in the complaint show clearly
that the action has prescribed in such a
case the court may moto propio dismiss the
case on the ground of prescription.
When the court has no jurisdiction
over the subject matter, even if the
defendant did not raise it in his answer or in
a motion to dismiss, however, later on, he
remembered it, he can move to dismiss the
case. In the middle of the trial, he can raise
lack of jurisdiction. The plaintiff cannot say
that it cannot be done because lack of
jurisdiction can be raised at any stage of
the proceedings. You can raise it before
the trial, in the middle of the trial and
according to the SC, even after trial.
Now, suppose there is already a decision. Tapos, you
realized that the court had no jurisdiction. Can you still raise it
when there is already a judgment? The general rule is yes. It
can be raised even for the first time on appeal before a higher
court. Why? Because of the principle that when there is lack
of jurisdiction over the subject matter, everything is null and
void. The trial is null and void, the judgment is null and void
because the court had no authority. And even if the party did
not raise it, jurisdiction over the subject matter is conferred by
law. We already know that. It cannot be conferred by
agreement between the parties, by waiver, by silence of the
defendant. Even if the defendant did not raise it, if it is
apparent on its face that the court has no jurisdiction, or later
on, based on the evidence, it is found that the court has no
jurisdiction, with or without a motion, the court will dismiss it.
Motu propio. That is one exception.
Page 95 of 296

The three other exceptions are introduced only for
the first time by the 1997 Rules. These were not found under
the old rules.
2) That there is another action pending between
the same parties for the same cause;
3) That the action is barred by prior judgment;
and
4) The action is barred by statute of limitations
(prescription)
That there is another action pending between the
same parties for the same cause that is actually splitting a
cause of action. There is already an action and then you file
another action. The action can be dismissed on the ground
that there is a pending action. That is an effect of splitting a
cause of action.
Same thing with that the action is barred by prior
judgment. That is also splitting a cause of action. And you call
that res adjudicata. Or, the action is barred by prescription.
That is the statute of limitations. The 4th exception, although
not found in the ‘64 Rules, it is actually governed by
jurisprudence. The SC already said that when the action has
prescribed and it is apparent on the face of the complaint,
with or without any motion by the defendant, court can
dismiss it. That is taken from decided cases. One of these
cases was:
PEPSI-COLA vs. GUANZON
172 SCRA 571
The SC said the rule on waiver of
defenses by failure to plead in the answer or
motion to dismiss does not apply when the
plaintiff’s own allegations in the complaint
show clearly that the action has prescribed.
In such a case, the court may motu propio
dismiss the case on the ground of
prescription.
And that doctrine that the court can take
cognizance of prescription and dismiss it if apparent based on
the pleadings is now incorporated in Sec. 1. So, remember,
defenses and objections not raised in the answer or in a
motion to dismiss are deemed waived. A party is not allowed
to prove his defenses later because the court has not
acquired jurisdiction over the issues which is not raised in the
answer. Then, the four exceptions.
Laches…
LOGRONIO VS TALESEO
312 S 1999
May the court take cognizance of laches if the same
is not pleaded?
SC: Yes. Being the defense in equity, laches need
not be pleaded. On its initiative, a court may consider it in
order to prevent inequity.
Sec. 2. Compulsory counterclaim, or cross-claim,
not set up barred. - A compulsory counterclaim, or
a cross-claim, not set up shall be barred. (4a)
I think we have already discussed Sec. 2 when we
tackled compulsory and permissive counterclaims. That is the
effect of failure to plead. We will now go to the law on
default.
DEFAULT
Sec. 3. Default; declaration of. - 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. Thereupon, the court
shall proceed to render judgment granting the
claimant such relief as his pleading may warrant,
unless the court, in its discretion requires the
claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
(1a, R18)
What do you mean by default? A defendant or a
defending party is declared in default if he fails to answer the
complaint within the time allowed therefor. As we said, the
responsive pleading of a complaint is the answer. Within what
period? The answer is actually found in Rule 11. The general
rule is 15 days. From the time you are furnished a copy of the
complaint together with the summons, you count 15 days.
You must file your answer within 15 days. What happens if the
period to answer lapsed and there is no answer? What will
follow next is that the plaintiff will move that defendant be
declared in default. What is the ground? Failure to file an
answer to the complaint. So, the court will issue an order of
default. You are hereby declared in default. You are now a
defaulted defendant.
Effect of default
And what is the effect of default? If the party is
declared in default from that time on, he loses his standing in
court. Meaning, he cannot participate in the trial. He cannot
object to plaintiff’s evidence. He cannot present his own
evidence. So, the case will be decided only on the basis of
plaintiff’s side without anymore hearing the defendant. And of
course, the plaintiff will win. It is like a boxing bout. Ang rule, isa
lang ang mag-suntok. How can you win in that situation? That
is the effect of default. That is tantamount to giving up the
case.
Remember that default applies not only to
defendants. Defending party sabi ng law. A plaintiff can be
declared in default on the counterclaim for failure to file a
counterclaim. You know that in a counterclaim, plaintiff
becomes the defendant and defendant becomes the
plaintiff. So, the plaintiff has the personality to prove his cause
of action and he has to defend himself from the counterclaim.
Ganoon din sa cross-defendant. He can also be declared in
default in a cross-claim. So with the a third party defendant.
Can the court declare a defendant in default motu
propio because the court noticed that the defendant has not
filed his answer within 15 days? No, you must wait for the
motion declaring the defendant in default. And of course, the
defendant is entitled to receive the motion. Kahit na default
siya, bigyan mo siya. And proof of such failure. Is there an
answer? If there is, it should be attached to the record pero
wala man. The defendant is hereby declared in default.
Suppose the defendant files an answer in court but
he did not furnish a copy of his answer to the plaintiff. Under
the rules, everytime he files something in court, he must always
furnish the opposite party or the lawyer with a copy. That is a
requirement. But I failed. Can I be declared in default? There
was a case before where the SC said yes. Even if you file, the
filing is not deemed legal because the other party was not
served. But there were cases were the SC relaxed that. We
will not declare the defendant in default but we will order him
to furnish the other party a copy. Warning lang, ba. However
in the case of:
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 RAMIREZ vs. CA
187 SCRA 153
The SC said: The failure to furnish a
copy of the answer to the adverse party in
itself is sufficient and valid basis for
defendant’s default. So, strict na naman.
Here is an interesting question. Suppose, you are the
lawyer of the plaintiff and you will file a case against the
defendant and the defendant filed an answer. During the
trial, you were there together with your client. But the
defendant did not show up. And his lawyer, too was not
around. You checked the records and you learned that they
were validly notified. What will you do? You will not move that
the defendant be declared in default. Instead, you will move
that the trial will proceed without him. Para na ring in default,
di ba? Ikaw lang ang mag-hearing niyan. That is what you
call ex-parte reception of evidence. Only one side will be
heard. Under the law, when a defendant filed an answer but
failed to appear during the trial, you cannot move to declare
him in default. The law says that thereupon the court shall
proceed to render judgment granting the claimant such relief
as his pleading may warrant, unless the court, in its discretion
requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court. This is a
change in the new rules. Under the old rules, this is the
procedure:
1. motion to declare defendant in default
2. order of default
3. reception of plaintiff’s evidence ex-parte
4. judgment by default
Sa new rules, gi-short cut:
1. motion to declare defendant in default
2. order of default
3. judgment by default unless court requires presentation of
evidence ex-parte
In other words, wala ng reception. The court will say
daog ka na. The reception of plaintiff’s evidence is already
dispensed with. Whatever you say in your complaint is
admitted. But the court retains its discretion. The law says
unless the court, in its discretion requires the claimant to submit
evidence. So, reception of evidence ex-parte is not
mandatory. It is for the court to decide. And the new rule
says: Such reception of evidence may be delegated to the
clerk of court. So, ibigay sa clerk of court, bigyan ng report
ang judge for him to decide. Meaning, the court will no longer
hear you personally. Anyway, wala namang kalaban, eh.
Who will object? So, that is the modification introduced by
the new rules.
Now, when should the court dispensed with the ex-
parte presentation of evidence and when should it require the
claimant to submit evidence? There should be a uniform
policy here because discretionary nga. May ibang judges,
judgment kaagad. May iba, reception muna which will take
time. Bayaran mo pa ang stenographer. May commission fee
pa. Pag-decision kaagad, wala ka ng babayaran. To my
mind, my personal view, cases which are simple (we call
kasong de kahon) presentation of evidence ex-parte is no
longer required. Like collection cases ba. Walang laban ang
defendant talaga. But in controversial cases, like recovery of
a piece of land, mahirap yan. The judge will not automatically
decide in your favor simply because of failure to appear by
the defendant. The judge may still want to hear plaintiff’s
evidence. To my mind, that should be the policy although the
rules did not say that.
(a)Effect of order of default. - A party in default
shall be entitled to notice of subsequent
proceedings but not to take part in the trial. (2a,
R18)
The effect of default is that a party loses his standing
in court. He cannot take part in the trial. But the new rules
now require that he is entitled to notice of subsequent
proceedings. He is still notified about motions, notices. This
provision has reversed the previous rules. Under the ‘64 Rules, if
a defendant is declared in default, he is not entitled to take
part in the trial and as a general rule, he is not also entitled to
notice of subsequent proceedings. Precisely because he has
no more standing in court. But the new rules says otherwise.
Kaya nga, in the fourth year, I am emphasizing this because
what they learned is the old rule. Nakapako na yan sa ulo
nila. So, like a computer, ire-program.
(b)Relief from order of default. - A party declared
in default may at any time after notice thereof and
before judgment file a motion under oath to set
aside the order of default upon proper showing
that his failure to answer was due to fraud,
accident, mistake or excusable negligence and
that he has a meritorious defense. In such case,
the order of default may be set aside on such
terms and conditions as the judge may impose in
the interest of justice. (3a, R18)
Suppose a defendant failed to file an answer and he
was declared in default and now he has a copy of the order
of default. Mayroon siyang demanda but he did not
understand what it was all about. Pagtanggap niya, akala
niya puwedeng itago. Tinago niya so na-default siya. Tapos.
May tinanggap na naman siya. Order of default. Ano ito?
This time, kumuha siya ng lawyer. Attorney, unsa man ni?
Pirmero ito ang natanggap ko, sunod ito na naman. Tanong
ng lawyer: Did you see a lawyer? Wala. So, wala kay
answer? Wala. Ah, mao na. Na-default ka. So, what is now
your remedy?
Fraud, Accident, Mistake, Excusable Negligence
Your first probable remedy is par. (b). The remedy is
to file a motion to lift the order of default. Meaning, that the
order of default should be set aside and that you be given a
chance to file your answer. To restore your standing or
personality. so, after notice of default but before judgment (in
between steps 2 and 3), a motion to lift the order of default
must be filed. And what will be the justification? The probable
justification under the law is that he failed to file an answer due
to fraud, accident, mistake or excusable negligence. The key
word is FAME. I will not explain this because we will meet them
again in Rules 37 (Motion for New Trial) & Rule 38 (Petition for
Relief from Judgment).
And not only that, you must show in your motion that
you have a meritorious defense. You must say that if my
standing will be restored, I will file my answer and this is my
defense which is meritorious. Meaning, I have a chance to
win. Because even if you are a victim of FAME, if you have no
meritorious defense, the court will not lift the order of default.
Because you are a victim of FAME and yet you have no
meritorious defense, you are wasting my time. Kahit na
pagbigyan kita, eh, talo ka pa rin. There is no chance for you
to win anyway. There is no guarantee that you will win but at
least you have a fighting chance. That is if your standing will
be restored. And if you are able to convince the court on
these two grounds, then it may issue an order lifting the order
of default.
Partial default
(c)Effect of partial default. - When a pleading
asserting a claim states a common cause of action
against several defending parties, some of whom
answer and the others fail to do so, the court shall try
Page 97 of 296
 the case against all upon the answers thus filed and
render judgment upon the evidence presented. (4a,
R18)
This is what you call partial default. When will that
happen? Partial default can happen when there is more than
one defendant. X plaintiff files a case against 2 defendants A
and B. A filed an answer, B did not. X will move that
defendant B be declared in default. After that what
happens? Will there be a default judgment against B? The
answer is no. Under par. (c), the case will now go on trial
based on the answer filed by A. The case will be tried against
both A and B based on the answer filed by A. The answer filed
by the answering defendant will automatically benefit the
defaulted defendant or the non-answering defendant. The
answer filed by A will automatically inure to the benefit of B. In
effect, A will defend not only himself but also B.
Suppose A proves the defense that is also applicable
to B and the complaint of X is dismissed. What happens? Both
A and B will win the case. That is one instance where a
defaulted defendant can still win. Because it is awkward if you
say that only A should win and B should not because he was
declared in default. X filed a case against A and B based on
a promissory note. B was declared in default. A’s defense was
that the obligation was long paid. Suppose A was able to
prove that. Automatically, B is also freed from liability. If you
say that B should lose, then there would be 2 conflicting
decisions. B is in default, therefore, he should pay the loan.
Insofar as A, there is no more loan. How will you reconcile
that?
Now, in connection with this law on partial default,
we will cite some cases explaining this:
CO vs. ACOSTA
134 SCRA 185
A and B were sued on a loan
which they borrowed from X. X filed a case
against both of them. Defendant A filed an
answer. Defendant B did not and was
declared in default. The case went on trial
based on the efforts of A. What X did, he
moved to drop A from the case. Patay ka
ngayon B. So, he retained the defaulted
defendant. The issue is whether this can be
done when there are 2 defendants and
there is a common cause of action. One
will answer and the other will not. And the
plaintiff moved to drop from the case the
answering defendant, so that the defaulted
defendant would be liable>
The SC said it cannot be done.
When there is a common cause of action
against 2 or more defendants, if you drop
the case against one, you drop the case
against all. It cannot be selective.
Meaning, your cause of action against A is
weak, that is why you are dropping him. If it
is weak, necessarily, it is also weak against B.
How can it be strong against one and weak
against the other when there is only one
common cause of action.
The ruling in this case should not be confused with the
ruling in:
INGSON vs. CA (1997 Bar)
239 SCRA 58 (1994)
Ingson here was driving a Toyota
Corolla and it collided with a Heno diesel
truck. Because of the collision, Ingson was
seriously injured and his car was totally
wrecked. So, he filed an action for
damages, say, for P300T and he named 3
defendants: the owner of the truck, the
driver of the truck and the insurance
company. Here, the maximum coverage
of the insurance was only P70T. The
insurance company filed an answer but the
owner and the driver were declared in
default. Subsequently, Ingson and the
insurance company entered into an
amicable settlement where the latter paid
the former his insurance coverage
amounting to P70T. With that, the case
against the insurance company was
dismissed. So, natira ang owner of the truck
and the driver. Because of that
development, the owner of the truck also
moved to dismiss the case against him and
the driver by arguing that since all of them
are indispensable parties under a common
cause of action, the dismissal of the case
against the insurance company must also
result in the dismissal of the suit against all of
them citing the ruling in Co vs. Acosta. Is
that correct?
The SC said: To answer this
question, we have to answer 2 issues. First, is
there a common cause of action against
the 3 of them? Second, is the insurance
company an indispensable party? So that if
you remove the insurance company from
the case, the case cannot proceed against
the other defendants.
The SC said: He is wrong. Ingson
has a different cause of action against the
defendants in the case. Ingson seeks to
recover from the truck driver for his wrong
which caused injury to him and his car. The
cause of action against the driver is based
on quasi-delict under Art. 2178 of the Civil
Code because there is no contractual
relation between them. As to the owner,
the cause of action is also quasi-delict but
based on Art. 2180 of the Civil Code. (You
will meet these in the study of torts and
damages.) The cause of action against the
insurance company is based on contract.
He seeks to recover from the insurance
company on the basis of a third-party
liability clause of its insurance policy with the
owners of the truck. Therefore, you cannot
say there is a common cause of action
because it is anchored on different basis.
As to the second issue, the SC
said: It is true that all of Ingson’s claims in
the civil case is premised on the wrong
committed by the defendant truck driver.
Concedingly, the truck driver is an
indispensable party. The other defendants
however, cannot be categorized as
indispensable parties. They are merely
necessary parties to the case. It is easy to
see that if any of them had not been
impleaded as defendants, the case would
still proceed without prejudicing the party
not impleaded. Thus, if Ingson did not sue
the insurance company, the omission will
not cause the dismissal against the others.
Even without the insurance company, the
trial court would not lose its competency to
act completely and validly on the damage
suit. The insurance company clearly is not
an indispensable party in the civil case.
Page 98 of 296

The case of Ingson was asked in the 1996 bar, two
year ago. I picked 16 cases for the examinees to review, and
2 of them came out. One of them is the case of Ingson.
(d)Extent of relief to be awarded. - A judgment
rendered against a party in default shall not exceed
the amount or be different in kind from that prayed
for nor award unliquidated damages. (5a, R18)
Limitations on default judgments
This par. (d), we can call them the limitations on
default judgments. There are supposed to be 3 limitations. A
default judgment:
(1) shall not exceed that
prayed for in the complaint;
(2) should not be different in
kind from the relief prayed for
in the complaint; and
(3) should not award
unliquidated damages.
In your complaint, you are claiming for damages in
the amount of P300T. The defendant was declared in default.
And we will assume that before rendering judgment, the court
required plaintiff to present his evidence. The plaintiff was able
to prove that the damages reached P500T. Can the court
render a judgment for P500T? no, everything must be limited
to P300T, the amount stated in the complaint.
Suppose, during the reception of evidence, the
plaintiff who was claiming P300T, was only able to prove P200T,
what will be the default judgment? It will be P200T because
that is what he proved and it is based on what the plaintiff has
established. So, in a default judgment, the award can never
go higher than what you said in your complaint. It can go
lower but never higher.
Now, what do you think is the principle behind that?
Well, you have to analyze the reason behind default. The
defendant is declared in default for failing to file an answer
within the required period. And now, you ask yourself, if a
defendant is informed about the case and he is given the
complaint and no answer is filed within the deadline, let us try
to speculate what are the possible reasons why no answer was
filed. There must be a reason. What could be his reason or
motive? It could be that defendant deliberately did not file an
answer. Either he knows he has no defense or the claim is fair.
Bakit pa ako maglaban wala naman akong laban? In other
words, he is willing to accept the amount of the claim. So,
that’s one. Another possible reason is it could be that while he
may want to file an answer because he believes he has a
good defense, but for reasons beyond his control, somehow,
he failed to file an answer. So, either lalaban siya but
something happened kaya hindi siya nakasagot, or,
talagang ayaw niyang magsagot. So, these are the only two
possible reasons. Wala namang iba, ba.
Let us look at the second option. He wants to file an
answer, he has a meritorious defense but for reasons not
attributable to him, he failed to file an answer. Now, what is
the remedy of the defendant in such a situation? The remedy
is found is par. (d). He can file a motion to lift the order of
default alleging that his failure to file an answer is because of
fraud, accident, mistake or excusable negligence. Those are
circumstances which are beyond his control. So, fraud,
accident, mistake or excusable negligence and he has a
meritorious defense. If he can prove that, the court may say:
Alright, we will lift the order of default. You may file your
answer. That is the remedy.
In the first situation, deliberately he did not answer.
Then, in that situation, the law guarantees that the default
judgment will not exceed the amount or be different in kind
from that prayed for. At least, hindi ka (defendant) mabigla.
Here, I received a complaint for P300T, tapos when the default
judgment comes, the award is P3M! That would be unfair. So,
there is an assurance. You can rest assured that the default
judgment cannot exceed the amount or be different in kind
from that prayed for.
Ex-parte reception of evidence
Judgment against a defendant
based on evidence presented ex-
parte pursuant to a default order
vs.
Judgment based on evidence
presented ex parte and against a
defendant who filed an answer
but failed to appear during the
hearing
There are two situations where the procedure for
default seem to be identical as I have said before. One
situation is you are declared in default and then the court will
require plaintiff to present evidence before deciding. That is
one option under Sec. 3. That is what you call ex-parte
reception of plaintiff’s evidence. But we also said when we
were discussing the first part of Sec. 3, what happens if the
defendant filed an answer but during the trial he failed to
appear? He cannot be declared in default because he filed
an answer but the trial will proceed without him. Meaning,
reception of plaintiff’s evidence ex-parte. Kahawig ng
default. But there is a difference between the two situations.
What is the difference when a judgment is rendered against a
defendant, a default judgment after the presentation of
evidence ex-parte and a judgment is rendered against a
defendant after presentation of evidence ex-parte but not
because of default but for failure to appear during the trial?
According to the SC, in the case of:
MANGELEN vs. CA
215 SCRA 230
The provisions of par. (d) that a
judgment rendered against a party in
default shall not exceed the amount or be
different in kind from that prayed for
applies only to default judgments. It does
not apply in a situation where there was an
ex-parte presentation of evidence for failure
of the defendant to appear during the trial
although he filed an answer. This provision
cannot apply to that situation.
The SC said: There is a difference
between a judgment against a defendant
based on evidence presented ex-parte
pursuant to a default order and one based
on evidence presented ex-parte and
against a defendant who filed an answer
but failed to appear during the hearing. In
the former, this provision (on par. (d))
applies to him. In the latter, the award may
exceed the amount or be different in kind
from that prayed for.
In other words, this provision applies to judgments in
default and not to the second situation where there was
reception of evidence ex parte based on defendant’s failure
to appear during the trial although he filed an answer.
Now, under the 1997 Rules, they added a third
limitation. Nor award unliquidated damages. Under the 1967
Rules, the only limitations on default judgment are (1) it shall
not exceed the amount; or (2) it shall not be different in kind
Page 99 of 296
from that prayed for. Period. Sa ngayon, dinagdagan. So, (3)
default judgment cannot award unliquidated damages. So,
tatlo na.
This is one provision which I was discussing last
September in Manila with a member of the committee which
drafted the new rules, the Secretary of the Committee, Daniel
Martinez. I asked him: Danny, bakit dinagdagan man yan?
Sabi niya, That is the idea of the chairman, Justice Feria. Bakit
niya dinagdagan? Sabi ni Feria, kawawa naman yung
defaulted defendant. In default na nga, kargado pa ng
katakot-takot na damages. I do not agree with that, I said.
The two limitations are tama na. This is crazy. Why? I will give
you an example: Suppose you will file a complaint against me
for purely damages - moral damages for P1M. Unliquidated
man yan, ba. Gagawin ko, pa-default ako. Pagnagpa-
default ako, hindi ka maka-award even one centavo. So, why
will I file an answer? If I file my answer, baka matalo pa ako so,
magpa-default na lang ako. That is tantamount to paralyzing
the plaintiff. That is the effect of the amendment. Kaya yung
unang provision, tama na sana yun.
Whether that is how the SC will interpret such
provision, we do not know. But that seems to be the
implication. It is wiser for the defendant’s lawyer not to file an
answer if the action is purely for damages. Because once he is
in default, there is no way for you to get a single centavo from
your cause of action. That is the effect. That is my criticism of
the amendment. That is for you to think about.
(e)Where no defaults allowed. - If the defending party
in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to
investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene
for the State in order to see to it that the evidence
submitted is not fabricated. (6a, R18)
Well, you are familiar with these types of cases in the
Family Code between husbands and wives. Under the rules,
there is no default judgment in these types of cases.
Otherwise, without this provision, husband and wives can easily
secure a nullity of their marriage. For example, husband and
wife. Sabi ng husband: O sige, hiwalay na tayo. O, sige,
hiwalay tayo. Ganito, ha, I will file a case against you for
annulment of marriage. And then, huwag kang mag-answer
ha? Naloko na. So, pag-default, presentation of evidence ex-
parte. Wala ka man. So, the marriage is annulled. Tapos! In
other words, annulment of marriage becomes very easy.
Puwede palang mag-usap ang husband and wife. That is not
the intention of the law. The spirit of the family code is to
preserve the sanctity of marriage. Kaya nga in the case of
Molina (bago lang yan, last year), the guidelines outlined by
the SC in psychological incapacity are so hard that it is
impossible to annul a marriage citing that ground. So, the law
prohibits default judgment in these types of cases. Now, you
correlate this with certain provisions of the Family Code which
are related, Art. 48 and Art. 60.
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order
the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to take
care that the evidence is not fabricated or
suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
Art. 60. No decree of legal separation shall be
based upon a stipulation of facts or a confession of
judgment.
In any case, the court shall order the
prosecuting attorney or fiscal assigned to it to take
steps to prevent collusion between the parties and
to take care that the evidence is not fabricated or
suppressed.
The language in both provisions is almost the same.
So, even without collusion, if defendant failed to file an
answer, still the court will require the government to step in to
see to it that the evidence submitted is real. Lalo na kung may
collusion. So, judgment on these cases is really based on the
merits not on agreements, stipulation of facts, confession of
judgment, or even defaults.
End of Rule 9.
Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
What do you understand of the word amendment?
Change, ba. Any change, ha. Even if you remove just one
letter or a word, even if you just correct a spelling, that is
already an amendment by itself. You add one word. That is
also amendment.
Sec. 1. Amendments in general. -
Pleadings may be amended by adding or
striking out an allegation or the name of any
party, or by correcting a mistake in the name
of a party or a mistaken or inadequate
allegation or description in any other respect,
so that the actual merits of the controversy may
speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner. (1)
So, you amend by adding or striking out an
allegation. Or, the name of a party. You remove a party, you
add a party, that is an amendment. You correct a mistake in
the name of a party, you correct a mistake or inadequate
allegation or description of anything, it is still called an
amendment. Defendant, for example, ay si A lang. Tapos,
dinagdagan ko ng isa pang defendant, si B. That is an
amendment. As a matter of fact, there is already one
provision where we touched on this type of amendment. That
is Rule 1:
Sec. 5. Commencement of action.- A civil
action is commenced by the filing of the original
complaint in court. If an additional defendant is
impleaded in a later pleading, the action is
commenced with regard to him on the date of the
filing of such later pleading, irrespective of
whether the motion for its admission, if necessary,
is denied by the court.
In other words, I file a complaint today against
defendant A and then next month, February, I will file a later
pleading where I will include B. That later pleading is actually
an amended complaint. Now, when is the action deemed
commenced against the party? According to Rule 1, Sec. 5,
as far as A is concerned, the action is deemed commenced
as of today. But for B, the action is commenced not upon the
filing of the original pleading but upon the filing of the
amended pleading. That is actually an amendment of a
pleading, by adding an additional defendant. So, that is also
related to Rule 10.
Page 100 of 296
 Now, the question is: Are amendments allowed or
disallowed? They are allowed. And what is the policy or the
rule on amendment? Should it be encouraged or should it be
discouraged? I want to amend my complaint. I will change
my cause of action, say, from culpa contractual to culpa
aquiliana. Or vise-versa. Or, I will file an answer. Ito ang
depensa ko. Ah, hindi. Palitan natin ang depensa. Kambiyo-
kambiyo, ba. If a party wants to amend his complaint or his
answer, should the court allow it as a matter of policy? What is
the philosophy on the law on amendment?
The law says amendments should be allowed
liberally. That is why Sec. 1 says : x x x so that the actual merits
of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and
inexpensive manner. That provision of the rules is actually
taken from SC decisions. According to SC, amendments to
pleadings are favored and should be liberally allowed in
furtherance of justice in order to determine every case as far
as possible on its actual merits without regard to technicalities
to speed up the trial of cases and to prevent unnecessary
expenses.
Because when a party amends a pleading,
obviously, his lawyer discovered that this is the correct cause
of action or defense. Siguro pag-file niya, hindi pa
masyadong klaro ba but after careful study, ito pala ang
tama, eh. So, he will have to amend. Bakit mo siya pigilan? If
you will prevent him from amending, you are practically
preventing him from presenting his case correctly. That is why
the philosophy of the law is that amendments as much as
possible should be allowed. And that is expressed in Sec. 1 of
the Rules.
Types of amendments
1. formal vs. substantial
2. amendment as a matter of right vs.
amendment as a matter of judicial
discretion
Now, what are the types of amendments? Under the
rules, an amendment can be a formal amendment as
distinguished from substantial amendment. Another
classification is amendment as a matter of right as
distinguished from amendment as a matter of judicial
discretion.
Amendment as a matter of right vs. Amendment as a matter of
judicial discretion
When you say amendment as a matter of right, the
party has the absolute and unconditional right to amend his
pleading. The court cannot disallow. The other party cannot
oppose. Right, eh. When you say amendment is a matter of
judicial discretion, the court may or may not allow the
amendment. In which case, the other party is given the
option to oppose the amendment.
Well, of course the other type of classification is an
amendment could be formal in nature or substantial in nature.
Let us go to first to this question. When is an amendment a
matter of right? Meaning, I can amend my pleading and
there is no way for you to prevent me from doing it. It is
answered by Sec. 2:
Sec. 2. Amendments as a matter of right. -
A party may amend his pleading once as a
matter of right at any time before a responsive
pleading is served or, in the case of a reply, at
any time within ten (10) days after it is served.
(2a)
SIASOCO VS CA
303 S 186
Where some but not all, have answered,
the plaintiffs may amend their complain
once, as a matter of right in respect to
claims asserted solely against the non-
answering defendants, but not as to claims
asserted against the other defendants.
So, a party can amend his pleading once at any
time before a responsive pleading is served. I will file a
complaint against you. What is the responsive pleading there?
Answer. For as long as you have not yet filed in court or served
a copy of your answer, I can always amend my complaint
and you cannot prevent me from doing it. Even if the
amendment is 100% radical. Whether the amendment is
substantial or not, my right to amend is 100% absolute.
How about in an answer, can a defendant amend
his answer as a matter of right? Yes, for as long as no reply has
yet been filed or at least during the period within which to file
a reply because a reply may or may not be filed.
Now, let us go to a third situation. Can a plaintiff
amend his reply (assuming he filed a reply) as a matter of
right? Yes, but you cannot say at any time before a
responsive pleading is served because there is no more
responsive pleading to a reply. Well, the law says, in the case
of reply, amend it at any time within ten (10) days after it is
served. Meaning, if I file my reply, the next 10 days, I can
always change my reply whether substantial or not. So, the
right to amend is 100% absolute. Substantial amendment of
pleadings is always a matter of right for as long as the other
party has not yet filed any responsive pleading.
The other type of amendment which is also a matter
of right is when the amendment is merely formal because
there is no harm done. Formal man lang. You can do that at
any time. And that is found in Sec. 4.
Sec. 4. Formal amendments. - A defect in the
designation of the parties and other clearly clerical
or typographical errors may be summarily corrected
by the court at any stage of the action, at its initiative
or on motion, provided no prejudice is caused
thereby to the adverse party. (4a)
So, formal amendments include a defect in the
designation of the parties, clearly clerical or typographical
errors, wrong spelling. It may be summarily corrected at any
stage of the action even in the middle of the trial. There is
nothing wrong if you correct a wrong spelling provided no
prejudice is caused to the adverse party. So, when is an
amendment a matter of right? First, at any time before a
responsive pleading is served; secondly, when it comes to
formal amendments, at any stage of the action.
Suppose, the amendment is substantial and there is
already an answer. I filed a complaint. You filed your answer
with your defenses. Now, I will amend my complaint and the
amendment is substantial. That is already covered by Sec. 3.
The amendment is a matter of judicial discretion because
there is already a leave of court. So, Sec. 3 applies to
amendments which are a matter of judicial discretion and the
amendment here is obviously substantial.
Sec. 3. Amendments by leave of court. -
Except as provided in the next preceding section,
substantial amendments may be made only upon
leave of court. But such leave may be refused if it
appears to the court that the motion was made with
intent to delay. Orders of the court upon the matters
provided in this section shall be made upon motion
filed in court, and after notice to the adverse party,
and an opportunity to be heard. (3a)
Page 101 of 296
 Take note, ha. When there is already a responsive
pleading, substantial amendments may be made only upon
leave of court as a matter of judicial discretion. Like for
example, I will change my cause of action or I will change my
defense. That is what you call substantial. This time, I have to
file a motion in court to allow me to amend. The opposite
party is furnished a copy of the motion and a copy of my
proposed amendment and he has the right to object to it.
And the court will now determine whether it should allow the
amendment or not. Assuming that there is such a motion, the
amendment is substantial because there is a change in the
cause of action or defense, and the defendant we assume is
opposing such amendment, in case of doubt (there is seems
to be a ground for amendment. Or, there seems to be none.)
How will the court exercise its discretion? Allow the
amendment or deny it?
The answer is you go back to Sec. 1. Liberality.
Amendments of pleadings are favored. They are always
favored so that the real merits of the controversy may really be
ventilated. So, if you file a motion that you are amending your
complaint or answer, and we will assume that the other party is
opposing, liyamado ka. Seventy to 80%, the court will allow
the amendment because of the principle of liberality which is
stated in the rules.
Limitations to rule on liberality in allowing amendments
But there are limitations. Look at the second
sentence: But such leave may be refused it if appears to the
court that the motion was made with intent to delay.
Meaning, the amendment is dilatory. Give an example of
dilatory amendment. I will file a case against you based on a
certain cause of action. Answer ka. Trial. Tapos, yung kaso,
malapit nang matapos, so, it is about to be terminated. Then
sabi ng plaintiff: Your Honor, I will amend my complaint. My
golly. I don't think the court will allow that. Bakit ngayon ka pa
mag-amend? That is dilatory. If allowed, we will practically
start all over again because you have completely change
your cause of action. So, the possibility of getting an
amendment is very big lalo na pag hindi pa nag-umpisa ang
kaso. Even if we already have started, pwede pa rin. But if
the case had been dragging for years, tapos, hihingi ka ng
amendment, I don’t think the court will allow that. That is
dilatory and one of the limitations on the liberal policy of the
rules in allowing an amendment.
Actually, there are other limitations not found in the
rules. When amendment of pleadings not allowed based on
decided cases:
1. The amendment is not for the purpose of making the
complaint confer jurisdiction upon the court.
Another way of saying it, jurisdiction of the court over
the subject matter cannot be conferred by amending the
complaint. Suppose A will file a case against B to collect an
unpaid loan of exactly P100T in Davao City, in what court will A
file the complaint based on the judiciary law? MTC, di ba.
Halimbawa, yung abogado nagkamali. Akala niya P100T, RTC
so doon niya na-file sa RTC. If you are the defendant you will
move to dismiss the case because the RTC has no jurisdiction
over the subject matter. It should be in excess of P100T. So,
realizing na mali, the plaintiff amended the complaint.
Dinagdagan ng piso. So, P101T na, di RTC na. Above P100T
na, eh. Under this doctrine, you cannot do that. Why?
Because you are filing an amended complaint to confer
jurisdiction when actually in the original complaint, the court
had no jurisdiction. An amendment cannot confer jurisdiction.
What is the reason behind that? According to the
SC, when on its very face the court as no jurisdiction over the
subject matter, (because jurisdiction cannot be conferred by
silence), even the court can dismiss the complaint
immediately. When the court has no jurisdiction, what does
that mean? The court cannot act on that case. It has no
authority, di ba? But if you will amend the complaint and you
will make it P101T, the court has to allow the amendment. It
has to admit your amended complaint. But if it does admit the
amended complaint, it assumes that it has the authority to act.
If it has no authority to act, still it has no authority even to
accept the amended complaint. To admit the amended
complaint assumes that it has the authority to admit. But it has
no authority precisely to act so how can the court admit it?
Sabi ng SC: When on its very face, the complaint
shows that the court has no jurisdiction over the subject matter
of the action, the court has only one authority, and its only
authority is to dismiss the case. That is the principle. The court
cannot act beyond that. That is why an amended complaint
cannot confer jurisdiction. So, that is a decided case and not
found in the rules.
Another decided case where the SC said an
amendment cannot be allowed is:
2) that the amendment is not for the purpose of curing a
premature or non-existing cause of action.
If the cause of action is non-existent, the case should be
dismissed. So, no amount of amendment can create
something out of nothing. There was one bar examination
where the question was: Distinguish a non-existent cause of
action from an imperfect cause of action. The difference is in
a non-existent cause of action, there is yet no delict or wrong
committed by the defendant, whereas, in an imperfect cause
of action, a delict or wrong has already been committed and
alleged in the complaint but the presentation of the cause of
action is incomplete. A non-existent cause of action is not
curable by an amendment whereas an imperfect or
incomplete cause of action is curable by amendment. May
cause of action kaya lang masama ang pagka-present. So,
pagandahin natin. Kung non-existent, talagang wala. You
cannot create one out of nothing. So, it is not curable by an
amendment.
3) that the amendment is to delay the action.
MARINI-GONZALES VS LOOD
148 S 452
Ruling: Where the Rules of
Court authorizes the courts to disallow
amendment of pleadings when it
appears that the same is made to
delay an action or that the cause of
action or defense is substantially
altered thereby the rule is not absolute
it is discretionary.
Courts are not precluded from allowing amendments
of pleadings even if the same will substantially change the
cause of action or defense provided that such amendments
do not result in a substantial injury to the adverse party. This is
due to the permissive character of the said rule. In fact, this
court has ruled that amendments to pleadings are favored
and should be liberally allowed in the furtherance of justice.
RECAP
Summarizing what we discussed last night, under the
rules, amendment of pleadings is favored. They should be
liberally allowed in furtherance of justice so that the real merits
of the case can be ventilated without regard to technicalities.
There are two ways of classifying an amendment: (1)
Amendment which is a matter of right vs. Amendment which is
a matter of judicial discretion. (2) Formal amendment vs.
substantial amendment. Amendment is a matter of right when
the party has the absolute and unconditional right to amend
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the pleading and he cannot be prevented from doing it.
Amendment is a matter of judicial discretion means that the
court has to allow. So, the court may deny the amendment or
the other party is given the chance to oppose. First,
amendment as a matter of right is found in Sec. 2. A party
may amend his pleading once as a matter of right at any time
before a responsive pleading is filed by the other party. And if
the pleading is one to which no responsive pleading is allowed
like a reply, under Sec. 2, you may amend it at any time within
ten (10) days after it is served. Second, formal amendments
can also be made as a matter of right at any time, at any
stage of the proceeding because under Sec. 4, you’re only
correcting a defect, the designation of the parties, or other
clearly clerical or typographical errors. Nobody is prejudiced
with the amendment.
When is amendment a matter of judicial discretion?
(1) it must be substantial and (2) the adverse party has already
served his responsive pleading. I filed a complaint, you alreay
filed your answer. I already have a copy of the answer. I want
to amend my complaint. This time, it is already a matter of
judicial discretion. Of course, if it is a matter of judicial
discretion, the court has to agree but as I said because of the
liberal policy of the rules, chances are, the court will grant it
because amendment of pleadings is favored.
Although there are limitations. And one of the
limitations is if the amendment is dilatory in nature as found in
Sec. 3. The other limitations which are not found in the rules
but governed by jurisprudence are: 1) if the purpose is to
confer jurisdiction upon the court where the original complaint
shows on its face that the court has no jurisdiction. 2) An
amendment should not be allowed if the intention is to cure a
non-existent or premature cause of action as distinguished
from a cause of action which is merely imperfect. An
imperfect cause of action can be cured but a non-existent
cause of action cannot be cured by an amendment.
Amendment in criminal cases
Now, in criminal procedure, there are also rules (Rule
110) on how an information or a complaint can be
amendment. If you still recall, there also distinctions. When is
an amendment of an information by the prosecution a matter
of right and when is it a matter of judicial discretion? The rules
on criminal procedure also distinguished between a formal
amendment of an information and a substantial amendment.
Here is a very nice question: Distinguish the rules on
amendment of complaints or pleadings in civil cases from the
rule on amendment of information or complaints in criminal
cases under Rule 110. Let us try to relate. Can the prosecution
under the rules on criminal procedure amend the complaint or
the information? Yes, it is allowed. Is it a matter of right or a
matter of judicial discretion? When is an amendment of a
criminal complaint or information a matter of right? In civil
cases, at any time before a responsive pleading is filed or
served. You cannot say that in criminal cases because there is
no responsive pleading in criminal cases. So, what is the rule?
Yes, at any time before he enters his plea. Yung plea, yun ang
answer. That is the responsive pleading. Same, no? Kahawig.
At any time before the accused enters his plea, the
prosecution can amend the information in substance and in
form. That is why, if you are charged with homicide and you
are not yet arraigned, the prosecution can amend that to
murder.
After the accused has already entered his plea,
either guilty or not guilty, is amendment of the information still
a matter of right or no more? Only as to form, it is a matter of
right but as to substance never. And that is the difference.
Unlike in civil cases, as to substance, pwede pa. As to form,
any time, it is a matter of right. But in criminal cases, after the
arraignment, as to form puwede pa but never 100% as to
substance. Substantial amendments are totally prohibited.
Kaya kailangan, you have to compare the rule on
procedure in criminal cases and the rule on procedure in civil
cases. In the study of the law, you study the entire forest. You
do not look only at the trees. Yun bang you see the provisions
as they come one by one. Pero hindi mo nakikita yung
nakadikit ba. In Rule 10, for instance on civil procedure, meron
din akong nadaanan on rules on amendment sa first semester
in criminal cases. Ah, ganito pala ang kaibahan. You start
comparing, ba. In other words, you start comparing it with
another subject that you already took up. You go back. You
broaden your knowledge and look at the entirety of the forest.
That is what is called a macro viewpoint. Hindi yung parang
kabayo. Diyan lang nakatingin. Nakita mo ito pero hindi mo
nakikita ang iba. That is a micro viewpoint. One of the
faculties that a law student should develop if he wants to pass
the bar is to develop a macro viewpoint. that is precisely the
purpose of the review in the fourth year. They are looking at all
things. You have to connect that with all the other subjects
that you have taken up.
Prescriptive period:
Date of filing of original complaint vs.
Date of filing of amended complaint
Now, let’s go to other principles in amendment that
are relevant to our study. Suppose, I will file the complaint
today, January 7, 1998 and then I will amend my complaint
next month, February 7, 1998. So, the original complaint is filed
today and the amended complaint is filed next month. My
question is this: You know very well that an action can be
barred by prescription, di ba? A right of action can disappear
because it is filed out of time. My question is this: The
prescriptive period to file the case is January 17, the last day to
file the complaint. When I filed the complaint today, that is
within the prescriptive period. And then, I will amend it next
month which is beyond the prescriptive period. What is the
reckoning point to determine whether prescription has been
met or not? The date of the filing of the original complaint or
the date of the filing of the amended complaint? That was
asked in the bar.
For the purpose of determining whether the
prescriptive period of an action has been met, what is the
reckoning point to determine? the date of the filing of the
original complaint or the date of the filing of the amended
complaint? Because based on my example, if the prescriptive
period is deemed interrupted upon the filing of the original
complaint, walang problema. Because even if I will amend
my complaint on February 7, ang importante ay na-file ko na
nung January 7. But if you say the reckoning period is the date
of the filing of the amended complaint, then, by the time you
amend it, the action has prescribed because the prescriptive
period was January 7. So, which is which? That was asked in
the bar.
The answer is it will depend on the nature of the
amendment. If the amendment introduces a new and
different cause of action, meaning the cause of action in the
original complaint is completely different from the cause of
action in the amended complaint, the statute of limitations,
meaning, the prescriptive period is interrupted as to this new
cause of action on the date of the filing of the amended
complaint. So, the prescriptive period is deemed interrupted
as of February 7, not January 7. On the other hand, if the
amendment merely completes an imperfect cause of action
but the cause of action remains the same, it has not been
changed, then, the plea of the statute of limitations relates
back to the date of the filing of the original complaint.
Meaning, everything retroacts on the date of the filing of the
original complaint. In other words, is the cause of action
completely new or not?
I will file today against you a complaint for damages
based on the theory on culpa contractual. That I was a
Page 103 of 296
passenger in the vehicle where I was injured. We will assume
that the prescriptive period is January 15. So, it is still one week
earlier. On February 7, I will amend my complaint.
Halimbawa, the action that I filed against you now is damages
arising from culpa aquiliana. I was a passenger, binangga mo
ako. Feb. 7, palitan ko. Damages pala arising from culpa
contractual. That amendment is entirely a new cause of
action. From culpa aquiliana to culpa contractual. Therefore,
insofar as in determining whether the case was filed on time,
the computation of the prescriptive period is Feb. 7 which is
the date of the filing of the amended complaint.
But suppose I will file a case against you now for
damages arising from culpa aquiliana and my claim is P1M
and then next month, I will amend. Hindi pala P1M, P2M pala.
Now, did I change my cause of action? It is only the amount
of damages which I would like to recover is changed but I
never changed my cause of action. Therefore, the action was
deemed filed as of Jan. 7. Everything retroacts on the date of
the filing of the original complaint. So, remember that
principle. That was already asked in the bar. What is the
reckoning point in determining the prescriptive period.
Sec. 5. Amendment to conform to or
authorize presentation of evidence. - When issues
not raised by the pleadings are tried with the
express or implied consent of the parties, they shall
be treated in all respects as if they had been
raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues
may be made upon motion of any party at any
time, even after judgment; but failure to amend
does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground
that it is not within the issues made by the
pleadings, the court may allow the pleadings to be
amended and shall do so with liberality if the
presentation of the merits of the action and the
ends of substantial justice will be subserved
thereby. The court may grant a continuance to
enable the amendment to be made. (5a)
What is the rule we have learned in Rule 9, Sec. 1?
May issues not raised in the pleadings be proven in the course
of the trial? Let us read the first sentence: Defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. Going back to the question,
may the court try an issue during the trial which was not raised
in the pleadings? You cannot because the court has no
jurisdiction over the issue.
For example in a collection case, the defendant in his
answer never raised the affirmative defense of payment,
based on Sec. 1 of Rule 9, during the trial, he cannot present
evidence to prove payment because he did not raise it. The
court cannot acquire jurisdiction over that issue. The answer is
Rule 9, Sec. 1.
Now, that is the rule. But is there an exception to that
rule? Yes, Sec. 5, Rule 10 which is a relaxation of that general
rule that defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.
Because Sec. 5 says: when issues not raised by the pleadings x
x x. In other words, it is the direct opposite of what Rule 9, Sec.
1 says. No raised in the pleadings are tried. Normally, they
cannot be tried. But they are tried. Why? With the express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. So,
based on that provision, can the court try an issue not raised in
the pleadings? Yes, if it was tried by express or implied consent
of the parties, then it is as if it had been raised in the pleadings.
So, if for example, the answer of the defendant never
raised the affirmative defense of payment, but before the trial,
sabi ng defendant: Ang defense ko payment. Pero wala sa
answer niya. Sabi ng court: Okay. Fight kayo diyan. Eh, di
waived na. So, the issue of payment can now be resolved.
Why? Because of express consent of the parties.
Or, implied consent. Example: The defendant in the
course of the trial, attempted to prove payment. He presents
receipts. Plaintiff should object, di ba? Di puwede yan. You
cannot prove payment. That is not raised in your answer. He is
citing Sec. 1. But suppose, pinabayaan niya. He did not
object. He even presents evidence. Hindi, wala pang bayad
yan. Practically, when he entered into that, he has already
waived Sec. 1 of Rule 9. So, the issue of payment can now be
tried because of express or implied consent of the parties.
They shall be treated as if they had been raised in the
pleadings. As if, even when actually they were not raised. So,
what is the fundamental basis for this provision, this exception?
Estoppel. The parties had already estopped because they
already agreed impliedly or expressly.
So, the court will now render a decision after trial. In the
decision, the court will discuss the evidence on the issue of
payment. Therefore, kabang. Ang decision hindi mag-tally sa
pleading. Kung basahin mo ang complaint, wala man ang
payment dito. The issue of payment was never raised by the
parties. But if you read the decision, the court resolved the
case on the issue of payment. So, the decision will not jibe
with the pleading. So, what is the remedy? According to Sec.
5, the remedy now is to amend the pleading to conform to the
evidence. Meaning, let us amend the answer so that it will
reflect the issue of payment which is the basis of the judgment.
The law says x x x such amendment of the pleadings as may
be necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any party
at any time, even after judgment. Para ang CA hindi ma-
surprise. Kasi, in case of an appeal, the CA would wonder
wala namang issue on payment and yet the lower court
discussed on the issue of payment. So, to conform, amend the
pleading. Para ma-harmonize.
And the pleading can be amended even after
judgment, ha. Normally, the evidence during the trial should
conform to the pleadings under Rule 9, Sec. 1 because
defenses not raised in the answer are deemed waived. Ito,
baliktad. It is the pleading that is going to conform to the
evidence by amending.
Now, suppose the parties never bothered to amend
their pleading. Meaning, the pleading did not reflect that
issue. Never mind. The judgment is still valid. Because the law
says failure to amend does not affect the result of the trial of
these issues. Even if you will not amend your pleading, there is
a valid decision on that issue. If the plaintiff will not be quick,
because for failure to object, an issue raised in the pleading
will now be tried because of the implied consent.
Suppose, mabilis ang plaintiff. Magaling ang
abogado. Pag-present ng evidence of payment, objection
was made. So, no implied consent. And the objection is
proper. The objection will be sustained by the court. Pero the
defendant insists. Your Honor, after we filed the answer, we
realized that the utang has already been paid. We have the
receipt showing payment. It would be very unfair that the
defendant will be barred from presenting the issue of
payment. Otherwise, the plaintiff would be paying twice. So,
at this stage, your Honor, we are asking that we be allowed to
amend our answer so we can raise payment. Should the court
allow the amendment at that stage?
The law says yes. Look at the next sentence: If
evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so with liberality if
the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.
Page 104 of 296
Again, the liberality of the rules on amendment of pleadings is
apparent. So that the real issues will come out in court . So,
kung talagang yan ang depensa mo, you did not raise it, I will
allow you to amend your answer. Ito ang tinatawag na
equity.
That is why, to my mind, a judge who knows his
procedure can never be wrong on whatever ruling he makes.
Example: Mr. Lopoz, for the plaintiff, is handling a case in my
sala. I am the judge. And the opposing counsel is Mr. Mayor.
The case is collection of a loan. The defense of payment was
not raised in the answer. And here comes Mr. Mayor proving
payment. Lopoz will make the objection following Rule 9, Sec.
1. A defense not raised in the answer is deemed waived. I will
sustain his objection. Is my ruling correct? Yes, tama man ba.
but si Mayor, hindi lang Rule 9 ang nakikita niya kundi pati Rule
10, Sec. 5. Your Honor, may we be allowed to amend our
answer where we are going to raise the defense of payment?
He is invoking Rule 10, Sec. 5? Tapos, Lopoz will make his
objection. We will not agree for him to amend. Ako ang
Judge: Mr. Lopoz, is it your position that the loan was not
paid? Lopoz: Yes, Your Honor. Yung sinasabi niyang
payment, kalokohan yan. Then, why are you afraid? Anyway,
he cannot prove it. We will allow the amendment. Tapos,
sasabihin ni Lopoz: Actually, Your Honor, bayad man talaga,
ba. Kaya lang, hindi niya ni-raise. Mr. Lopoz, you are in bad
faith. The purpose of the law is to give justice. Talo ka pa rin
kahit anong liko. Meaning, if I rule in your favor under Rule 9,
tama ako. If I rule in his favor, tama pa rin ako. in other words,
if I know how to use the rules, I can be right in my ruling. that is
how you apply the Rules of Court.
The last sentence: The court may grant a
continuance to enable the amendment to be made.
Continuance is parang postponement. If the court says we will
allow Mr. Mayor to amend his answer, so, we will postpone the
trial. Mr. Mayor, you are given 10 days to amend your answer
and then we will proceed with the trial. There is postponement
to allow you to amend so you can prove your defense.
We will now go to the second part of the Rule -
Supplemental pleadings.
Sec. 6. Supplemental pleadings. -
Upon motion of a party the court may, upon
reasonable notice and upon such terms as
are just, permit him to serve a supplemental
pleading setting forth transactions,
occurrences or events which have
happened since the date of the pleading
sought to be supplemented. The adverse
party may plead thereto within ten (10)
days from notice of the order admitting the
supplemental pleading. (6a)
What does a supplemental pleading contain? A
supplemental pleading according to sec. 6, sets forth
transactions, occurrences or events which have happened
since the date of the pleading sought to be supplemented.
Meaning, complaint, supplemental complaint. Original
answer, supplemental answer.
The basic bar question in this portion of the Rules, the
most basic, the most fundamental and often asked in the bar
is distinguish amended pleadings from supplemental
pleadings. Of course, in both pleadings, there is an original, di
ba. When you say pleading, it applies to complaint or answer.
The distinctions are;
1. An amended pleading may raise
transactions, occurrences or events
which already happened at the time
the original pleading was filed but which
the pleader failed to raise in the original
pleading because of oversight or
inadvertence, whereas, a supplemental
pleading sets forth transactions,
occurrences or events which were not in
existence at the time the original
pleading was filed but which only
happened after the filing of the original
pleading and therefore, could not have
been raised in the original pleading.
Ganito yan: Halimbawa, I have a defense and I will
file my answer. The trouble is nakalimutan ko yung depensa.
When I filed my answer, I did not raise that defense.
nakalimutan, ba. Oversight, inadvertence. Then after filing,
after several days, I remembered it. I have to raise that
defense. So, how will I raise my defense? By amending my
answer. But the defense was already in existence at the time I
filed the original answer but I failed to invoke it because of
oversight or inadvertence. So, ipahabol mo. You can do so
by amending your original answer.
Suppose, I filed my answer and I do not have this
particular defense. But after filing it, the defense came into
existence. An event or transaction happened after I have
filed my answer. So, the defense surfaced after. So, how can
you raise it when it was not yet in existence? Hindi ko
nakalimutan. Talagang wala pa. But now, meron na. So,
paano ko ipahabol yan? It is done by supplemental answer.
So, that is the main distinction. The 2nd distinction
deals on what is the effect of an amended or supplemental
pleading on the original pleading.
2. When an amended pleading is filed,
the original pleading is superseded. It
disappears technically from the record.
It is as if the original pleading no longer
exists. And the amended pleading
substitutes or takes the place of the
original pleading. On the other hand, a
supplemental pleading does not take
the place or erase the original pleading.
The original pleading will still exist side by
side with the supplemental pleading.
I will file an amended complaint. And the court
admitted. So, dalawa na. Ano ngayon ang nagyari sa
original complaint? Wala na yan. Legally, that is already
erased in the record. Although in practice, hindi naman
talaga tinatapon yan. The court will only consider the
amended complaint. But if you file a supplemental pleading,
the original still exists side by side with the supplemental
pleading. So, a supplemental pleading does not supersede or
erase the original pleading. They exist together. In effect,
there are now 2 complaints or 2 answers.
3. Amending a pleading is either a
matter of right or a matter of judicial
discretion but the filing of a
supplemental pleading is always a
matter of judicial discretion. It is obvious
in Sec. 6. The court may, upon
reasonable notice x x x. Meaning, the
filing of a supplemental pleading is
always a matter of judicial discretion.
Now, let us go to some interesting cases involving
supplemental pleadings because amended pleadings are
more common than supplemental pleadings:
Page 105 of 296
 LEOBRERA vs. CA
170 SCRA 711
A borrowed money from the bank.
Housing loan for say P300T payable next
year. Then, after 2 or 3 months, nag-loan na
naman siya sa bangko. The same bank.
Agricultural loan. payable also next year.
The following year, the housing loan fell due.
The bank filed a case against the debtor to
collect the housing loan. While the case
was being tried, nag-due naman yung
agricultural loan. The bank filed a motion to
allow it to file a supplemental complaint, this
time to collect on the agricultural loan. The
transaction happened after the filing of the
original. it could not have filed it earlier
because the loan has not yet matured at
that time. So, the bank sought to collect
the second loan by way of a supplemental
pleading citing Sec. 6.
The SC said; It cannot be the
subject matter of a supplemental pleading.
If you want, you file an entirely new case
because the 2 loans are completely
different. Of course, the parties are the
same but the loans are different. Pati ang
terms and conditions, iba. According to the
SC: A supplemental pleading must be
based on matters arising subsequent to the
original complaint related to the claim
presented therein and founded on the
same cause of action. It cannot be used to
try a new matter for a new cause of action.
Here is an instance where a supplemental pleading is
proper. Promissory note between A and B. Payable in
installments. First P10T payable in February. Second P10T,
payable in March. Then 3rd installment of P10T payable in
April. No acceleration clause. Remember this problem in Rule
2? Each installment is actually a separate cause of action for
as long as you file the case every time the one falls due. Ito
ang nangyari: February, hindi nakabayad ang debtor. So, file
ka ng kaso of P10T. Then March, hindi natatapos yung first
case, nag-due naman ang second installment. Hindi rin
nagbayad. I will now file a supplemental complaint. Ipahabol
ko yung second installment. How can I file the complaint for
the second installment, eh, February palang ngayon, di ba?
Meaning, it is not yet in existence. Tapos, pag-dating ng April,
nag-due na naman yung third. So, ganoon din. So, a
supplemental pleading is proper.
There was a bar problem: Somebody hired a
contractor to build his house. Pagtingin niya sa bahay niya,
wala palang kuwenta pagka-construct ang roof. Pag-
umulan, nagatulo. In other words, these defects were
discovered by the owner of the house. So, nag-file siya ng
kaso for damages for faulty construction of the roof. But what
he did not know, ang foundation, mahina rin. While the case
was pending, nag-collapse ang bahay and he was injured. If
you are the lawyer for the plaintiff, how will you bring to the
attention of the court this recent event about the collapse of
the entire house? Answer: Supplemental complaint because it
is an event which happened after the filing of the original
complaint.
SUPERCLEAN SERVICES CORP. vs. CA
July 5, 1996, 258 SCRA 165
This case drew the lines between
an amended pleading and a supplemental
pleading. The issue was whether the claim
of the plaintiff should be the subject matter
of a supplemental complaint?
Superclean is engaged in janitorial
services. It bid for a contract to provide
janitorial services to a government owned
corporation the Home Development and
Mutual Fund for the year 1990. The bidding
was in 1989. According to Superclean,
despite the fact that it had the lowest bid
and therefore should have won the
contract, HDMF refused to award the
contract to it. So, Superclean filed a case
against the RTC of Manila to compel the
contract to be awarded to it.
The trouble is, the case was not
decided immediately. 1990 passed and the
case was still on-going. It is already 1991, so
moot and academic na. So, what
Superclean did, it filed a supplemental
pleading to convert the case from one of
specific performance to damages.
Accordingly, instead of pursuing its prayer
to compel defendant to award the
contract to it, Superclean sought the
payment of damages because of
supervening event. Is the filing of the
supplemental pleading proper in order to
seek a different relief in view of
developments rendering the original relief
impossible of attainment?
The SC said: The transaction,
occurrence or event happening since the
filing of the pleading which is sought to be
supplemented must be pleaded in aid of a
party’s right or defense, as the case may
be, but in case of doubt, the supervening
event is not invoked for that purpose but to
justify the new relief sought. To begin with,
what was alleged as a supervening event
causing damage to Superclean was the
fact that the year for which the contract
should have been made has passed
without the resolution of the case.
The supervening event was
therefore cited not to reinforce or aid the
original demand which was for the
execution of the contract in Superclean’s
favor but to say that precisely because of it
Superclean’s demand would no longer be
enforced, thus, justifying Superclean in
changing the relief sought to one for
recovery of damages. Be that as it may, the
so-called supplemental complaint filed by
Superclean should simply be treated as
embodying amendments to the original
complaint.
So, actually, it is changing the relief. Not
supplementing the relief. this being the case, Superclean’s
remedy was not to supplement but rather to amend its
complaint. So, the correct procedure is an amendment of the
complaint. Because you are supplementing the relief sought.
You are completely changing it . But the SC said, throwing
aside technicalities, it should be treated as an amendment
rather than treat it as a supplemental pleading. It is already
there, eh.
Sec. 7. Filing of amended pleadings. - When any
pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall
be indicated by appropriate marks, shall be filed.
(7a)
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When you file an amended pleading, you should
indicate by appropriate marks. How is this done? Normally,
the amended portion is underlined. Example, you will insert an
entirely new paragraph, it will be underlined. If it is a sentence,
it will also be underlined. If you change a word, that new word
will be underlined. The purpose of that is for the court and the
other party to immediately detect the amendments. Without
the marks, the court and the lawyer has to compare
everything. But if there are underlinings, you just concentrate
on the underlined portions. So, that is how a pleading is
amended.
Sec. 8. Effect of amended pleadings. - An
amended pleading supersedes the pleading that
it amends. However, admissions in superseded
pleadings may be received in evidence against
the pleader; and claims or defenses alleged
therein not incorporated in the amended
pleading shall be deemed waived. (n)
The first sentence is one of the distinctions between
an amended pleading which we already discussed. An
amended pleading supersedes the pleading that it amends.
from the procedural viewpoint, the original pleading is already
non-existent. The court will no longer consider anything stated
there.
Suppose in your original pleading, you said
something which is favorable to me but in your amended
pleading, you removed that statement. Maybe the reason
why you amended your pleading is precisely so that the
statement is my favor will not be considered anymore. Now, I
want to bring to the attention of the court that statement
which is found in your original pleading. What will I do? under
Sec. 8, I will now offer it in evidence so that the court will
consider it all over again. This rule will be clearer in the study of
evidence. It is more of evidence rather than procedure.
End of Rule 10.
Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
As we have learned, we have to file an answer in
response to the complaint. You may file a reply to the answer,
an answer in response to a counterclaim, a cross-claim or a
third-party complaint. Now, what is the deadline to file such
response? There must be a deadline. That is what Rule 11 is all
about.
Sec. 1. Answer to the complaint. - The
defendant shall file his answer to the complaint
within fifteen (15) days after service of summons,
unless a different period is fixed by the court. (1a)
The general rule is 15 days. You must file your answer
to the complaint within 15 days after service of summons.
What is summons? It is governed by Rule 14. The procedure is
that the plaintiff files a complaint in court. The court will then
issue summons with a copy of the complaint attached to it.
The sheriff or any other proper court officer will go to the
defendant and serve the summons together with the copy of
the complaint. And we will learn in Rule 14 that this summons is
the process by which the court acquires jurisdiction over the
person of the defendant. That is the counterpart of a warrant
of arrest in criminal cases.
Then the law says unless a different period is fixed by
the court. While the general rule is 15 days, there are instances
where a different period is fixed by the court. Meaning, a
longer period may be fixed. In instances, for example, where
the defendant is abroad or he cannot be located. These are
found in Rules 14, 15 and 16.
How do you compute the 15-day period? Today is
January 8, 1998 and you are served with summons. When is
the last day for you to file your answer? January 23. You start
counting from January 9. We follow the rule in the civil code
on computation which is exclude the first day and include the
last day.
What happens if January 23 turns out to be a
Saturday, Sunday or a holiday? under the Revised
Administrative Code, it says that when the official doing of an
act falls on a Sunday or a holiday, then it can be done
immediately on the next succeeding working day. Automatic
yan. Extended.
Now, the rule on computation of time especially in
pleadings found in the Revised Administrative Code is now
found in the Rules of Court, Rule 22, Computation of Time:
Sec. 1. How to compute time. - In computing any
period of time prescribed or allowed by these
Rules, or by order of the court, or by any
applicable statute, the day of the act or event from
which the designated period of time begins to run
is to be excluded and the date of performance
included. if the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or a legal
holiday in the place where the court sits, the time
shall not run until the next working day. (n)
So, exclude the first day, include the last day.That is
the mode of computing time. If you are served today, start
counting tomorrow up to 15 days.
Sec. 2. Answer of a defendant foreign private juridical
entity. - Where the defendant is a foreign private
juridical entity and service of summons is made on the
government official designated by law to receive the
same, the answer shall be filed within thirty (30) days
after receipt of summons by such entity. (2a)
Here, the defendant is a foreign corporation, or a
foreign private juridical entity but doing business in the
Philippines. As a rule, you cannot sue a foreign private juridical
entity not doing business in the Philippines. So, it must be doing
business here in the Philippines. Example niyan ay may branch
office yan sa Pilipinas, like Sunlife Insurance of Canada.
What is the period for the private foreign corporation
to answer? If you read Sec. 2, you might get lost because the
answer here is you have to distinguish to whom the summons
will be served. If the private foreign corporation has a
designated representative who is registered with the DTI, the,
all summons should be served on that Philippine representative
because he is the authorized representative. If summons is
served to the designated resident agent or representative of
the foreign corporation, the foreign corporation has only 15
days to answer the complaint just like any other defendant.
So, Sec. 1 applies there.
But if the foreign private corporation has no
designated resident agent in the Philippines (which is actually
queer because the government will not allow that), under Sec.
2, the summons must be served on the government official
designated by law to receive the same. Sinong government
official? A Philippine government official. What will he do with
it? He is bound to transmit it to the head office of the
corporation abroad. I-mail niya. In that case, the foreign
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private corporation has 30 days after receipt of the summons
abroad within which to answer.
So, government official designated by law to receive
the same. Who is he? It is the Secretary of DTI. The is the
Philippine government official designated by law. If it is a
foreign bank, under the Central Bank Act, it is the
Superintendent of Foreign banks of the Bangko Sentral ng
Pilipinas. If the foreign private corporation is an insurance
company, under the insurance code, summons should be
served to the Insurance Commissioner.
So, if you are asked what is the period for a foreign
private juridical entity doing business in the Philippines to
answer a complaint after service of summons, distinguish first
whether such corporation has a designated resident
representative or not. If it has, follow Sec. 1. If it has none, the
period is doubled, 30 days.
Sec. 3. Answer to amended complaint. - Where
the plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within fifteen
(15) days after being served with a copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended complaint within
ten(10) days from notice of the order admitting the
same. An answer earlier filed may serve as the answer
to the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.) party complaint, and
amended complaint-in-intervention. (3a)
This is a continuation of Rule 10 on Amended
Complaints. A complaint is filed in court. it is amended.
Suppose, I filed an answer to the original complaint. There is
an original complaint and there is an amended complaint.
What is the period to answer the amended complaint? Take
note that when you file an amended complaint, the original
complaint disappears from the record. So, ang sagutin mo
yung amended compaint. Under the 1st par., it says 15 days.
Under the 3rd par., 10 days. What is the distinction?
The 1st par. says: Where the plaintiff files an amended
complaint as a matter of right, the defendant shall answer the
same within fifteen (15) days after being served with a copy
thereof. So, when is the filing of an amended complaint a
matter of right? For as long as defendant has not filed an
answer. Let us illustrate that:
Last Jan. 5, I was served a copy of the complaint. So,
I have 15 days to answer, so that is until Jan. 20. Today is Jan.
8, so I have 12 days to go. Suppose, nakatanggap na naman
ako ng amended complaint today. Then, another 15 days will
start to run. Meaning, another 15 days from Jan. 8. Forget the
original complaint. Don’t bother to answer it. So, 15 days all
over again from the service of the amended complaint.
Suppose, I was served with the original complaint last
dec. and I already filed an answer. Then today, I am served a
copy of the amended complaint. Do I have an obligation to
answer the amended complaint starting today? The answer is
no. Why? Because I have to wait for the order of the court
whether the amended complaint will be admitted or not.
Amendment in this case is no longer a matter of right. It is
already a matter of discretion. So, hindi muna ako mag-sagot
sa amended complaint. For all you know I might oppose pa
nga, eh.
Suppose on Jan. 20, eto ngayon ang court order.
The amended complaint is allowed and admitted. In other
words, the amended complaint filed on Jan. 8 was allowed
and admitted on Jan. 20. I received the order of the court
admitting the amended complaint on jan. 20. then, I have 10
days to file my answer to the amended complaint.
So, what is the difference? What is the period to file
an answer to an amended complaint? It depends. If the filing
of the answer to the amended complaint is a matter of right
(meaning, the defendant has not filed his answer yet), the
defendant has 15 days from service of the amended
complaint to file his answer. Just like in Sec. 1.
However, if the amendment is a matter of judicial
discretion because the defendant has already filed an answer
to the original complaint, the period to answer the amended
complaint is 10 days counted from the receipt of the order
admitting the said amended complaint. Remember these
points.
One last point. Suppose you filed a complaint, I
answered it and then you amended it. The amended
complaint is allowed. Of course, I will have to answer the
amended complaint. Suppose, hindi ko sinagot. Hindi ako
nag-file ng answer sa amended complaint within 10 days.
Can I be declared in default as to the amended complaint?
no, because according to Sec. 3 an answer earlier filed may
serve as the answer to the amended complaint if no new
answer is filed. So, the principle is if you will not file an answer
to the amended complaint, the answer to the original
complaint is automatically considered to be the answer to the
amended complaint. So, you will not be declared in default.
Normally, if your amendment is not really substantial
but merely formal, bayaan na lang kita. Mere corrections lang
pala. Typographical. Pero kung substantial, like you changed
your cause of action, I might be compelled. Delikado ako rito
because my defense to your original complaint may no longer
be applicable to your amended complaint. So, better for me
to answer. But if I will not answer, I cannot be declared in
default. Kaya lang, wrong defense na.
Sec. 4. Answer to counterclaim or cross-claim.
- A counterclaim or cross-claim must be answered
within ten (10) days from service. (4)
The period to file an answer to a counterclaim or
cross-claim is only 10 days from the time it is served. Actually, it
is served to you. It is served together with the copy of the
counterclaim. So, pag-plaintiff ka, pag-serve sa iyo ng answer,
tapos may counterclaim, you have 10 days. What if plaintiff
failed to answer the counterclaim? Under Rule 9, he may be
declared in default on the counterclaim. He has standing to
prove his cause of action but he has no standing to defend
himself in the counterclaim. The general rule if he fails to file an
answer to the counterclaim is he can be declared in default.
Is there an exception? Is there an instance where even if the
plaintiff will not answer the counterclaim, he cannot be
declared in default? In which case, answering the
counterclaim is optional? Meron bang ganoon? The SC said
yes. When the allegations in the plaintiff’s complaint are
intertwined with the allegations in defendant’s counterclaim
that to answer the counterclaim would be repetition of the
complaint, then the filing of an answer to the counterclaim is
optional. Even if he will not answer it, he cannot be declared
in default.
Suppose I will sue you for damages arising from a
vehicular accident. Chances are my allegations would be
that you were driving recklessly and that you bumped my car
causing damage. Tapos, your answer would be that it was I
who was negligent. Tapos, file ka ng counterclaim. As a
matter of fact, since you are the one negligent, you should be
the one liable to me. So, you are throwing back the charges
to me. So, if I will answer your counterclaim, I will have to
repeat what I said in my complaint. It becomes repetitious.
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Pabalik-balik. So, I may not file an answer to your
counterclaim anymore and I will not be declared in default.
But if I were to advise you when you become
lawyers, it is better to answer na lang. You may know the
exception pero ang judge hindi. That happened to me. Hindi
ako nag-file ng answer to defendant’s counterclaim because
anyway pabalik-balik man. Then, the defendant moved to
declare me in default on the counterclaim. And the judge
did. Patay. Do not expect that if you know everything, the
judge also knows.
Sec. 5. Answer to third (fourth, etc.) party complaint. -
The time to answer a third (fourth, etc.) party complaint
shall be governed by the same rule as the answer to
the complaint. (5a)
That is self-explanatory.
Sec. 6. Reply. - A reply may be filed within ten (10)
days from service of the pleading responded to. (6)
What is the pleading responded to? The answer
because the reply is the response to the answer. So,
pagtanggap mo ng answer merong mga affirmative
defenses. Kung gusto mong mag-file ng reply , you have 10
days. But as a general rule the filing of a reply is optional.
Kaya nga the law says may.
Sec.7. Answer to supplemental complaint. - A
supplemental complaint may be answered within
ten (10) days from notice of the order admitting the
same, unless a different period is fixed by the court.
The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or
supplemental answer is filed. (n)
That is a new provision. The period to file an answer
to a supplemental complaint is 10 days, not from the receipt of
the supplemental complaint but from the notice of the order
admitting the same. That is the general rule. So, it follows the
same pattern in amended complaint under the 2nd par.
Suppose, I will not file an answer to the supplemental
complaint. Well, it follows the same principle in Sec. 3 that the
answer to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental answer is
filed. So, 10 days lang. You correlate that with Sec. 6 of Rule
10.
Sec. 6. Supplemental pleadings. - Upon motion of a
party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions,
occurrences or events which have happened since
the date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10)
days from notice of the order admitting the
supplemental pleading. (6a)
So, the same provision on? the adverse party may
plead thereto within 10 days from notice of the order
admitting the supplemental pleading.
Sec. 8. Existing counterclaim and cross-
claim. - A compulsory counterclaim or a cross-
claim that a defending party has at the time he
files his answer shall be contained therein. (8a,
R6)
I think we have already touched this provision. One
of the requisites to make a counterclaim compulsory is that the
defending party has the counterclaim at the time he files his
answer. Meaning, I can invoke it now. So, if I do not have the
counterclaim as of now, it cannot be compulsory. It already
matured at the time defendant filed his answer. So, this
provision on compulsory counterclaim should be read in
connection with previous provisions on compulsory
counterclaim. Let us read correlate this with Rule 6, Sec. 7:
Sec. 7. Compulsory counterclaim. - A compulsory
counterclaim is one which being cognizable by the
regular courts of justice, arises out of or is connected
with the transaction or occurrence constituting the
subject matter of the opposing party’s claim and
does not require for its adjudication the presence of
third parties of whom the court cannot acquire
jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and
the nature thereof, except that in an original action
before the Regional Trial Court, the counterclaim
may be considered compulsory regardless of the
amount. (n)
Another related provision is Rule 9, Sec. 2:
Sec. 2. Compulsory counterclaim, or cross-claim, not
set up barred. - A Compulsory counterclaim, or
cross-claim, not set up shall be barred. (4a)
In other words, to get a clearer picture of the entire
rules, you have to correlate them with each other.
Sec. 9. Counterclaim or cross-claim
arising after answer. - A counterclaim or a cross-
claim which either matured or was acquired by a
party after serving his pleading may, with the
permission of the court, be presented as a
counterclaim or a cross-claim by supplemental
pleading before judgment. (9,R6)
Sec. 10. Omitted counterclaim or cross-claim. -
When a pleader fails to set up a counterclaim or a
cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he
may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment. (3a,
R9)
Actually, Secs. 9 and 10 emphasize one of the main
distinctions between a supplemental pleading and an
amended pleading which wealready discussed. What are the
distinctions? With respect to counterclaims and cross-claims, it
is emphasized here. Suppose I will file an answer to your
complaint today. I have no counterclaim. I have no cross-
claim. Therefore, I will just file my answer. How can I allege an
counterclaim or cross-claim when I have no cause of action?
But after I filed my answer, I acquired a counterclaim or a
cross-claim. Meaning, the counterclaim or cross-claim
matured or was acquired by a party after he served his
pleading. So, the counterclaim or cross-claim came later.
How will I raise it? According to Sec. 9, you may do so by
supplemental pleading.
Suppose when I filed my answer, I already have a
counterclaim or a cross-claim. It has already matured. So, I
should raise it. But nalimutan. I failed to set up the
counterclaim or cross-claim through oversight, inadvertence or
excusable negligence. now, after filing my answer, I
remembered. Dapat pala nag-counterclaim ako, nag-cross-
claim ako. So, ipahabol mo by amending your pleading
according to Sec. 10. We have already discussed this. That is
the first distinction between an amended pleading and a
supplemental pleading. When the transaction or event was
already in existence at the time you filed the original pleading,
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but you failed to invoke it because of oversight, inadvertence
or excusable neglect, you may do so by way of amended
pleading. But when the event or transaction occurred only
after the filing of the original pleading and therefore, you
could not have invoked it earlier, and you want to invoke it
now after you have acquired it, you do it by supplemental
pleading. That is a repetition of the distinction between an
amended pleading and a supplemental pleading. So, you
correlate Sec. 9 of this rule with Sec. 6 of Rule 10.
Sec. 11. Extension of time to plead. - Upon motion
and on such terms as may be just, the court may
extend the time to plead provided in these Rules.
The court may also, upon like terms, allow an
answer or other pleading to be filed after the time
fixed by these Rules. (7)
As a general rule, the period to file an answer is 15
days. Is that extendible? Yes. Normally in practice, the lawyer
will file a motion within the 15-day period. Normally, this is how
it is stated: Motion for extension of time to file answer. That the
defendant was served a copy of the complaint ten days ago.
Defendant hired the services of counsel only today. Therefore,
I only have 5 days to go to file my answer. Then, the normal
reasons of the lawyer would be because of pressure of work, I
cannot possibly file an answer within 5 days. Therefore, he is
asking the court to grant him an extension of another 15 days
from the original 15 days. Yan ang extension. Standard yan sa
mga abogado. Bihira man ang abogado mag-answer within
sa original period, ba. Hihingi talaga yan ng 2 weeks
extension. Maraming trabaho, eh. Sometimes, it is true.
Because it is not easy to file an answer. You have to interview
your client, gather evidence, study the case and research to
determine your answer. Others naman, alibi lang. Actually, 15
days is sufficient. Pero because of traditional Filipino habit of
manana, ba. We always act during the deadline. You are
given 15 days. You start to worry only on the 14th. So, 13 days
have been wasted. That is the usual situations. And courts
are very liberal. I still have to see a judge na i-deny yan.
Standard na yan, eh. Meron pa ngang second extension.
Now, what happens kung nag-lapse na yung 15
days? For example the defendant hired you on the 17th day.
So, there is nothing to extend. Is there still a remedy? Yes, the
second paragraph. The court may also, upon like terms, allow
the answer or pleading to be filed after the time fixed by these
Rules. So, lagpas na ang 15. The lawyer will study the case
immediately, prepare an answer. Paspasan. ba. Kung may
mali, bahala na i-amend na lang later. Tapos, bago ma-
default, file ng answer pero late. Motion to admit late answer.
And the court is also authorized to admit it. That is covered by
the second situation.
End of Rule 11.
Rule 12
BILL OF PARTICULARS
Sec. 1. When applied for; purpose. - 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 a pleading is a reply, the motion must be
filed within ten (10) days from service thereof. Such
motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the
details desired. (1a)
What is this bill of particulars all about? Here is the
situation: A defendant is served a copy of the complaint.
Defendant went to his lawyer and said: Please help me. File
an Answer. So, the lawyer studied the allegations because he
has to admit or deny the allegations in the complaint. When
he went over the complaint, some of the allegations were
vague, ambiguous or uncertain. Meaning, there are two or
more possible interpretations. They are so general and so
broad that the lawyer is having a hard time to file the answer.
In other words, he will ask that the allegations be more definite
and clearer.
The remedy is to file a motion for a bill of particulars
asking the court to compel the plaintiff to make his allegations
in the complaint clearer, more definite and more certain of
the paragraphs na vague. Because I cannot prepare an
answer if I do not know what the complaint or cause of action
is all about. And if your motion is meritorious, the court will issue
an order and the plaintiff has to comply by submitting a
clearer complaint. He will clarify those vague portions. That is
what is called a bill of particulars.
As defined, a bill of particulars is a more definite
statement of any matter which is not averred with sufficient
definiteness or particularity to enable the opposing party to
prepare his responsive pleading.
Do you remember there is a similar rule in Criminal
Procedure? The accused can ask the prosecution for a more
definite statement so that he will be able to understand clearly
and decide whether to plead guilty or not. It is found in Sec.
10 of Rule 116 on Criminal Procedure:
Sec. 10. Accused may, at or before arraignment,
move for a bill of particulars to enable him properly to
plead and to prepare for trial. The motion shall specify
the alleged defects and the details desired.
So, it is the same concept. There was a bar question
before where the examiner asked this: If a defendant is served
with a complaint where the allegations therein are ambiguous,
vague or uncertain, can a defendant file a motion to dismiss?
Is a motion to dismiss a correct move for a complaint which is
vague, ambiguous or uncertain? The answer is no. A
complaint cannot be dismissed simply because it is vague.
The correct remedy is for defendant to file a motion for a bill of
particulars to ask the court to compel plaintiff to make it
clearer. Kahit ang complaint walang kuwenta ang
pagkagawa but if it states a cause of action, you cannot have
it dismissed. You ask for a bill of particulars. In many cases,
and one of them is the case of:
TAN vs. SANDIGANBAYAN
180 SCRA 34
The SC said: The proper office of a bill of
particulars is to inform the opposite party
and the court of the precise nature and
character of a cause of action the pleader
has attempted to set forth and thereby to
guide his adversary in his preparations for
trial and reasonably protect him against
surprise at the trial. It complements the rule
on pleadings in general that is that the
complaint should consist of a concise
statement of the ultimate facts. The primary
objective of a bill o f particulars is to apprise
the adverse party of what the plaintiff wants
to preclude the latter from springing a
surprise attack later.
Therefore, if the statement is not concise, I have the right to ask
you make it concise. Because the plaintiff may have
deliberately made the complaint ambiguous para ma-mislead
ka.
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 One more point. For example: According to the
complaint, the plaintiff has been in possession of a particular
piece of land continuously for, say, 40 years. Assuming that is
par. (a) of the complaint. Ako ang defendant and I’d say:
That statement is ambiguous. So, I am asking you to submit a
bill of particulars referring to par. (a). I want you to enumerate
exactly and specify what you have been doing to justify your
possession of 40 years. What improvements you’ve made,
what trees you’ve planted. So, I am asking for these details
through a motion of bill of particulars. Is the motion proper?
No, because what defendant is asking are evidentiary facts
which in the first place have no place in a pleading. Ultimate
facts lang ang puwede. You are not required to state in
details what you have done for the past 40 years. Therefore, if
defendant has no right to narrate, plaintiff has no right also to
compel defendant to state evidentiary facts. So, a bill of
particulars refers to clarifying statements only of ultimate facts.
It cannot be used as a vehicle to compel the other party to
state evidentiary facts.
A good example which could be a proper object of
a bill of particulars is where a plaintiff, in his complaint, said:
Par. (5) Defendant employed fraud. So, motion for a bill of
particulars. That statement is very ambiguous. So, I’ll ask the
court to order plaintiff how exactly I committed the fraud. That
is not asking for evidentiary facts. Let us go back to Rule 8:
Sec. 5. Fraud, mistake, conditions of the
mind. - In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must
be stated with particularity. x x x
Suppose, this time it is the answer which is vague. In
most cases, ang inaatake na malabo is the complaint. Can a
plaintiff file a motion for a bill of particulars where the answer,
this time, is vague? Yes, because I can always allege na I will
file my reply. How can I file a reply when the answer is vague?
So, it works both ways.
Suppose, it is the reply which is vague or ambiguous.
Can a defendant file a motion for a bill of particulars? Yes, the
law is very clear. If the pleading is a reply, the motion must be
filed within 10 days from service thereof. Kung malabo ang
reply, I can still ask for a bill of particulars pero within 10 days
lang. So, all pleadings can be an object for a motion for a bill
of particulars.
There is an identical provision in Rule 116, Sec 9 of the
Rules on Criminal Procedure.
Rule 116, Sec 9. Bill of Particulars. The
accused may, before arraignment, move
for a bill of particular to enable to properly
plead and prepare for trial. The motion shall
specify the alleged defect of the complaint
or information and the details desired.
CINCO VS SANDIGANBAYAN
202 S 726
A motion for bill of particulars was
filed by the lawyer of the respondent in the
fiscal’s office when the case was under
preliminary investigation. Here, the affidavit
is vague according to the accused, so he is
filing a bill of particulars. He wanted to
compel the complainant to make his
affidavit clearer.
Issue: Is Section 9 applicable when
the case is already in the fiscal’s office for
preliminary investigation?
Held: No. It is only applicable
when the case is already in court for trial or
arraignment.
Sec. 2. Action by the court. - Upon the filing of the
motion, the clerk of court must immediately bring it
to the attention of the court which may either deny
or grant it outright, or allow the parties the
opportunity to be heard. (n)
That is an entirely new provision. Under the law, pag-
file ng defendant for a motion for a bill of particulars, the clerk
of court magpunta kaagad sa judge and the judge may grant
or deny. Or, the court may allow the parties to argue. Why?
A bill of particulars kasi could be used by the defendant to
delay the filing of the answer. Kahit na klaro ang complaint,
para lang tumagal ang answer, mag-file ng motion for a bill of
particulars. Kunwari malabo, malabo. Argue. Argue. So, ang
15 days, naging one month. So, the defendant has
succeeded. Tactic yan ng ibang lawyers. To void such
situation, pag-file sa court, pakita agad sa judge para i-deny
or grant kaagad. Unless kung controversial, the parties may
be required to argue. That is the philosophy behind Sec. 2.
Sec. 3. Compliance with order. - If the motion is
granted, either in whole or in part, the compliance
therewith must be effected within ten (10) days from
the notice of the order, unless a different period is
fixed by the court. The bill of particulars or a more
definite statement ordered by the court may be filed
either in a separate or in an amended pleading,
serving a copy thereof on the adverse party. (n)
If the motion is granted, the general rule is, plaintiff,
for example, must comply with that within 10 days. He must
submit to the defendant a document where the paragraphs
which were vague will be clearer. That is the bill of particulars.
Or, the plaintiff can amend the entire complaint or some
portions thereof.
Sec. 4. Effect of non-compliance. - If the order is
not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of
the pleading or the portions thereof to which the
order was directed or make such other orders as it
deems just. (1[c]a)
Suppose, the court directed the plaintiff to supply the
defendant with a bill of particulars and plaintiff failed or
refused to do so. What is the consequence? Under Sec. 4, the
court can issue an order striking out the complaint as if the
complaint was never filed. In effect, the complaint is
dismissed. Or, the portions which are defective are stricken
out.
Sec. 5. Stay of period to file responsive pleading. -
After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion,
the moving party may file his responsive pleading with
the period to which he was entitled at the time of filing
his motion, which shall not be less than five (5) days in
any event. (1[b]a)
What is the effect of a motion for a bill of particulars
on the 15-day period to answer? Remember, under the
previous rule, you have 15 days to file your answer. But since
hindi ka pa naka-file ng answer because you filed a motion for
a bill of particulars, the running of the 15-day period to file an
answer is deemed interrupted and will continue to run again
on the date you receive the bill of particulars from the plaintiff
if the motion is granted. Or, from receipt by the defendant of
the order denying his motion.
I receive a complaint today. I have 15 days to
answer. On the 8th day, I filed a motion for a bill of particulars.
Page 111 of 296
The running of the 15-day period automatically stops on the
8th day. So, while the motion is pending, the running of the 15-
day period is deemed interrupted. After 2 weeks, I received
the order denying my motion, I will have to file my answer.
How many more days to go? I still have 7 days to go to file my
answer.
Suppose I filed my motion for a bill of particulars on
the 13th day and it is denied or granted. From the time I
received the order denying my motion or from the moment I
receive the bill of particulars, how many more days do I have?
Two days to go na lang, ba? No, you are given 5 days.
Automatic yan. Masyadong close na. Mahirapan ka na.
There is a guarantee of a minimum of 5 days within which to
file your answer. Therefore, the effect of filing a motion for a
bill of particulars stays the running of the period to file an
answer. Based on that, if you file a motion for a bill of
particulars, you cannot be declared in default. We know that
you are declared in default if the period to answer has expired
and you failed to answer. In this case, from the moment the
motion is filed, tigil muna ang bilang. Pagna-deny, that is the
time you file your answer. Or, if granted, from the time you
receive the bill of particulars.
Sec. 6. Bill a part of pleading. - A bill of
particulars becomes part of the pleading for which
it is intended. (1[a]a)
When you file a bill of particulars, it automatically
becomes a part, for example, of the complaint for which it is
intended. It becomes part and parcel of the complaint.
End of Rule 12.
Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Sec. 1. Coverage. - This Rule shall govern the filing
of all pleadings and other papers, as well as the
service thereof, except those for which a different
mode of service is prescribed. (n)
Of course, pleadings are filed in court. How do you
file pleadings or motions in court? Ano ang ibig sabihin ng
service? What is the manner by which you furnish a copy to
your opponent? Kasi kailangan, pag-file mo, bigyan mo ng
copy ang kalaban mo. The rule which governs these matters is
Rule 13. So, this rule governs pleadings except those for which
a different mode of service is prescribed. Give an example
where Rule 13 is not the applicable rule. Rule 13 does not
apply to service of complaints. It applies to all service of
pleadings except the complaint. How complaints are served
is not governed by Rule 13 but by Rule 14. But all other
pleadings, from the answer forward, the manner of serving
them is covered by Rule 13.
Sec. 2. Filing and service, defined. - Filing is the act of
presenting the pleading or other paper to the clerk of
court.
Service is the act of providing a party with a
copy of the pleading or paper concerned. If any party
has appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless service
upon the party himself is ordered by the court. Where one
counsel appears for several parties, he shall only be
entitled to one copy of any paper served upon him by the
opposite side. (2a)
Filing & service defined
Filing means the act of presenting the pleading or
other paper to the clerk of court. That is how you file
documents in court. It is to the clerk of court. If your case is
already raffled, you go to the branch clerk of court. Doon mo
i-file.
Service, on the other hand is the act of providing a
party with a copy of the pleading or paper concerned. Now,
the rule to follow is if a party is not represented by a lawyer,
serve on the party. But if the party is represented by a lawyer,
the service should be to the lawyer, not to the party. If any
party has appeared by counsel, service upon him shall be
made upon his counsel or one of them, x x x.
General rule:
Service to lawyer binds client
What happens if I serve a copy of my answer directly
to the defendant instead of to his lawyer? The service is null
and void. If a part is represented by a lawyer, service should
be to the lawyer directly and not to the party. What is the
reason behind this? According to the SC, the reason for the
rule is to do away with the subsequent objection which the
party served may raise to the effect that he knows nothing
about court procedure and also to maintain a uniform
procedure calculated to place in competent hands the
orderly prosecution of a party’s case. Like for example, the
decision, instead of being served to the lawyer was served to
the party. Then, the period to appeal expired. Or, I will serve
my answer with counterclaim. Tapos, there was no answer to
the counterclaim. So, I will move to declare the plaintiff in
default. Sabi ng plaintiff: Ganoon pala? Mayroon palang
counterclaim-counterclaim? Meron palang period to answer?
Kaya nga ako kumuha ng abogado kasi hindi ako marunong.
Sa kanya mo ibigay, hindi sa akin. That is the reason. Para
wala ng reklamo, ba. Because when you hire a lawyer, the
lawyer is presumed to know what to do. That is why I hired a
lawyer because I do not know. I am a layman. I do not
understand periods. I do not understand counterclaims,
defaults, etc. So, the rule is you serve it to my lawyer, not me.
There was even a case years ago where there was a
decision. Somehow, the party learned about it. He went to
court and asked for a copy. The court said: We will furnish it to
your lawyer. Doon ka na kumuha ng kopya. Sabi nung party:
Ah, hindi. I volunteer. Ako na ang kukuha. I will receive it in
behalf of my lawyer. So, pinapirmahan ng court. Was there
was a valid service? And the SC said there is none. When a
party is represented by a lawyer, service of the decision must
be made upon the attorney, not on his client. The fact that
the latter volunteered to receive a copy thereof is of no
consequence because as already stated the purpose of the
rule is to maintain a uniform court procedure calculated to
place in competent hands the orderly prosecution of a party’s
case.
Exceptions to general rule
So, the rule is service to the lawyer binds the client
but service to the client directly does not bind him. That is the
rule, ha. Now, there are exceptions. Very, very queer
instances. Like for example, na-serve sa abogado mo. Pero
ang abogado mo 100% incompetent. Or, you served it to your
lawyer pero hindi mo alam binenta ka na pala. In other
words, he sold you down the river. Sinadya niyang hindi mag-
answer para ma-default ka. Then, that is a different case.
There is already corruption there. The rule that service to
lawyer binds the client should not be applied strictly because
of equitable reasons. These are very rare instances. One of
them was the recent case of:
Page 112 of 296
 BAYOG vs. NATINO
July 5, 1996, 258 SCRA 378
The court said: A notice to the
lawyer who appears to have been
unconscionably irresponsible cannot be
considered as notice to his client. The
application to a given case of the doctrine
that notice to counsel is notice to parties
should be looked into and adopted
according to the surrounding
circumstances. Otherwise, in the court’s
desire to make a short cut of the
proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the
detriment of justice. It would then be easy
for one lawyer to sell one’s rights down the
river by just alleging that he forgot every
process of the court affecting his client
because he was lazy. Because he can
always allege that, no. Sinadya niyang
hindi mag-file. Uy, nalimutan ko! So, patay
ka.
Suppose you are represented by three or more
lawyers. Mga collaborating lawyers, ba. Bawat abogado ba
may kopya? No. Service on one is sufficient. The law says xxx
service shall be made upon his counsel or one of them xxx.
Service to one is service to all. You can do it if you want to but
service on one will suffice.
Unless service upon the party is ordered by the court
According to Sec. 2, service should be made to the
lawyer not to the party xxx unless service upon the party
himself is ordered by the court. That is the exception. There
are instances where the court may direct to serve a copy to
the party instead of to the lawyer. Or, in addition to the
lawyer, meron pa sa party. Examples of this situation are
mentioned by the SC in the 1993 case of:
RETONI JR. vs. CA
218 SCRA 468
The SC said: Usually, service is
ordered upon the party himself instead of
upon his attorney:
1. when it is doubtful who the attorney for
such party is, or
2. when the attorney cannot be located, or
3. when the party is directed to
do something personally as
when he is directed to show
cause.
So, in those instances, the court
may apply the exception.
Suppose there are 50 defendants whom I represent.
Does it mean to say that when I am served a copy of a
motion, I am entitled to 50 copies also? No, isa lang. The last
sentence says: Where one counsel appears for several parties,
he shall only be entitled to one copy of any paper served
upon him by the opposite side. Why will I need 50 copies?
Now, if the 50 defendants are represented by 50 lawyers,
ibang istorya yan. Every lawyer has to be furnished a copy.
Sec. 3. Manner of filing. - The filing of pleadings,
appearances, motions, notices, orders, judgments and
all other papers shall be made by presenting the original
copies thereof, plainly indicated as such personally to
the clerk of court or by sending them by registered mail.
In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second case,
the date of the mailing of motions, pleadings, or any
other papers or payments or deposits, as shown by the
post office stamp on the envelope or the registry receipt,
shall be considered as the date of their filing, payment,
or deposit in court. The envelope shall be attached to
the record of the case. (1a)
Modes of filing:
1 - Personally
How do you file pleadings, motions, etc.? There are
two modes of filing: It could be filed
1. personally; or
2. by registered mail.
How do you file it personally? It is done personally to
the clerk of court. For example, your assistant or your secretary
will go there. The court will usually receive 2 or 3 copies.
Tatakan nila yung kopya ng RECEIVED on January 12, 1998,
3:00 p.m. So, pati oras, nandiyan. Then, that is deemed filed.
Personal filing yan.
Then xxx by presenting the original copies thereof,
plainly indicated as such personally to the clerk of court xxx.
This was not found in the old rules. Ang tingin ko, itong plainly
indicated as such was inserted because of the use of the
typewriter before. So, may carbon copies. Normally, malabo
na yun eh. So, pagtanggap ng court, carbon na lang, hindi
na mabasa ng court. I think that is the reason behind this.
Pero ngayon, iba naman ang sistema. Computer naman. Or,
xerox. Lahat yan, klaro. Kahit anong kopya, it is clear as the
other. Because there are some crazy terms in the office of the
clerk of court. File ka ng kopya. Halimbawa, 6 copies. Tatlo
sa kanila, isauli sa iyo ang iba. Saan diyan ang original?
Ibigay mo ang original nito. Eh, lahat yan original. You know
there are some crazy people there who do not know how to
apply this rule. Ah, ito ang original. So, it is designated as
ORIGINAL. That is only true kung may carbon copy. In other
words, this phrase should not be interpreted by placing the
word ORIGINAL. Gusto mo ng original, pili ka diyan. Eh, lahat
yan original.
2 - By registered mail
Now, do you have to file everything personally? It
becomes costly kung lahat ng filing personal. Just imagine if
the court is in Cebu. Everytime you file, punta ka ng Cebu?
That is very tedious. The other mode is by registered mail.
Hindi ordinary mail. Registered. Hindi air mail, hindi ordinary
mail. Basta registered.
If registered mail : Date of mailing is date of filing
The rule is the date of mailing is the date of filing.
Example: I have to file an answer to the complaint and my
deadline to file my answer is today. And then the court is, let’s
say, in Tagum. Today, na-mail ko. So, nakatatak doon
January 12. When will it reach the court? Next week pa yan.
Siguro, mga January 17. So, late na. Is the answer filed out of
time? No. The date of mailing is the date of filing. In other
words, the post office becomes an agent of the court. Ang
importante, na-meet mo ang deadline sa post office. The law
says xxx the date of the mailing of motions, pleadings, or any
other papers or payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in
court. The envelope shall be attached to the record of the
case. Because pagtanggap niyan sa court, tatakan na
naman yan ng actual date of receipt. RECEIVED JANUARY 17.
Paano yan, beyond 15 days na? But, based on the envelope,
it was mailed on January 12. Officially, the 15 day period was
met. That is what you have to remember about service.
If filed by ordinary mail: Date of filing is date of receipt by the
court
Page 113 of 296

Halimbawa, I filed by ordinary mail. Or, I availed of
private messengerial services
like JRS Express. The SC said in the 1994 case of:
INDUSTRIAL TIMBER CORP. vs. NLRC
233 SCRA 597
Where a pleading is filed by
ordinary mail or by private messengerial
service, it is deemed filed on the day it is
actually received by the court, not on the
day it was mailed or delivered to the
messengerial service.
What about filing by fax machine?
GARVIDA VS SALES JR
271 S 767
Issue: Is the filing of pleadings
through fax machine valid?
Held: Filing of pleading by
facsimile transmission is not sanctioned by
the Rules of Court. A facsimile is not a
genuine and authentic pleading. It is, at
best, an exact copy preserving all the marks
of an original. Without the original, there is
no way of determining on its face whether
the facsimile pleading is genuine or
authentic and was originally signed by the
party and his counsel. It may in fact be a
sham pleading.
So, kung ordinary mail, or I’ll send it to JRS, it is
deemed filed on the day it reaches the court. So, parang
personal service. The JRS messenger becomes your
messenger. So, ang maganda to meet deadlines, registered
because sigurado ka, hindi mahuli. Even if the mail reaches
the court beyond 15 days, the date of mailing is considered as
the date of filing.
Sec. 4. Papers required to be filed and served. -
Every judgment, resolution, order, pleading
subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment
or similar papers shall be filed with the court, and
served upon the parties affected. (2a)
That is what we said earlier. Normally, you cannot file
anything in court without furnishing a copy of that to your
opponent. Every judgment, resolution, order, every pleading
subsequent to the complaint. Bakit every pleading
subsequent to the complaint? Meaning, answer, reply. Ang
complaint pala bakit hindi covered? Because as I said earlier,
the service and filing of complaints is not governed by Rule 13
but by Rule 14, the next rule. Ang procedure niyan, if you file a
complaint, you do not furnish the defendant a copy. You file
everything in court and the court will order the sheriff to furnish
a copy to the defendant. Ang sheriff ang magpadala.
Ngayon, kung ako mag-answer, I have to follow this. I have to
furnish a copy to the plaintiff. That is why, Rule 13 applies to all
pleadings after the complaint. That is the reason behind that.
How pleadings are served
Sec. 5. Modes of service. - Service of pleadings,
motions, notices, orders, judgments and other
papers shall be made either personally or by
mail. (3a)
Take note that the manner of filing under Sec. 3 are
also the modes of service under Sec. 5. And again, what is the
difference between filing and service? Filing means it is
directed to the court. Service means it is directed to the
lawyer or to the party. But in Sec. 3, pleadings or documents
are filed also personally or by registered mail. So here, it is the
same procedure: either personally or by mail. Although you
will notice here the phrase by mail. Wala nang sinasabing
registered. Because sometimes, service by ordinary mail is
allowed if there is no registry service in the locality. So, that’s
the difference no. Service can be done xxx by mail but filing is
always by registered mail. Ordinary mail, puwede man din
under Sec. 3 but it will be treated as personal. It is deemed
filed only on the day it is actually received by the court in the
case of Industrial Timber Corp.
Personal service
Sec. 6. Personal service. - Service of the
papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in
his office with his clerk or with a person having
charge thereof. If no person is found in his office, or
his office is not known, or he has no office, then by
leaving the copy, between the hours of eight in the
morning and six in the evening, at the party’s or
counsel’s residence, if known, with a person of
sufficient age and discretion then residing therein.
(4a)
That is the manner of serving papers. You personally
serve a copy to the party or his counsel. To the party if he is
not represented by a lawyer. But if represented by a lawyer,
sa kanya na. How? It need not be literal na kailangan
hanapin mo yung abogado, hintayin mo. Because if you
leave it in the office of the lawyer, with his clerk, or with a
person having charge of his office, that is personal service.
That is why secretaries of lawyers are trained to receive.
Tatakan nila yan, pati date and time. And tat is personal
service. Hindi naman kailangan na abogado mismo ang
tatanggap.
Halimbawa, walang tao sa opisina, or his office is not
known, or, he has no office (anong klaseng abogado ito,
walang opisina, hindi mo alam ang opisina), then, by leaving
the copy between the hours of eight in the morning and six in
the evening, at the party’s or counsel’s residence, if known,
with a person of sufficient age and discretion then residing
therein. Maybe his wife, or the helper. Pero huwag mong
iwanan sa batang maliit na 4 years old. He is not of sufficient
age and discretion. Baka itapon niya yan. Or gawing
saranggola. Give it to somebody who understands the
importance of such documents.
PLDT vs. NLRC
128 SCRA 402
The address of the lawyer was in
one of the high rise buildings in Makati.
Nasa 9th floor. Sa ground floor, may
information counter. Siguro, tamad itong
process server, hindi na umakyat sa 9th
floor. Nagtanong sa information counter:
kilala mo si Atty. so and so? Yes, sir. Nasa
9th floor. Puwede ba, iwanan ko ito sa iyo
tapos ibigay mo sa kanya. Anyway, naga-
daan naman siya dito. Tapos, pumayag
yung nasa information desk. So, instead of
going to the 9th floor, doon niya gi-serve sa
information desk. Somehow, the decision
never reached the lawyer. And the question
is was there proper personal service to the
lawyer?
The SC said: Notices to counsel
should properly be sent to the address of
record in the absence of due notice to the
court of change of address. Service of
Page 114 of 296
 decision at the ground floor of a party’s
building and not the address of record of
party’s counsel on the 9th floor of the
building is not a valid service. Notice upon
a lawyer is to be effected at his exact given
address and not in the vicinity or at a
general receiving section of an entire multi-
storey building with many offices. Hindi
puwede yan.
This case should not be confused with the case of:
PCIB vs. ORTIZ
150 SCRA 380
The lawyer of PCIB was also
holding office at the 3rd floor of the LRT
Bldg. in Makati. There is also a receiving
section at the ground floor. This court
employee had the habit of leaving the
papers in the receiving section. Of course,
the papers reached the office of the
lawyer. The lawyer never complained.
They should have called the attention of the
court employee. So, it became a practice.
One day, there was a decision were PCIB
was a party to the case. This time, the
decision never reached the lawyer. Was
there a valid service?
The SC said this time yes. Because
when you allowed this practice to continue
without objecting, then the ground floor has
already become your adopted address. In
an accepted service at this place, 3 floors
down from the address originally given by
them without objection of any sort, they
cannot now disown this adopted address to
relieve them from the effects of their
negligence, complacency or inattention.
Service therefore on July 15 of the notice of
judgment on the ground floor of LRT Bldg.
should be deemed as effective service on
PCIB’s attorneys. Therefore, since there was
no appeal, the decision binds the client.
Tapos! Sakit, no. In other words, the client lost the
case on a mere technicality. There was no appeal from the
decision and the service was valid although actually, they did
not receive it. Yan ang effect. That’s why these 2 cases have
to be studied. Just like in our office, no. I told the security
guard: Next time the process server leaves something, do not
accept it. I will not honor that. Ask him to go up and serve.
And I told the process server also not to serve it to the security
guard. You have to come up here. Delikado, eh. Look at
what happened to the case of PCIB. If I were the client, I will
terminate your services for negligence.
Registered mail vs. Ordinary mail
Sec. 7. Service by mail. - Service by registered mail
shall be made by depositing the copy in the post
office, in a sealed envelope, plainly addressed to
the party or his counsel at his office, if known,
otherwise at his residence, if known, with postage
fully prepaid, and with instructions to the postmaster
to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the
locality of either the sender or the addressee,
service may be done by ordinary mail. (5a)
What is the difference between a registered mail and an
ordinary mail? Sa registered mail, may resibo yan, eh. That is
why it is more expensive. The date, the name of the
addressee are there recorded. You can trace on what day
your letter was received by the other party. That is the
advantage of a registered mail. And the law requires
registered mail. Unless, according to the last sentence, if no
registry service is available in the locality of either the sender or
the addressee where ordinary mail may be allowed. But I do
not know if there is a city or municipality where the post office
has no registry service. I think lahat meron niyan. Even the
poorest municipality offers registry service. So with that, there is
no way by which you could apply ordinary mail as a mode of
service. Siguro, in a very remote place where there is a post
office pero wala namang registry service.
Substituted service
Sec. 8. Substituted service. - If service
of pleadings, motions, notices, resolutions,
orders and other papers cannot be made
under the two preceding sections, the office
and place of residence of the party or his
counsel being unknown, service may be
made by delivering the copy to the clerk of
court, with proof of failure of both personal
service and service by mail. The service is
complete at the time of such delivery. (6a)
How can it happen that I cannot serve the party or
his counsel at his address? The best example is where a lawyer
changes his address without informing the court or the other
party. Kaya nga, the provision in Sec. 3, Rule 7 says counsels
who fails to promptly report to the court a change of his
address shall be subject to appropriate disciplinary action.
Because that is always the problem. The lawyer will change
address without informing the court or the adverse party. I am
the lawyer, padala ako ng messenger doon. Wala naman
nagaopisina doon. Naglipat na. I send by registered mail.
Balik. Return to sender. So, how can I serve him? There is an
attempt to serve him personally or by mail but I failed. I will
apply Sec. 8. I will resort to substituted service. How? By
serving a copy of my pleading with the clerk of court with
proof of failure of personal service and service by mail. Once I
file it to the clerk of court, under the law, my opponent is
already served. By fiction of law, ba. Sabihin niya: Wala man
ba. Wala man akong natanggap. Eh, di kasalanan mo yan.
You should have reported your new address. Everything is
being transmitted to the clerk of court. And under the law,
you are the one served. So, ikaw ang dehado. You will be the
one to suffer.
So, in effect, if you’re asked, what are the modes of
service of pleadings, by a lawyer to another lawyer under the
rules? There are three.
1. by personal service
2. by mail
3. by substituted service
Sec. 9. Service of judgments, final orders or
resolutions. - Judgments, final orders or
resolutions hall be served either personally or
by registered mail. When a party summoned
by publication has failed to appear in the
action, judgments, final orders or resolutions
against him shall be served upon him also by
publication at the expense of the prevailing
party. (7a)
What is the difference between the service in Sec. 9
and the service in Sec. 6 and 7? What is being served in Sec. 9
is court orders or court decisions. What we have been talking
about earlier is a lawyer serving a copy of his pleading to the
other lawyer. Ito naman, court judgments or orders. Court
judgments and court orders have to be served also. How does
a court serve to a lawyer or the party its decision and final
orders? The same. either personally or by registered mail.
Either the clerk of court will mail it to the lawyer or personal
Page 115 of 296
service. That’s why if you go to the court, there are employees
there na ang tawag process servers. All that they do everyday
is go around from law office to law office to serve court orders,
notices and judgments. It is what you call personal service.
But if the lawyer is a Manila lawyer, or is out of town, chances
are the clerk of court will apply registered mail.
Service by publication
But there is a third mode of service mentioned in Sec.
9. When a party summoned by publication has failed to
appear in the action, judgments, final orders and resolutions
against him shall be served upon him also by publication at
the expense of the prevailing party. So, the third mode is very
rare. Final judgments, orders and resolutions can also be
served by publication in instances where a party was
summoned by publication under Rule 14 and he failed to
appear in the action. What are the instances where a party
may be summoned by publication? We will discuss them in
the next rules, Rule 14, 15 and 16. So, how are court
judgments, final orders, or resolutions served? Personally,
registered mail or in some rare cases, publication.
Sec. 10. Completeness of service. - Personal
service is complete upon actual delivery. Service
by ordinary mail is complete upon the expiration
of ten (10) days after mailing, unless the court
otherwise provides. Service by registered mail is
complete upon actual receipt by the addressee,
or after five (5) days from the date he received the
first notice of the postmaster, whichever date is
earlier. (8a)
When is personal service complete? Upon actual
delivery. There is no problem with that. The pleading or
judgment is delivered. So, from that date, the service is
complete. Service by ordinary mail which is allowed only in
instances where there is no registry service in the locality, is
complete upon the expiration of ten (10) days after mailing,
unless the court otherwise provides. Because you cannot
trace this. We will just presume na pag-mail mo, within ten
days, tinanggap na. So, you count ten days. Unless the court
would lengthen it. Ah, the post office in that town is very
inefficient. Kulangin ang 10 days. We will make it 20. We will
just estimate. Now, service by registered mail can be traced.
When is service by registered mail complete? Upon actual
receipt by the addressee which you can really determine.
Constructive service
Suppose the lawyer or the party receives a notice
from the post office. Di ba sa registered mail, usually may
notice? Ngayon, ako ang party, I can already guess kung ano
yan. Yung default judgment ko. What I will do, I will not claim
it. Bahala kayo diyan. Because if you receive it, you are now
bound and it will become final. So, ang strategy ko, I will not
go to the post office and claim it. Alam ko man na the
decision is against me. Can you do that ? If you do that,
under the law, when I received the notice, you count five
days. After five days and you do not claim it, then, you are
deemed served at the end of five days. That is what you call
constructive service.
So, a party or a lawyer cannot defeat the process of
the law by simply not claiming his mail. Some laymen believe
na ganoon. Para hindi ka ma-bind, huwag mong tanggapin.
That’s crazy. The law is wiser than you are. So, ayaw mong
tanggapin ang sulat mo. Sige. After five days, you are
deemed served. Alkansi ka. You are bound by a decision
which you never read. And you cannot even appeal
because your lawyer will complain. So, the best way is to
claim your mail. That is constructive service.
Sec. 11. Priorities in modes of service and filing. -
Whenever practicable, the service and filing of
pleadings and other papers shall be done
personally. Except with respect to papers
emanating from the court, a resort to other modes
must be accompanied by a written explanation
why the service or filing was not done personally.
A violation of this Rule may be cause to consider
the paper as not filed. (n)
This is an entirely new provision. According to this
section, between personal service and service by registered
mail, personal service is better. It is preferred. there is no
doubt that it is received. Yung mail, mahuhulaan pa tayo.
that is why, under the law, service and filing personally is the
first choice. Generally, except with respect to papers
emanating from the court, a lawyer or a party cannot resort to
other modes of service unless there is a written explanation
why the service was not done personally. A violation of this
rule may be cause to consider the paper as not filed.
Meaning, if I will resort to service by registered mail, my
pleading has to explain bakit nag-mail ako hindi personal.
Because without this explanation, the paper is not considered
as filed. That is not found under the old law. Noon, you do not
have to give an explanation. Ngayon, kailangan.
But I think Sec. 11 is often misapplied by some
people. To my mind, the reason behind Sec. 11 is that there
were lawyers na sadyain nila na hindi mag-serve personally. I-
mail nila. Para ma-late ba. Para pagtanggap mo, late. They
will file a motion to be heard, say, this coming Friday. Ang
opisina mo nasa tapat. Imbes na i-serve doon, pumunta pa
ng post office. They really do that para ma-delay ang
pagtanggap. So, during the hearing of the motion, wala ka.
There is something wrong there. Why will you mail a motion
when the adverse party is just across the street or just in the
next building. Unless your intention really is to delay. That is I
think the intention behind this. To put a stop to this practice.
But right now, I’ve been noticing pleadings filed by
lawyers, they automatically give that explanation when the
reason is very obvious. For example, I will file a motion in court,
my opposing counsel is in Manila. Then they will explain; I
have to resort to service by registered mail because if I resort
to personal service, it becomes very expensive. I have to fly to
Manila to serve. In other words, because of the expense and
the distance, I have no choice but to resort to registered mail.
Puwede man yan. But to my mind, kung ako ang court, if the
reason is obvious, I will not require an explanation. Magiging
repetitious lang and tedious.
But if for example, you filed a motion and your
opponent is just across the street. It is only a matter of sending
your clerk there for a minute pero pinadala mo pa sa post
office na malayo. Tapos, during the hearing, wala siya.
Tanong ng judge: Did you furnish him a copy of the motion?
Yes, Your Honor. How? Well, I mailed it, registered. Kailan?
Three days ago. You are staying in San Pedro St. The opposing
counsel is also staying in San Pedro St. Bakit gi-mail mo? Gusto
mo para hindi tanggapin? Ah, I will deny your motion.
Section 11 is further explained in the case
of:
SOLAR TEAM ENTERTAINMENT vs RICAFORTE
293 S 661
Ruling: Under Section 11, personal service
and filing is the general rule, and resort to
other modes of service and filing are the
exceptions. Henceforth, whenever personal
service or filing is practicable, in light of the
circumstances of time, place and person,
personal service or filing is mandatory. Only
when personal service or filing is practicable
Page 116 of 296
 may resort to other modes be had, which
must be accompanied by a written
explanation as to why the personal service
or filing was not practicable to begin with.
In adjudging the plausibility of an
explanation, a court shall likewise consider
the importance of the subject matter of the
case or the issues involved therein, and the
prima facie merit of the pleading sought to
be expunged for violation of said rule.
Sec. 12. Proof of filing. - The filing of a
pleading or paper shall be proved by its existence
in the record of the case. If it is not in the record,
but is claimed to have been filed personally, the
filing shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court on
a copy of the same; if filed by registered mail, by
the registry receipt and by the affidavit of the
person who did the mailing, containing a full
statement of the date and place of depositing the
mail in the post office in a sealed envelope
addressed to the court, with postage fully prepaid,
and with instructions to the postmaster to return the
mail to the sender after ten (10) days if not
delivered. (n)
How do you prove that a paper or pleading has
already been filed in court? Well, very easy. It shall be proved
its existence in the record of the case. I will file my answer and
it is there is the record. That proves that I filed it. Halimbawa,
gi-file mo pero nawala or na-misplace so it is not attached to
the record. I can prove it by showing to you my copy which
has been duly stamped RECEIVED. In other words, somebody
must have removed it from the record of the case. That is why,
if it is not in record but it is claimed to have been filed
personally, the filing shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of
the same. walang problema kasi may copy ka man na duly
stamped RECEIVED.
Now, if it is by registered mail, by the registry receipt
and by the affidavit of the person who did the mailing,
containing a full statement of the date and place of
depositing the mail in the post office in a sealed envelope
addressed to the court, with postage fully prepaid, and with
instructions to the postmaster xxx. Meaning, you complied. I
mailed it. Then it must have been lost somewhere in the mail.
and therefore, it should not be taken against you. That is how
you prove you filed your pleading.
Sec. 13. Proof of service. - Proof of personal
service shall consist of a written admission of the
party served, or the official return of the server, or
the affidavit of the party serving, containing a full
statement of the date, place and manner of
service. If the service is by ordinary mail, proof
thereof shall consist of an affidavit of the person
mailing of facts showing compliance with Section
7 of this Rule. If service is made by registered
mail, proof shall be made by such affidavit and
the registry receipt issued by the mailing office.
The registry return card shall be filed immediately
upon its receipt by the sender, or in lieu thereof,
the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster
to the addressee. (10a)
Written admission of the party served
Under the rules, you do not file a pleading in court or
a motion or anything without furnishing the adverse party a
copy. How do you prove that you furnished the other party a
copy? If it is personal service, you can prove it by a written
admission of the party served. That’s one. I am the process
server and you are the lawyer. I give you a copy. Sa last part,
may nakalagay: COPY RECEIVED. Atty. Juan dela Cruz. So,
pirmahan niya. That is what you call a written admission of the
party served. The other option is your messenger will execute
an affidavit. That I have served Atty. so and so on this date
and on this time at this office. Well, the more popular is the first
one. Yung may COPY RECEIVED. Just imagine everytime you
receive, may affidavit pa. But that’s the other alternative.
Let us go to registered mail. How do you prove that
you served a copy of this document to the opposite party by
registered mail? You have to surrender to the court, normally
i-attach yan, to the pleading you are filing the registry receipt.
Because the lawyer will say; Copies sent by registered mail to
Mr. so and so. Attached is the registry receipt. Together with
an affidavit again of your messenger that he mailed it on this
date, at this time and place addressed to so and so. I tell you
in actual practice, lawyers do not execute the affidavit.
Tedious ba. They just attached the registry receipt. Ito yung
pleading, tapos, sa last part: copies sent by registered mail to
Atty. X, counsel for plaintiff per registry receipt no. 12345 dated
Jan. 13, 1998. Tapos, walang affidavit. And we honor that.
Sige na lang. Anyway, tinanggap mo na, eh. But under the
law, hindi dapat ganyan. There must be an affidavit. Klaro
man yan, o. May registry receipt. Anong malay ko? Baka sa
love letter mo yan. In other words, the registry receipt does
not really show what that letter is, to whom it is addressed.
Resibo man lang yan. For all you know, resibo yan ng letter
mo para sa creditor mo. Kaya kailangan may affidavit.
Pero lawyers don’t do that especially here in Davao.
Pero sa CA and SC hindi yan puwede. Lalo na sa SC. The SC
will not honor that. Pag walang affidavit yan, they will dismiss
it. the SC requires a strict compliance with Sec. 13 on affidavit.
So, aside from the registry receipt, your messenger has to
execute an affidavit. Di ba may return card, doon talaga
makita ang exact date when the addressee received it. The
return card has to be surrendered to the court, normally.
Because that is what the law says. The registry return card shall
be filed immediately upon its receipt by the sender.
Halimbawa, hindi tinanggap. Because we know very
well under Sec. 10, the addressee may not claim his mail and
he is deemed served upon the expiration of five days. Now,
how do I prove that I sent a copy by mail and he received the
notice, the postmaster informed him but he never bothered to
claim it? Well, the law says xxx in lieu thereof, the unclaimed
letter together with the certified or sworn copy of the notice
given by the postmaster to the addressee. That will be
returned to you, eh. Return to Sender. So, your affidavit, plus
the certification of the postmaster that the addressee was
notified but he never bothered to claim his mail. Then, the
service is deemed proven.
JOHNSON & JOHNSON PHIL. vs. CA
201 SCRA 768
A decision adverse to Johnson &
Johnson Phils. (J&J) from the ca was mailed
by the CA to the former under Sec. 9:
Judgments shall also be served by registry
mail. After a few weeks, the envelope
containing the decision was returned to the
CA. the mail was not claimed. Then, on the
face of the envelope, nakalagay : RETURN
TO SENDER UNCLAIMED. Then, at the back
of the envelope, it says there: RETURNED TO
THE CA. Based on this envelope, the CA
considered it as constructive service and
therefore considered also J&J as bound.
J&J went to the SC. We never received the
envelope. We were not notified. Is J&J
considered as served based on the
annotation on the envelope?
Page 117 of 296

The SC said no because there is no
certification from the postmaster. There
must be an official certification from the
postmaster as required by Sec. 13 that the
notice was sent on this date but you never
claimed it. Hindi puwede yung sa envelope
lang. Hindi mo nga alam sinong sumulat
niyan. So, there is no proof of constructive
service.
The court said: A certification from
the postmaster would be the best evidence
to prove that the notice was validly served.
The mailman may also testify that the notice
was actually delivered. The postmaster
should certify not only that the notice was
issued or sent but also as to how, when and
to whom the delivery thereof was made.
There is nothing in the record showing how,
when and to whom the delivery of the
registered notices subject registered mail of
J&J was made and whether said notices
were received by J&J. The envelope
containing the unclaimed mail merely bore
the annotation RETURN TO SENDER
UNCLAIMED on the face thereof and
RETURNED TO THE CA at the back. The
respondent CA should not have relied on
these notations to support the presumption
of constructive service.
So, anong kulang doon? The official written
certification by the postmaster in order to apply the doctrine
of constructive service.
Sec. 14. Notice of lis pendens. - In an action
affecting the title or the right of possession of real
property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may
record in the office of the registry of deeds of the
province in which the property is situated a notice
of the pendency of the action. Said notice shall
contain the names of the parties and the object of
the action or defense, and a description of the
property in that province affected thereby. Only
from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property
affected thereby, be deemed to have constructive
notice of the pendency against the parties
designated by their real names.
The notice of lis pendens
hereinabove mentioned may be canceled only
upon order of the court, after proper showing that
the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect
the rights of the party who caused it to be
recorded. (24a, R14)
Notice of lis pendens. This is familiar, di ba. This is
actually part of land Registration. Notice of lis pendens simply
means notice of pending litigation which actually applies only
to actions involving possession or ownership of real property.
Like, I will file a case against you to recover a piece of land
which I claim is mine. Ang danger diyan, as far as I am
concerned, if you foresee na matatalo ka, you might sell it to
somebody or mortgage in the bank. Then, pagnatalo ka, ako
na ngayon ang owner, babawiin ko na ang property doon sa
nakabili. Tapos, sasabihin niyang hindi ko man alam na may
kaso ito. I was not notified. Therefore, I am a purchaser in
good faith. patay ako.
Kung sa bangko naman, sabihin ng bangko: Paano
na ang utang? Kailangang bayaran mo. Ako ang
magbabayad. Kasi, the bank is a mortgagee in good faith. In
other words, you are bound. So, if the property is subject of a
case, patatakan mo yan ng notice of lis pendens. I am
notifying the whole world may kaso ito. With that, walang
tatanggap niyan lalo na bangko. When there is a notice of lis
pendens, you are buying the property subject to the outcome
of the case. You are buying the risk. That is the purpose of a
notice of lis pendens. You file it in the office of the Register of
Deeds of the place in which the property is situated.
May a defendant file a notice of lis pendens?
Normally, it is the plaintiff. Yes, in the case where an
affirmative relief is claimed by the defendant in his answer.
Normally, that applies when he has a counterclaim over said
property. So, either one will do.
Normally, the notice of lis pendens will stay until the
case is terminated. So, when the case is still pending, that
notice remains annotated to your title except if you can show
that the notice is only for the purpose of molesting the adverse
party. Harassment lang and not to protect the rights of the
party sought to be recovered. Hindi naman lahat ng kaso
puwede kang mag-notice ng lis pendens. I’ve seen instances
before where plaintiff will file a case against the defendant to
collect an unpaid loan. May notice of lis pendens yung lupa
ng defendant. No, that is not an action for recovery of
ownership or possession of a real property. That is a collection
case. Usually yung mga accion publiciana or accion
reinvidicatoria. And while the case is going on, that notice
remains there until the case is terminated unless you can show
it is purely to molest you or it is not necessary. A good example
of that was the 1992 case of:
ROXAS vs. DEE
223 SCRA 643
Plaintiff filed a case against
defendant claiming he is the owner of the
land. Actually, harassment pala. He filed
the case to recover the ownership so with
notice of lis pendens. Sige ang trial.
Nagtagal na pero so far he has not proven
his right to the property. Even after a year,
he has not presented proof that he is the
owner. So, pinatanggal ng defendant ang
notice of lis pendens. Because kung ikaw
talaga nag may-ari, by this time, klaro na
yan. Pero wala pa man. Sabi ng plaintiff:
Hindi puwedeng tanggalin ang notice of is
pendens. Hintayin nating matapos ang
case.
Sabi ng SC: That is only for
harassment. The court ordered the
cancellation of the notice of lis pendens
even while the case was still going on.
While a notice of lis pendens cannot be
canceled for as long as the action is
pending and unresolved, the proper court
has the authority to determine whether to
cancel it under peculiar circumstances. For
example, where the evidence so far
presented by the plaintiff does not bear out
the main allegations in the complaint. In
other words, it appears clearly to molest the
adverse party.
I really do not know why this provision is here because
this is a provision on Land Titles. Bakit pinasok sa Remedial
Law, I really do not know. This used to be found in Rule 14.
Anong pakialam ng notice of lis pendens sa summons? When
I looked at the new rule, uy, nawala na. Yun pala nilipat lang
nila sa Rule 13. Still irrelevant. But it is more of a principle in
Land Titles rather than procedure. Although, may connection
kasi there is a pending case, eh. But that is a lose connection.
End of Rule 13.
Page 118 of 296
 Rule 14
SUMMONS
Summons in civil cases is the counterpart of warrant
of arrest in criminal cases. Under the Rules on Criminal
Procedure, when an information is filed in court, the judge will
issue a warrant of arrest. In civil cases, when a complaint is
filed in court, the court will issue what is known as a summons
under Sec. 1
Sec. 1. Clerk to issue summons. - Upon the filing of the
complaint and the payment of the requisite legal fees,
the clerk of court shall forthwith issue the
corresponding summons to the defendants. (1a)
Summons defined
Summons is defined as a writ or process issued and
served upon a defendant in a civil action for the purpose of
securing his appearance therein. Sec. 2 states the contents of
a summons:
Sec. 2. Contents. - The summons shall be
directed to the defendants, signed by the clerk
of court under seal, and contain:
a) the name of the court and the names of the
parties to the action;
b) a direction that the defendant answer within
the time fixed by these Rules;
c) a notice that unless the defendant so
answers, plaintiff will take judgment by default
and may be granted the relief applied for.
A copy of the complaint and order
for appointment of guardian ad litem, if any,
shall be attached to the original and each copy
of the summons. (3a)
The purpose of a summons is to enable the court to
acquire jurisdiction over the person of a defendant. Just like a
warrant of arrest. If a defendant is not served with summons,
the effect is that the court never acquired jurisdiction over his
person. Therefore, any judgment rendered in regard to such
defendant is completely null and void. The judgment does not
bind him unless he waives the defect. Because it is waivable.
Ano ang plural ng summons? Meron bang plural
yan? Ano? Summonses? I think it is still summons, whether
singular or plural. The verb is, of course to summon. Tawagin
mo. Summons is a noun, a legal term. But actually, there is a
similarity in meaning because you are being called to answer
in a case.
Summons on amended complaint
Suppose I will file a complaint against A and then
later on I will amend my complaint. I will include B. Is there a
necessity of another summons on B? Of course, there was
already a summons against A. If you include an additional
defendant, does the law require another summons on the
additional defendant? YES. He is completely a different
defendant from the first. So, another summons has to be
issued to bind the additional defendant.
On substituted parties
This situation should not be confused with another
situation where suppose I will file a complaint against A and he
died and the action is one which survives. If you file a case
against a defendant who is being summoned and while the
case is pending, he died and the action is one which survives,
the procedure is that the lawyer will supply the court with the
name of the legal heirs or his representatives for the purpose of
SUBSTITUTION. We have learned that. Let us say X is his legal
representative. Is there a need for another summons on X who
substituted the deceased defendant? NO. What is sufficient is
that he is served with a copy of the order of the court directing
that he be substituted as the new defendant. In the first place,
he is not really a new defendant. He is only a continuation of
the personality of the deceased defendant. So, that is
different from changing or adding a defendant. In the second
case, there is no new defendant but merely a continuation of
the personality of the deceased defendant.
BAR QUESTION: The plaintiff filed a complaint against
defendant B who was served with summons. Plaintiff
amended his complaint. Is there a necessity of another
summons to be served on the defendant on the amended
complaint? Or, is the summons on the original complaint
sufficient? Anyway, it is the same defendant and he was
already summoned.
ANSWER: Based on jurisprudence, you distinguish. It
depends on whether the defendant has already appeared in
the action after the service of summons on the original
complaint. What do you mean by appeared in the action?
The best example there is when he has already filed an
answer. If there is still no answer to the original complaint, and
the plaintiff amended his complaint, it is still a matter of right.
According to the SC, there must be a new summons on the
amended complaint. But if the defendant has already filed
an answer to the original complaint, this time it is no longer a
matter of right, there is no need of serving new summons on
the amended complaint. All that the plaintiff has to do is serve
a copy of the amended complaint to the defendant.
So we will tie this up with Rule 11 on Period to Answer.
If the defendant was served with summons on the original
complaint and before he could answer, the complaint was
amended by the plaintiff, there must be another summons to
be served on the amended complaint and the defendant has
15 days all over again to file an answer to the amended
complaint. But if the defendant has already filed an answer to
the original complaint, there is no need of issuing another
summons. All that plaintiff has to do is serve a copy of the
amended complaint on the defendant. And once the court
admits the amended complaint, going back to Rule 11, the
defendant has only 10 days from service of the order
admitting the amended complaint to file his answer. And the
law further says that if defendant will not file his answer to the
amended complaint, his answer to the original complaint will
be considered already as his answer to the amended
complaint.
PAN ASIA TRAVEL VS CA
164 S 263
Ruling: Appearance in the action
is not only limited to the filing of an answer.
When defendant files a motion for extension
of time to file his answer, that is already
appearance in the action. If the defendant
files a motion for bill of particulars under
Rule 12 that is already considered an
appearance in the action.
Sec. 3. By whom served. - The summons
may be served by the sheriff, his deputy, or other
proper court officer, or for justifiable reasons by
any suitable person authorized by the court issuing
the summons. (5a)
Summons is served by the sheriff who is actually a
court employee, or his deputy or other court officer. Meaning,
one of the employees there in the clerk of court. Or, for
justifiable reasons, by any suitable person authorized by the
Page 119 of 296
court issuing the summons. Suppose, I will sue somebody who
lives at the top of Mt. Apo. I don’t think any sheriff would
bother to go there. But the court can deputize the barangay
captain to serve the summons. Turuan lang siya anong gawin
niya. And that could be a valid service of summons. Because
the law says xxx for justifiable reasons, by any suitable person
xxx.
Before, may complaint which had to be served in
Brgy. Tapak, Paquibato. Have you heard of that place? It is
still part of Davao City but I don't think you have been there.
To go there you have to pass to Panabo first. You have to get
out of Davao City and then re-enter Davao City and then up
to certain point land, maglakad na ng isang araw before you
can reach that place. Mag-horse back ka. Makita mo doon
mga natives. I don’t think a sheriff would bother to go there.
Baka mawala pa siya. He has not even heard of the place.
So, he can recommend a barangay captain or a policeman.
These are abnormal situations.
Like in the case of SIQUITO vs. LETRONDO L11580, July
20, 1959, a policeman served summons to a defendant. The
issue was whether the policeman was authorized to serve
summons. The SC said no. the policeman is not a sheriff. He is
not a deputy or other court officer. A policeman belongs to
the PNP which is not part of the judiciary but of the executive.
Therefore, he is not authorized. But suppose, yung lugar na
yon wala talagang ibang authorized. The policeman or the
chief of police there is the only one who can reach that place.
No problem. The court has to issue an order deputizing or
authorizing the same. But without such authority, by itself, he is
not a person covered by Sec. 3.
Summons, its ministerial character
Suppose, a sheriff cannot find you at daytime.
Everytime he looks for you, wala ka because gabi ka na
umuuwi. Or, probably you are working outside of Davao City
so you only come home during weekends. So, what the
sheriff will do, puntahan ka niya sa gabi to serve the summons.
Or, during Saturdays and Sundays kung saan walang opisina.
Is there a valid service considering the fact that the summons
will be served not during office hours or a regular working day?
The SC said yes. That was the ruling in the case of:
LAOS vs. CA
219 SCRA 688
Service of summons may be made
at night as well as during the day or even
on a Sunday or holiday because of its
ministerial character. There is nothing so
complicated here. You just serve him a
copy and then ask him to acknowledge
receipt. And in most cases, if you really
cannot be served during daytime or
working day, and that is the only feasible
time where you may be served, there is
nothing wrong there. You cannot
challenge the validity of the service on that
ground.
Sheriff’s return
Sec. 4. Return. - When the service has
been completed, the server shall, within five (5)
days therefrom, serve a copy of the return,
personally or by registered mail, to the
plaintiff’s counsel, and shall return the summons
to the clerk who issued it, accompanied by
proof of service. (6a)
The duty of the sheriff after service of summons is that
he should make a report to the court as to what happened.
That is what is called a sheriff’s return. Respectfully returned to
the court with the information that defendant was personally
served with summons on this date and on this time as shown
by his signature on the face of this original copy. Or,
respectfully returned to the court with the information that
defendant cannot be served with summons because the
defendant had already moved from the address indicated in
the complaint and therefore he cannot be located. Then, you
furnish the plaintiff with the copy of the return so that his
counsel will know what to do next. How can the lawyer count
the 15-day period? Unless he will also know if service had
been made and the outcome thereof. If I am the plaintiff, I will
count the 15 days from your receipt. That is the reason behind
Sec. 4.
Alias summons
Sec. 5. Issuance of alias summons.- If a summons is
returned without being served on any or all of the
defendants, the server shall also serve a copy of
the return on the plaintiff’s counsel, stating the
reasons for the failure of service, within five (5) days
therefrom. In such a case, or if the summons has
been lost, the clerk, on demand of the plaintiff,
may issue an alias summons. (4a)
If you cannot serve any or all of the defendants, the
court server shall serve a copy of the return on plaintiff’s
counsel stating that there was failure of service. Or, nawala
ang summons. in such a case, the clerk of court on demand
of the plaintiff will issue an alias summons. That is what we call
the second summons. Maybe, alam mo na ang new address,
so will ask the clerk of court to issue an alias summons on the
new address of defendant.
Modes of service of summons
How is summons served? What are the modes of
service of summons? That is one of the most important
questions in the bar. Summons for individual defendants or
natural persons. There are three (3) general ways of service of
summons:
1. Service in person - Sec. 6
2. Substituted service - Sec. 7
3. Service by publication - Secs.
14, 15 & 16
Let us discuss them one by one. Under the ‘64 Rules,
the first mode of service is called personal service. Now, it is
termed service in person. Pareho man ang meaning nila. I
was intrigued so I asked a member of the committee which
drafted the rules. Bakit pinalitan ninyo from personal service
to service in person? Reason: In order not to confuse personal
service of summons in Rule 14 with personal service of other
documents in Rule 13. True, they are often confused with
each other. Sometimes a question is asked about summons,
ang sagot is based on the provisions of Rule 13. Even the
fourth year, during their last exam, I noticed that. Rule 13
applies to everything except summons. Kaya nga it is
governed by Rule 14. Pero yung service of answer, motions,
judgments, etc., Rule 13. So, that was the reason for the
change of term. Sabi ko, dapat yung Sec. 7, sinali na rin.
Meron man ding substituted service sa Rule 13 under Sec. 8.
So, there is still confusion.
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1st mode - Service in person
Sec. 6. Service in person on defendant. -
Whenever practicable, the summons shall be served
by handing a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by
tendering it to him. (7a)
The summons must be served in person. This is literal,
ha. No substitute. To the defendant mismo. Hindi puwedeng
ibigay sa asawa, sa anak or sa kasama sa bahay. And the
law does not care where to do it. Suppose I am the sheriff, I’m
looking for the defendant to serve the summons. Nakita ko
ang defendant kumakain sa isang restaurant. nilapitan ko. Sir,
I’ve been looking for you, hindi kita makita. I will serve the
summons to you now. Ah, hindi, hindi. Punta ka sa bahay.
Hindi na ako magpunta sa bahay ninyo. Nandito ka na, eh.
Punta ako sa inyo, hindi kita makita. Tapos, here you are. I
can even do it at night, any day because of the LAOS ruling.
Yes, because that is literal.
Do not confuse that with the previous rule. Di ba
service to a party can be done through his employee of the
lawyer. But this time, service must be made in person.
Halimbawa, ayaw magtanggap. Dili ko mudawat. Naa may
ingon ana. Akala nila, pag hindi nila tinanggap, they will not
be bound. No, the law says if he refuses receive and sign for it,
by tendering it to him. Tendering means offer. Meaning, ayaw
mo? Bahala ka basta bigyan kita. Ayaw mong mag-pirma?
Well, I will just tell the court. I gave it to you and you refused to
acknowledge. Or, I was handing it to you and you refused to
accept. And you are automatically bound. So, the common
impression of laymen na pagdili nila dawaton, dili sila masabit.
No, that is of course false. You cannot defeat a court process
by refusing to accept it. May mga sheriff pa nga na bastos.
Dili ka magtanggap? Basta ilagay ko ito sa tabi mo, i-report
ko sa court na binigyan kita, ayaw mong tanggapin, ayaw
mong mag-pirma. Bahala ka maski i-ilo pa na nimo. And
under the law, from that moment, you are bound. So,
matakot man yang defendant ba. Kunin niya yun tapos mag-
consult siya ng lawyer. Tapos, his lawyer will tell him na he is
bound despite his refusal to accept it.
2nd mode - Substituted service
Sec. 7. Substituted service. - If, for justifiable causes,
the defendant cannot be served within a
reasonable time as provided in the preceding
section, service may be effected (a)by leaving
copies of the summons at the defendant’s residence
with some person of suitable age and discretion
then residing therein, or (b) by leaving the copies at
defendant’s office or regular place of business with
some competent person in charge thereof. (8a)
Suppose, I cannot serve you the summons personally.
I cannot find you. Balik-balik ako hindi kita maabutan. Palagi
kang wala. But everytime I go there, your wife or husband is
around. I can leave the summons with your wife or husband
because the law says xxx (a) by leaving copies of the
summons at the defendant’s residence with some person of
suitable age and discretion then residing therein xxx. So, it can
be the wife or the husband. Housemaid or houseboy, puwede
rin kasi doon man yan nakatira. Provided he is of suitable age
and discretion. Puwede sa anak? Yes, again basta of suitable
age and discretion. Ang sheriff kailangang tantiyahin din niya.
Ito bang anak may buot na ni or wala pa?
Now, do not follow what happened in the case of
SIQUITO vs. LETRONDO, July 20, 1959 where the sheriff served
the summons to defendant’s daughter who was 10 years old,
nasa grade 4 pa lang. The court said that there is no valid
service because the defendant’s daughter is not a person of
suitable age and discretion. It must be done on a case to
case basis.
This time, place is important. Sa bahay talaga. Or, if
not the residence xxx (b) by leaving the copies at defendant’s
office or regular place of business with some competent
person in charge thereof. Sinong in charge sa office like the
manager, foreman, etc. Sa office mo i-serve. So, the place is
important. It is either the residence or place of work or office.
Now, do not confuse this with the previous rule. Let
us read Sec. 6, Rule 13.
Sec. 6. Personal service. - Service of the
papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in
his office with his clerk or with a person having
charge thereof. If no person is found in his office,
or his office is not known, or he has no office, then
by leaving the copy, between the hours of eight
in the morning and six in the evening, at the
party’s or counsel’s residence, if known, with a
person of sufficient age and discretion then
residing therein. (4a)
In Rule 13, that is known as personal service. In Rule
14, that is known as substituted service. Service of summons is
governed by a different rule from service of pleadings,
judgments and other papers. Now, what is substituted service
in Rule 13? Let us go back to Sec. 18, Rule 13.
Sec. 8. Substituted service. - If service of
pleadings, motions, notices, resolutions, orders
and other papers cannot be made under the two
preceding sections, the office and place of
residence of the party or his counsel being
unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure of
both personal service and service by mail. The
service is complete at the time of such delivery.
(6a)
In Rule 14, substituted service means if you cannot
serve the defendant in person, then you serve the summons at
the residence of the defendant with some person of suitable
age and discretion residing therein or by leaving copies at the
defendant’s office or regular place of business with some
competent person in charge thereof. That is substituted
service of summons.
But in Rule 13, substituted service of other pleadings,
judgments, orders, etc., if personal service or service by
registered mail have failed, then serve it on the clerk of court.
And that is known as substituted service. So, iba ang meaning.
That is why I am emphasizing this to avoid confusion.
Nakakalito, eh because of the similarity of terms. Substituted
service of summons in Rule 14 is different from substituted
service of pleadings, judgments and other papers in Rule 13.
Now, take note on this. Suppose a sheriff, for the first
time will go to defendant’s house. Kakatok. Where is
defendant A? Sabi ng asawa: Wala, nasa Maynila. Kailan
magbalik? Tonight. If you want. Come back tomorrow. Sino
ka pala? I am the wife. I would like to serve summons to you.
So, the sheriff resorted to substituted service. Is there a valid
service of summons? The SC said there is none because under
the law, substituted service can only be resorted to if for
justifiable causes the defendant cannot be served within a
reasonable time. Meaning, there must be more than one
attempt at personal service. First time pa lang nag-fail ka to
serve in person, you resort kaagad to substituted service?
So, what is the principle to remember? A sheriff
cannot resort to substituted service unless there were previous
attempts to serve the defendant in person but for justifiable
causes, he cannot be served within a reasonable time. And
according to jurisprudence, when a sheriff resorts to
substituted service of summons under Rule 14, he makes a
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return, no. Naturally he has to state there and justify why
service in person cannot be done. Maybe he will say I tried to
serve him in person 10 times pabalik-balik pero hindi ko makita.
Yan siguro. otherwise, the service is defective.
MAPA vs. CA
214 SCRA 417
Impossibility of personal service
should be shown by stating the efforts made
to find the defendant personally and the
fact that such efforts failed. These
statements should be made in the proof of
service. This is necessary because
substituted service is in derogation of the
usual method of service.
TOYOTA CUBAO INC. VS CA
October 23, 1997
Ruling: A law prescribing the manner in
which the service of summons should be
effected is jurisdictional in character and its
proper observance is what dictates the
court’s ability to take cognizance of the
litigation before it. Compliance therewith
must appear affirmatively in the return. It
must so be as substitute service is the mode
that departs or deviates from the standard
rule. Substitute service must be used only in
the way prescribed, and under
circumstances authorized by law.
Meaning, what is preferred by law is service in person.
Substituted service is not the rule. It is the exception. It does
not necessarily mean that since the sheriff did not explain that
personal service was tried then the service is void. He can still
prove in court, no. Actually, I tried serve many times. Hindi ko
lang nalagay sa report ko. Okay lang man, ba. But there is a
presumption that the sheriff did not do his job. Kailangan,
ilagay niya sa report niya. That was the ruling in the case of
Mapa.
3rd mode - Service by publication (Sec. 14)
Now, we will jump immediately to the third mode of
service known as service of summons by publication which
was already touched in the previous rules. Going back to Sec.
9, Rule 13:
Sec. 9. Service of judgments, final orders
or resolutions. - Judgments, final orders or
resolutions shall be served either personally or
by registered mail. When a party summoned by
publication has failed to appear in the action,
judgments, final orders or resolutions against him
shall be served upon him also by publication at
the expense of the prevailing party. (7a)
When a party summoned by publication has failed to
appear in the action, meaning the defendant failed to file an
answer, the decision can also be served upon him by
publication. Question: What are the instances where a
defendant may be served with summons by publication?
Answer: Sections 14, 15 & 16 of Rule 14. And the first one is
service upon defendant whose identity or whereabouts are
unknown. That is what you call suing an unknown defendant.
Or, the defendant is known pero hindi na makita. He may be
in Davao, Cebu or in Manila. Balita-balita lang. But definitely,
he is in the Philippines. That is the important condition. So, let
us read Sec. 14:
Service by publication, Sec. 14
Unknown defendant or his whereabouts is unknown
Sec. 14. Service upon defendant whose
identity or whereabouts are unknown. - 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, service may, by
leave of court, be effected upon him by
publication in a newspaper of general circulation
and in such places and for such time as the court
may order. (16a)
Whenever the defendant is designated as an unknown owner,
or the like, or whenever his whereabouts are unknown, but he
is in the Philippines, but his exact address hindi mo alam, and
cannot be ascertained by diligent inquiry, talagang mahirap
hanapin, service may by leave of court, so there must be a
motion, be effected upon him by publication. Saang
newspaper? Of general circulation. Hindi naman kailangan
sa Daily Inquirer. Puwede man sa local paper, ba. And in
such places and for such time as the court may order. For
example, sabihin mo: We learned that he is in Cebu pero
saan sa Cebu, we do not know. The court may order the
publication to be published in a local newspaper of general
circulation in Cebu. Of course, kasama diyan ang complaint.
How many times? Bahala na ang court. Say, tatlong issues.
So, every Monday for three weeks. Basta the presumption is
mabasa yan ng defendant or at least somebody who must
have read it will inform the defendant. So, the law requires
that you must file a motion and ask the court to allow service
of summons by publication.
Sec. 14, Rule 14 of the 1964 Rules vs.
Sec. 16, Rule 14 of 1997 Rules
Actually, the counterpart of Sec. 14 under the ‘64
Rules is Rule 14, Sec. 16. Ngayon, it’s Rule 14, Sec. 14 with an
amendment. The amendment is very slight but to my mind,
there is still a question mark as to what it is all about. Under the
‘64 Rules, it says:
Sec. 16. Service upon an unknown defendant. -
Whenever the defendant is designated as an
unknown owner, or the like, or whenever the
address of a defendant is unknown and cannot be
ascertained with diligent inquiry, service may, by
leave of court, be effected upon him by
publication in a newspaper of general circulation
and in such places and for such time as the court
may order.
What did you notice? The word whenever is
changed to in any action. Is that a change of form only or a
change of substance? Because the answer to that question
will depend. If a problem will be given to you and if you
believe that the change in the language of the law is only as
to form, then the answer now to that question before is also
the same answer to the question now. But, if the change is
substantial, an answer to the question before will be different
from the answer to the same problem today.
Actually, I emphasized this to the fourth year. And
during their exam. I gave them a problem precisely to find out
how they will answer. The problem is some did not see the
point. But some saw it. Those who answered the service of
summons is valid based on the language of the present law, I
considered 100% correct. Those who said the service of
summons was not valid because of jurisprudence, I also
considered as 100% correct. Either one is correct basta alam
mo ang dahilan. In other words, you can argue. Parang
debate ito, eh. Now, I will cite the jurisprudence under the old
law so you will understand it better. The language of the old
law is: Whenever the defendant is designated as an unknown
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owner, or the like, or whenever the address of a defendant is
unknown and cannot be ascertained with diligent inquiry,
service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such
places and for such time as the court may order.
This is the hypothetical problem just like the question I
asked in the fourth year. B borrowed money from A. Then B,
hindi na makita. One day, A was informed that B was
somewhere in Davao City. So, A asked the court that he be
allowed to serve summons by publication in order to pursue his
collection case. The court granted the motion. And the
summons against B was published in Davao City in Sunstar
Davao. There was no answer. B was declared in default and
there was a judgment against him. Later on, when the
judgment was enforced against B, B questioned the service of
summons by publication against him. According to
defendant, he has never read the newspaper, therefore he is
not bound by it. He should have been served personally. Is he
correct? Was there a valid service of summons by
publication?
I will cite the history of this issue. In the very first case
where that issue came out was the case of:
FONTANILLA vs. DOMINGUEZ
73 PHIL 579
The SC said there was a valid
service of summons. What kind of action is
filed by plaintiff against defendant? An
action to collect an unpaid loan. Is that an
action in personam or an action in rem? Of
course, that is an action in personam. The
court said: Service of summons by
publication on a defendant who is in the
Philippines but whose exact address is
unknown is valid whatever the nature of the
action is. Whether it is in personam or in
rem. The SC said: Service of summons by
publication is proper in all actions without
distinction provided that the defendant is
residing in the Philippines but his identity is
unknown or his address cannot be
ascertained.
However, this pronouncement was reversed in the
later case of:
PANTALEON vs. ASUNCION
105 PHIL 765
The SC ruled that when the
defendant is in the country and his address
is unknown and you apply summons by
publication under Sec. 14 (old rules), service
of summons by publication is allowed
provided the action is in rem. Therefore, if
the action is in personam, there is no valid
service of summons by publication.
The SC said: It is a well settled
principle in Constitutional Law that an
action strictly in personam personal service
of summons within the forum, (meaning
within the Philippines) is essential to the
acquisition of jurisdiction over the person of
the defendant who does not voluntarily
submit himself to the authority of the court.
In other words, summons by publication
cannot consistently with the due process
clause in the Bill of Rights confer upon the
court jurisdiction over said defendant.
In other words, if the defendant was not personally
notified about the case, and we will only presume he read the
paper, that is tantamount to depriving him of his property
without due process of law. So nagkaroon ng conflict, no. So,
Sec. 14, based on the Pantaleon ruling applies only when the
action is in rem and not when it is in personam. Now, the third
case was:
CITIZEN’S SURETY & INSURANCE CO. vs.
MELENCIO-HERRERA
38 SCRA 369
The SC reiterated the ruling in
Pantaleon that you can only Sec. 14 if the
action is in rem or at least quasi in rem.
There is no service of summons by
publication when the action is in personam.
So, paano na yung creditor na gustong
mag-file ng kaso against debtor and he
cannot effect service of summons by
publication? The SC said that there is still a
way. How? By converting the action from
in personam to at least quasi in rem.
Pagna-convert mo na, you can now move
for service of summons by publication.
Because you cannot acquire jurisdiction
over the person of the defendant, so you
acquire jurisdiction over the res. How do
you convert the case from one in personam
to one in rem? The SC said you look any
property of the defendant which you can
attach. Kahit bisikleta lang. Kahit anong
property ma-attach. Have it attached
under Rule 57, Sec. 1(f) which we shall take
up later. Now, pagna-attach na ang
property, you now have a lien over the
property. Pag may lien na, the action is
now considered as an action quasi in rem.
You can now ask the court to allow you to
resort to summons by publication.
The court could not validly acquire
jurisdiction over a non-appearing
defendant absent a personal service of
summons within the forum. The proper
recourse for a creditor in the same situation
as petitioner is to locate properties real or
personal of the resident defendant Delnor
with unknown address and caused them to
be attached under Rule 57, Sec. 1(f). In
which case, the attachment converts the
action into a proceeding in rem or quasi in
rem and summons by publication may then
accordingly be deemed valid and
effective.
The fourth case which is the most exhaustive, and this
case I advise you to read because the court summarized
everything from Fontanilla to Pantaleon is the case of:
MAGDALENA ESTATE vs. NIETO
125 SCRA 758
Ano ang correct? When the
action is in personam, hindi puwede. The
action must be in rem. If it is in personam,
better convert it. That’s the rule no.
And even after Magdalena Estate, there were still
other cases where the SC came out with the same ruling. One
of them which originated here in Davao City was:
CONSOLIDATED PLYWOOD IND. vs. BREVA
166 SCRA 589
The action filed against
Consolidated was in personam. Summons
by publication was made. There was a
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 judgment against defendant. Thereafter, the Philippines. Let us go back to Rule 4, Sec. 3 because it is
defendant questioned the validity of the talking of the same defendant.
judgment as there was no valid service of
summons. The SC quoted the ruling in Sec. 3. Venue of actions against
Magdalena Estate that there was no valid nonresidents. - If any of the defendants does not
service of summons under Sec. 14. reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff,
So, that is the standing jurisprudence. But I noticed or any property of said defendant located in the
under the new rules, as worded now, it starts with the phrase in Philippines, the action may be commenced and
any action where the defendant xxx. Noon, whenever the tried in the court of the place where the plaintiff
defendant xxx. Ano ang ibig sabihin ng in any action? resides, or where the property or any portion
Whether it is in personam or in rem? Is that the intention? If thereof is situated or found. (2[c]a)
that is the intention, then the ruling in Magdalena is obsolete,
abandoned. Citizen’s Surety is also obsolete. Pantaleon is So, according to Rule 4, Sec. 3, where the defendant
obsolete. And we are going back to Fontanilla where the SC does not reside and is not found in the Philippines, but the
said that service of summons by publication applies to any action affects the personal status of the plaintiff or any
action whether in personam or in rem. That is the effect. property of the defendant located in the Philippines, he can
be sued. And the venue is where the plaintiff resides or where
Hindi nga klaro, eh. It is a very minor amendment but the property is situated. So, at least the action is in rem. Going
to my mind, it created a lot of confusion. Sabi nga ni Justice back to Rule 14, Sec. 15, now it is more specific.
Feria sa commentaries niya: Take note that Sec. 14 says in any
action. However, there are rulings of the SC that Sec. 14 Here is the first question: In what instances where a
applies only to actions in rem. In other words, he himself has non-resident defendant who is not found in the Philippines be
not clarified things. Sana sinabi niya: Despite the phrase in sued in Philippines court? To answer that, let us break up Sec.
any action, the intention of the law is still to follow 15:
jurisprudence. Or, the intention of the law is to abandon these
rulings. Kaya, to my mind, controversial ito. Parang slight lang The defendant who does not reside and is not found
sa unang tingin but the effect is substantial. So, baka when in the Philippines may be sued:
you reach fourth year, the SC will have a clearer explanation
to this. 1. when the action affects the
personal status of the plaintiff;
2. when the action relates to or
Service by publication, Sec. 15 the subject of which is,
Extraterritorial service property within the Philippines,
in which the defendant has or
Of the three instances where summons by claims a lien or interest, actual
publication may be allowed, Sec. 15 is the most famous: or contingent;
3. when the action relates to or
Sec. 15. Extraterritorial service. - When the the subject of which is,
defendant does not reside and is not found in the property within the Philippines
Philippines, and the action affects the personal in which the relief demanded
status of the plaintiff or relates to, or the subject of consists, wholly or in part, in
which is, property within the Philippines, in which excluding the defendant from
the defendant has or claims a lien or interest, any interest therein; or
actual or contingent, or in which the relief 4. when the property of the
demanded consists, wholly or in part, in excluding defendant has been attached
the defendant from any interest therein, or the within the Philippines.
property of the defendant has been attached
within the Philippines, service may, by leave of Take note that in all these four instances, the action is
court, be effected out of the Philippines by in rem or quasi in rem. The property is attached. So, with that,
personal service as under section 6; or by that seems the common denominator between Sec. 15 and
publication in a newspaper of general circulation the previous section following the Nieto ruling. Again, the
in such places and for such time as the court may difference between Sec. 14 and Sec. 15 is that in Sec. 14, the
order, in which case a copy of the summons and defendant is in the country but he cannot be found. In Sec.
order of the court shall be sent by registered mail 15, defendant is no longer in the Philippines and he cannot be
to the last known address of the defendant, or in found. Ang similarity nila, in both cases, the action must be
any other manner the court may deem sufficient. classified as in rem or quasi in rem. That is if we follow the
Any order granting such leave shall specify a Magdalena Estate ruling.
reasonable time, which shall not be less than sixty
(60) days after notice, within which the defendant The second question is: How do you effect service of
must answer. (17a) summons extraterritorialy?
Because this is what you call extraterritorial service of
What is the difference between the defendant here summons. Going back to Sec. 15, service of extraterritorial
and the defendant in Sec. 14. The defendant in Sec. 14 is summons are effected by leave of court by:
within the Philippines, only he is unknown or his whereabouts 1. by personal service as under
are unknown. Definitely, he is here. In Sec. 15, the defendant section 6;
does not reside in the Philippines. He is already abroad. And 2. by publication in a
he is not even in the Philippines temporarily. Iba yung newspaper of general
nagbabakasyon lang or balikbayan. So, the defendant does circulation in such places and
not reside and is not found in the Philippines. for such time as the court may
Can you sue a defendant who is not residing here order, in which case a copy of
and who is not even physically around? We already met that the summons and order of the
question in Rule 4 on Venue. And we said yes, provided the court shall be sent by
action is in rem like the action affects the personal status of the registered mail to the last
plaintiff or the action affects the property of said defendant in known address of the
defendant; or
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 3. in any other manner the
court may deem sufficient.
I want to sue my kumpare to recover a piece of land
from him. The property is in the Philippines. But he migrated
years ago to California and he never came back. I can sue
him because nandito man yung kanyang lupa. So, how do I
serve him the summons?
1 - Personal service of summons
The first way is by personal service as under Sec. 6.
The court will order that he will be served with summons just like
in Sec. 6. Paano? Siguro, I will tell the sheriff to go to the States
to serve the summons. Bigyan ko siya ng visa, round trip ticket
with pocket money. Lipay kaayo ang sheriff niana. That is
personal service. But that is very expensive. That could be
done pero impractical. Or, may isang balikbayan, kaibigan
ko. I will ask him to serve the summons to the defendant.
Pumayag naman. So, I will file a motion in court that the
defendant be served with summons personally. My friend, the
balikbayan, will serve. Di ba, we learned last night who can
serve summons? The Sheriff, proper court officer, or any
person especially authorized. Puwede. Or the third possibility
as stated by the SC in one case, the very recent case of
VALMONTE (which we will take up later) where the Philippine
court will course the summons to the Philippine Embassy or the
Philippine Consulate. The Philippine court will order send the
summons to the Philippine Consulate with the instruction to its
personnel to serve the summons to this Filipino citizen who is at
this address. That is personal service.
2 - By publication
The second manner is by publication which is similar
to Sec. 14. the court will order the summons and complaint to
be published in a newspaper of general circulation in such
places and for such time as the court may order. In which
case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the
defendant. So, aside from publication, another copy will be
sent by registered mail to his last known address. Doble-doble
no? Meron ng publication, meron pang registered mailing of
copy.
There were some interesting cases decided by the SC
on the second mode (by publication) which decisions are still
valid.
SAHAGON vs. CA
198 SCRA 44
The defendant who was in LA was
summoned by publication. And the
Philippine court ordered the summons to be
published in a Philippine Newspaper. The
defendant questioned the publication
saying that it should be in LA where he
resides. He argued that the what the law
contemplates is that publication should also
be in the place where defendant is residing.
Is that correct?
The SC said no. There is nothing in
Sec. 15 that it should be in a newspaper of
general circulation in a foreign place. Ang
sinasabi ng law is publication in a
newspaper of general circulation in such
places and for such time as the court may
order. If we will require the trial court to
publish the summons in a foreign
newspaper, then we will have to expect all
Philippine courts to have a list of all
newspapers in LA. Not only that, the courts
have to know the pertinent laws regarding
publication of said notice and how much.
Every court must have these data. And
suppose, is in San Francisco. Or he is in Paris.
Naloko na. Imagine the trouble? It is
requiring the court too much.
Here’s a third point I want to discuss in the case of
Sahagon. Suppose the defendant is abroad, he is not found in
the Philippines and he is summoned under Sec. 15. Like
personal service or by publication. There is a third one but we
will discuss that later. Now, because of Sec. 15, can you say
now that the court has acquired jurisdiction over the person of
the defendant? Definitely he can be sued. But when
summons is served extraterritorialy pursuant to Sec. 15, has the
Philippine court acquired jurisdiction over the person of the
non-resident defendant?
The court has not acquired jurisdiction. Because he is
outside the country. Kahit anong gawin natin, hindi talaga.
Even if he is served with summons, our processes have no
effect outside Philippine territory. But still, if after going through
all this trouble, the court still has not acquired jurisdiction over
his person, my question now is: Para saan pala ang trabaho
na ito? Kapoy-kapoy lang ko diay. Hindi pa rin pala maka-
acquire ng jurisdiction ang court. The purpose of this is not for
the court to acquire jurisdiction over his person but for the
purpose of complying with the due process clause of the Bill of
Rights. That no person shall be deprived of his property without
due process of law. Notice of hearing lang ito. Actually, hindi
man kailangan ang jurisdiction over your person. That is not
what is important. Ang importante is the res is in the country so
we can enforce the judgment. So ownership may be
transferred to plaintiff. So, hindi kailangan ang jurisdiction over
his person.
That has been emphasized by the SC in the Sahagon
case. The purpose of extraterritorial service under Sec. 15 is
compliance with the due process clause of the Constitution.
That defendant may be informed of the pendency of the
action and the possibility of losing his property. He is given the
chance to defend himself, if he wants to. How will he defend
himself? By hiring a lawyer. Laban tayo. The lawyer will of
course file an answer. If you do that, the court has now
acquired jurisdiction over your person by voluntary
appearance. Pero kung ayaw mong mag-answer, okay lang.
In the case of Sahagon, where the action filed was
recovery of land with damages, and summons by publication
was made, the SC said it can render judgment against the
property but the court cannot order him to pay the claim for
damages because that is in personam. But if he got a lawyer
and filed his answer, then, he is now submitting himself to the
jurisdiction of the court and there could be a valid judgment
on the property and the damages. The only relief that may be
granted in such an action against such a non-resident
defendant who does not choose to submit himself to the
jurisdiction of Philippine court is limited to the res. Yung
damages, wala. In personam, eh. Pero, if he files an answer,
tuloy-tuloy na yan. This time, there could be a valid judgment
upon the res and the damages.
3 - In any other manner the court may deem sufficient
The third manner is very broad. Let us cite an
instance where the court resorted to service of summons
abroad not personally nor by publication and yet it was
considered as validly made pursuant to the third mode.
CARIAGA JR. vs. MALAYA
143 SCRA 441
A minor through the natural
mother filed a case against his biological
father who is now abroad for compulsory
recognition to improve the status of the
child from illegitimate to legitimate child.
Page 125 of 296
 The complaint was filed declaring the child
as a pauper litigant. So, because the child
could not cause to serve the summons
either personally or by publication because
of his poor status, the court allowed the
same to be served by registered mail. The
defendant received it and questioned the
mode of service of summons because
according to him, it was not in accordance
with Sec. 15.
The SC said the service of
summons made by registered mail may fall
under the phrase in any other manner the
court may deem sufficient. The defendant
received the summons. Meaning, he was
notified. The requirement of due process
was met. Technicalities was set aside.
If you ask me, as a general rule, there is no such thing
as service of summons by registered mail. It is allowed under
Rule 13 for pleadings, motions, judgments, etc. But under Rule
14, as a general rule, summons cannot be served by registered
mail. It must only be either personal or substituted or by
publication. But because of the phrase in any other manner
the court may deem sufficient, the court sanctioned it.
The last sentence reads: Any order granting such
leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant
must answer. Take note that in extraterritorial service, the
period to answer may be longer. It is not only 15 days.
Definitely, it should not be less than 50 days. Let us go back to
Rule 11, Sec. 1:
Sec. 1. Answer to the complaint. - The
defendant shall file his answer to the complaint
within fifteen (15) days after service of summons,
unless a different period is fixed by the court. (1a)
Yes, unless a different period is fixed by the court.
And a perfect example to this is Secs. 14 and 15. Most
especially Sec. 15 because these are abnormal situations.
And take note that the similarity between Secs. 14 & 15 is that
there must always be a leave of court. A motion. How is this
done? Let us jump to Sec. 17:
Sec. 17. Leave of court. - Any application
to the court under this Rule for leave to effect
service in any manner for which leave of court is
necessary shall be made by motion in writing,
supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds for
the application. (19)
So, a motion in writing, supported by affidavit and
setting forth the grounds for the application. On January 22,
1996, the SC had a very interesting case on Sec. 15, about
service of summons, the case of:
VALMONTE vs. CA
252 SCRA 92
Lourdes Valmonte is a foreign
resident. Her husband, Alfredo Valmonte is
also her lawyer and holds office in the
Philippines. Obviously, the husband is
commuting to and fro. (I think he is the
same Valmonte in the case of Valmonte vs.
De Villa on validity of check points.) The
sister of Lourdes filed a case against her for
partition of real property. So, this is an
action in quasi in rem. The summons
intended for Lourdes was served on her
husband in the latter’s law office. Was there
a valid service of summons upon Lourdes
who is residing abroad but whose husband
is here and has a law office? Can the
summons be served on the husband? Para
bang substituted service.
The SC said: There is no valid
service of summons. First of all, the action is
partition of real property which is in the
nature of an action quasi in rem. As Lourdes
Valmonte is a non-resident, who is not found
in the Philippines, service of summons on her
must be in accordance with Sec. 15. Under
Sec. 15, there are 3 ways to effect service of
summons. Personal, publication and any
other manner. The service was not
personal. It was not by publication. Will it
fall under the 3rd manner?
The SC said: Since the case at bar,
service of summons was not done by means
of any of the first 2 modes, the question is
whether the service on her attorney and her
husband can be justified under the third
mode namely in any other manner the
court may deem sufficient? It cannot fall
under the third mode because the 3rd
mode of service of summons presumes that
the defendant is abroad. Meaning, you
serve the summons in any other manner
abroad. Not in any manner in the
Philippines. In this case, the summons was
served in the Philippines. So, it cannot fall
under the 3rd mode. Just like the first two,
the service should be made outside the
Philippines such as to the Philippine Embassy
of the foreign country where the defendant
resides. That was the first reason.
The second is: How do you serve
summons on a non-resident defendant?
There must be leave of court. Nobody filed
a motion in this case. Service of summons
made by the plaintiff to defendant’s
husband was without leave of court as
required by Sec. 15 as provided in Sec. 17
where such leave must be applied for in
writing, supported by affidavits, etc.
And the more important reason is
that since defendant is abroad, the law
guarantees him 60 days to file an answer.
But here, she was only given 15 days.
Therefore, there is a premature declaration
of default. She was not given ample time to
file her answer which according to the rules
shall not be less than 60 days after notice. It
must be noted that the failure to file an
answer in an action against a resident
defendant differs from the period in an
action filed against a non-resident
defendant who is not found in the
Philippines. In the former, the period is 15
days from service of summons. In the latter,
it is at least 60 days. For these reasons, the
court ruled that there was no proper service
of summons on Lourdes Valmonte.
Very interesting case. Very analytical. Secs. 15, 17,
etc. nandiyan na, eh.
Page 126 of 296
Service by publication, Sec. 16
Residents temporarily abroad
Sec. 16. Residents temporarily out of the
Philippines. - When any action is commenced
against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service
may, by leave of court, be also effected out of the
Philippines, as under the preceding section. (18a)
The defendant in Sec. 15 is not a resident of the
Philippines and is not found in the Philippines while the
defendant in Sec. 16, he is residing here but is temporarily out.
Example is if you’re out of the country, nagsuroy-suroy lang,
tapos a case is filed against you. How will summons be served
upon you during the period of your absence?
In the same manner that a non-resident defendant who is
outside is served. So, personal service, by publication, and in
any other manner.
If you want to wait for his return, then walang gasto.
You will serve your summons hindi extraterritorial. Personal
service.
MONTALBAN vs. MAXIMO
A sued B. B is from the Philippines
pero nag-tour. So, when the sheriff went to
the house of B somewhere in Makati,
katulong lang ang nandoon who informed
him that B was on a world tour. Ang balik is
mga 4-5 months pa. Sinerve ng sheriff ang
summons doon sa katulong. The service of
summons was done by leaving it in the
house of the defendant to a person of
suitable age and discretion residing therein.
So, substituted service. Can substituted
service of summons be applied to a
defendant who is residing in the Philippines
but temporarily out? Because under Sec.
16, summons may also be effected under
Sec. 15. But here, the summons was served
under Sec. 7.
The SC said substituted service of
summons is proper. We learned that
substituted service may be properly resorted
to by the sheriff only if for justifiable causes,
the defendant cannot be served in person
within a reasonable time. And in this case,
defendant cannot be served within a
reasonable time because he is abroad. To
serve him personally, you have to wait for
him 4-5 months more. so, the sheriff was
justified in resorting to substituted service.
The lesson here in the case of Montalban is that if
defendant ordinarily resides in the Philippines but is temporarily
out, he can be served with summons just like a non-resident
defendant under Sec. 15 but he can also be served with
summons under Sec. 7. That is the important principle there.
But there is something more beyond that.
In the case of Montalban,
tinanggap nga yung summons ng katulong.
Nag-lapse ang 15 days, no answer. Default
judgment. Naging final. Bumalik ngayon si
B. He questioned the service of summons.
Equity, daw. Kawawa naman ako. I was
never given a chance to defend myself. He
claimed to have been a victim of fraud,
accident, mistake, etc. Hindi ko alam na
may kaso ako. Bakit? Hindi ka ba sinabihan
ng katulong mo na may kaso ka? Ganito
kasi, eh. During the past months, I’ve been
moving from country to country. Wala
akong definite address. So, yung katulong
ko has no way of contacting me. Ikaw
pala? Did you contact her para
masabihan ka niya? No. You mean, during
all those times, you never bothered to
check on your house? What kind of person
are you?
You are very irresponsible. You leave your
house for 6 months and never bothered to
call to say hello? Kung nasunog ang bahay
mo, hindi mo alam? Anong klaseng tao
ka? So since the root cause is your
irresponsibility plus the fact that there was a
valid service of summons, you are bound by
the decision.
There is still a third factor in the
case of Montalban which, I do not know if
you noticed because service by publication
is also allowed. In the case of Montalban,
this was a collection case. It was an action
for sum of money or damages. So, in
personam. tapos, under Sections 14 & 15,
the rules apply only to actions in rem. So,
that is another difference, no. That a
defendant who is residing here but is
temporarily out of the country may be
summoned even when he is abroad even if
the action is in personam. that is why the
defendant in Sec. 16 is treated differently
from those found in Secs. 14 & 15.
Now, we go back to the provisions that we skipped
earlier.
Sec. 8. Service upon entity without juridical
personality. - When persons associated in an entity
without juridical personality are sued under the
name by which they are generally or commonly
known, service may be effected upon all the
defendants by serving upon any one of them, or
upon the person in charge of the office or place of
business maintained in such name. But service
shall not bind individually any person whose
connection with the entity has, upon due notice,
been severed before the action was brought. (9a)
This is related to a provision which we already
studied. Rule 3, Sec. 15:
Sec. 15. Entity without juridical personality as
defendant. - When two or more persons not
organized as an entity with juridical personality
enter into a transaction, they may be sued under
the name by which they are generally known or
commonly known.
In the answer of such defendants, the
names and addresses of the persons composing
said entity must all be revealed. (15a)
Rule 3 answers the question: When 2 or more persons
are associated and they transact with the public through an
entity without a juridical personality, and the people who
composed that entity are unknown, can you sue them through
the name of the entity? Yes, because we do not know the
real defendants although they have to reveal themselves
later. And in such a case, summons is served or may be
effected upon all the defendants by serving upon any one of
them xxx. At least, kung isa lang ang kilala mo, dala na lahat.
Or upon the person in charge of the office or place of business
maintained in such name. Whoever is in charge, whether he is
one of them or an employee, puwede.
Page 127 of 296
 Sec. 9. Service upon prisoners. - When the
defendant is a prisoner confined in a jail or
institution, service shall be effected upon him by
the officer having the management of such jail or
institution who is deemed deputized as a special
sheriff for said purpose. (12a)
In other words, ang ginademanda mo nasa loob ng
presohan. Under the law, para ma-effect ang service, iwanan
ng sheriff sa warden at siya na mag-serve sa kanya. So, ang
warden is the person in charge or having the management
who is deputized as a special sheriff. These are rare situations
Sec. 10. Service upon minors and
incompetents. - When the defendant is a minor,
insane or otherwise an incompetent, service shall
be made upon him personally and on his legal
guardian if he has one, or if none, upon his guardian
ad litem whose appointment shall be applied for by
the plaintiff. In the case of the minor, service may
also be made on his father or mother. (10a, 11a)
There is no problem about minors. Pero pag-insane or
incompetent, you serve the summons on him and also on his
guardian. So, dalawa. Kung minor naman, on his father or
mother. Pero nagtataka ako why the law does not say service
should be made on the guardian or on the mother or father.
Bakit on the insane and the guardian. Bakit bigyan mo pa
ang insane? Punitin lang yan. Pati minor, bigyan mo pa!
Anong malay niya doon? But anyway, ang importante, yung
copy ng guardian or parent.
Now, we come to a more important provision. How
do you serve summons upon a domestic private juridical
entity? Because a defendant could be a natural person.
Wala tayong problema sa natural. Service could be effected
by personal, substituted or by publication. Suppose, a
defendant is a partnership or a corporation. Sec. 11, which
used to be Sec. 13 of the old rules, has also undergone radical
amendments. There is a very big change in the manner of
service of summons upon private corporations under the new
law. We will discuss this later.
Sec. 11. Service upon domestic private
juridical entity.- When the defendant is a
corporation, partnership or association organized
under the laws of the Philippines with a juridical
personality, service may be made on the president,
managing partner, general manager, corporate
secretary, treasurer, or in-house counsel. (13a)
So, the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a
juridical personality. So, we are talking here of a domestic
private corporation. All these big firms here are actually
private domestic corporations. Now common sense will tell
you that you cannot serve summons to a corporation because
it has no physical existence. It has legal existence but it has no
body. Therefore, you have to serve the summons through
people who run the company. and who are these people
whom service should be made? They are enumerated in Sec.
11.
So, the president. Minsan tinatawag pa na chief
executive officer or CEO. Managing partner. You are talking
of a partnership. General manager. Take note that there is an
emphasis on the word general under the new rules. Because
a corporation can have many types of managers. Sa isang
business firm, for example, merong branch manager like
Davao City Branch Manager, or Cebu Branch Manager. The
law refers to the general manager, yung over-all. He is the
over-all manager of the entire corporation throughout the
Philippines. And then corporate secretary. The secretary of
the corporation. The prior law says secretary. But actually, the
interpretation is corporate. Hindi yung typist secretary. Hindi
yung filing clerk. They are mere employees. A corporate
secretary is also an officer of the corporation. He is a member
of the board. He holds the minutes and records of the
corporation. And he is also a stockholder. So, the new law
has made it clearer. Treasurer. Custodian of the funds. The
prior law uses the word cashier. Pero it could refer to an
employee also who is just giving out the money ordered by the
company. So, treasurer is more appropriate. Or, in-house
counsel. This is something new. A corporation employs an in-
house counsel. Not the lawyer of the company who is a
practicing lawyer. While this is not found in the old law, that is
taken from decided cases. The SC said in those cases that if
you serve summons on the internal (in-house) counsel of a
corporation, That is a valid service of summons. Because he is
in a better position on what to do. If you send it to the
president or general manager, chances are ibigay man din
yan sa in-house counsel dahil he knows what to do with it.
That was the ruling in several cases and among them are:
PHIL. OIL MKTG. CORP. vs. MARINE DEVT
CORP.
117 SCRA 89
FAR CORP. vs. FRANCISCO
146 SCRA 197
Where the SC said that service of
summons on internal counsel for defendant
corporation who is in charge of legal
matters affecting the corporation inclusive
of cases filed for and against it, is a valid
service of summons.
I’m going to give you now a very radical change
based on the amendment under Sec. 11 to which I do not
agree because of this radical change. I am not so sure now of
what is the implication of the new amendment. If you look at
the 64 Rules, particularly Sec. 13, Rule 14, that is the
counterpart, eh. Let us take a look at the provision:
Sec. 13. Service upon private domestic corporation
or partnership. - If the defendant is a corporation
organized under the laws of the Philippines or a
partnership duly registered, service may be made on
the president, manager, secretary, cashier, agent, or
any of its directors.
So, if you notice, there are persons mentioned which
are now deleted in the new rule. The words agent, or any of its
directors. The word agent is so broad the SC considered
service of summons on some other people other than those
mentioned as valid because of the word agent. The SC,
based on that, has ruled that service of summons on a branch
manager is valid. Because a general manager is in Manila.
ang mga na-assign sa probinsiya ay mga branch managers.
But they are the most powerful in that area. So, service on a
branch manager was held as valid because he is an agent.
GESULGON vs. NLRC
219 SCRA 561 (1993)
The service of summons on the
assistant general manager of the
corporation was considered as valid
because it falls under the word agent.
R. TRANSPORT CORP.
241 SCRA 77 (1995)
The service of summons on the
company’s operations manager was
considered as valid because it falls under
the word agent.
FAR CORP. vs. FRANCISCO
146 SCRA 197
Page 128 of 296
 The summons was served on the
chief of finance and administrative section
of the corporation and the court said it was
valid because it falls under the word agent.
So, you will notice that in all these decided cases, if
you will serve the summons on an officer of the corporation
even if the officer is not among those mentioned but is a
responsible officer, the SC said puwede because it falls under
the word agent. According to the SC, the rationale of all rules
for service of process on a corporation is that service should be
made on a representative so integrated with the corporation’s
suit as to make it ---- that he will realize his responsibilities and
know what he should do when any legal paper is served on
him. Like for example, we will serve it on the branch manager
of Davao City. We presume that this guy is responsible and
that he knows the risks. He will of course bring it to the
attention of the head office.
How about ordinary employees? Based on decided
cases, the word agent comprehends officers. Halimbawa,
yung clerk. Puwede. The general rule is no as stated by the
SC in the case of:
DELTA MOTORS vs. MANGUSING
70 SCRA 598
ATM TRUCKING vs. BUENCAMINO
124 SCRA 434
The laborers were not considered
as agents because they are not officers.
But there are also cases I have to admit
where service of summons on a mere
employee was considered as valid on the
ground that it falls under the word agent
especially if it is presumed that you have a
lot of common sense.
SUMMIT TRADING vs. ABENDANO
135 SCRA 397
The summons was served on the
personal confidential secretary of the
president. You cannot see a president of a
corporation without passing the confidential
secretary. so, doon naibigay. The court
said that the service of summons on the
personal confidential secretary was valid
because it falls under the word agent on
the assumption that she knows what to do.
And as a matter of fact, the SC has even relaxed it in
the other cases as in the case of Delta Motors, Mangusing, etc.
The SC said service on ordinary employees is not valid
because they are not agents or officers. But in some cases,
even service on an ordinary employee like a clerk or typist or a
filing clerk was valid. The clerk of course gave the summons to
his superior and the SC said the service was valid because it
actually reached the proper officer. Kahit mali ang binigyan
mo, kung nakarating naman sa kinauukulan, there is now a
valid service. Na-cure ba. A corporation should not rely on
technicalities. So, kung ako ang corporation tapos it was
served not on the officer, ah I will not answer. Hindi ako
bound. That is very technical. Along these cases are:
J&J CORP. vs. CA
158 SCRA 466
GOLDEN COUNTRY vs. SUNBAR
214 SCRA 295
Service of summons was effected
through an ordinary clerk. Technically, he is
not even considered an agent. The SC said
that service of summons on the clerical
secretary is valid. Although the service of
summons was made on a person not
authorized to receive the same on behalf of
the corporation, there was substantial
compliance with the rule since summons
and complaint were in fact received by the
corporation through its clerk. The need for
speedy justice must prevail over a
technicality.
I repeat, in all these cases service on the finance
officer, operations manager, asst. manager, branch manager,
confidential secretary, even clerk were held as valid under the
old rules because they all fall under the word agent. But, I
noticed under the new rule, that word was removed. And if
you look at sec. 11, the people to whom summons should be
made is now limited to the president, managing partner,
general manager, corporate secretary, treasurer and in-house
counsel. The word agent is removed. What is the implication
of that? That is a very nice question. Does it mean to say that
the purpose of the rule is to abrogate all those decided cases?
Because if the intention was to retain it, it should have been
reproduced. So, it is possible it is now limited.
Yan ang mahirap ngayon. I have to admit. Because
if you are from Davao and you will sue a corporation, the
branch manager will not qualify anymore. Eh, yung general
manager usually nasa Manila ang mga yan. I don’t think they
are holding office in Davao. They are all based in the head
office. So, if the intention of the law is to limit the service to
these people, mahirap if you are from the province. Because
the summons is to be transmitted to Manila and serve there on
the right officer. But it is also possible that notwithstanding the
removal of the word agent, there is no intention to abrogate
all those jurisprudence on the theory that let us not be
technical. So, this is a gray area. So, remember this.
Kaya nga itong Sec. 11 is very controversial as far as I
am concerned. Suppose I serve it on other responsible persons
other than those mentioned, is there a valid service of
summons? Both sides are defensible. If you maintain no, it can
be defended. If you say yes, it can also be defended. So,
there are arguments to both sides. That is why I believe that
there should be a case to arise on that issue para malaman
natin ano ang sagot. Is the old jurisprudence still good or no
more?
Sec. 12. Service upon foreign private
juridical personality. - When the defendant is a
foreign private juridical entity which has
transacted business 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.
(14a)
The defendant here is also a private juridical entity.
But this time it is foreign entity during business in the Philippines.
We already discussed this in Rule 11, mga foreign airlines,
foreign banks, etc. If you sue them, the service may be made
on its resident agent designated by law for that purpose. If
there be no such agent, which is very surprising, on the
government official designated by law to that effect. So, DTI
Secretary, Insurance commissioner. That is why this is related to
Rule 11, Sec. 2. Let us go back to that provision:
Sec. 2. Answer of a defendant foreign
private juridical entity. - Where the defendant is
a foreign private juridical entity and service of
summons is made on the government official
designated by law to receive the same, the
answer shall be filed within thirty (30) days after
receipt of summons by such entity. (2a)
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 If the service of summons is made on the Philippine
government official, under Rule 14, who will now transmit it to
the head office of the corporation abroad, according to Rule
11, the period to answer is 30 days from receipt of the
summons abroad. But if the foreign corporation has a
designated resident agent in the Philippines and summons is
served on him, the period to answer is only 15 days just like any
other defendant.
NORTHWEST KOREAN AIRLINES vs. CA
241 SCRA 192 (1995)
If the corporation has a be sued in a Philippine court when actually it cannot be sued.
designated resident agent, then summons
must be served to him exclusively in order to
make the service valid. Meaning, he is the
exclusive person to whom summons should
be served. If the foreign corporation has a
designated resident agent to receive
summons, the designation is exclusive and
service of summons is without force and
gives the court no jurisdiction unless made
upon him. It is only when there is no
designated resident agent that you can
serve summons to other people mentioned
in Sec. 12.
What condition for a foreign private corporation to
be made a defendant under Sec. 12 and validly served with
summons? According to sec. 12, it must be a foreign private
juridical entity which has transacted business in the Philippines.
Normally, these corporations are what we call resident foreign
corporations. They are doing business here. Like airlines, di
ba? Foreign banks, too. These are resident foreign
corporations doing business in the Philippines.
Suppose a foreign corporation is not doing business in
the Philippines. There must be thousands of other foreign
corporations not doing business in the Philippines. The best
gauge is walang Philippine office. Walang branch dito. Can
you sue a foreign corporation which is not doing business in
the Philippines? No. Just like the question can you sue a
defendant who is not residing here and is not physically
around. No because the court can never acquire jurisdiction
over that person or foreign corporation.
Problem: A businessman in Davao wanted to buy
certain machineries in Europe. He learned that there is only
one company in the world supplying these machines. That
company is not even operating in the Philippines. So, the
Filipino businessman went all the way up to Europe.
Contacted the company and placed his order. So the
machine was installed by the foreign company here in the
Philippines. Later on the machine faltered. The Filipino
businessman would like to sue the foreign company which sold
the machine for breach of warranty. He sued the foreign
corporation in Philippine court. can the foreign corporation be
sued in a Philippine court?
Is it doing business in the Philippines or not? Sabi ng
plaintiff, yes. Eto nga nakabili ako, eh. The SC said the plaintiff
is wrong. Doing business does not refer to something isolated,
casual or incidental. It refers to something continuous. The SC
said: doing business is construed to mean such continuity of
conduct and intention to establish a continuous business. An
isolated transaction which is occasional, incidental or casual
and which do not (?) intent to conduct a continuous business
do not constitute doing business in the Philippines.
Technically, that foreign corporation cannot be sued
in Philippine court. Your remedy is to go back to Europe and
sue it there. Definitely, Philippines court cannot acquire
jurisdiction over the foreign corporation because it is not doing
business in the Philippines. This becomes clearer when you
study corporation law.
Let us try to analyze this doctrine in relation to the
case of Lingner & Fischer which we have already discussed. I
even asked that in your first exam. This has to do with the CA’s
power to receive evidence. In the case of Lingner & Fischer,
a Filipino company entered into a transaction with a foreign
company in Germany which is Lingner & Fischer. But Lingner is
not doing business in the Philippines. Both parties entered into
a contract. In the contract, it says that all legal settlements
within the compass of the agreement shall fall under the
jurisdiction of Philippine courts. Meaning, it says there that any
case arising out of this contract, it shall be resolved by
Philippine courts. In effect, the foreign corporation agreed to
Later on a case was filed against Lingner. The trouble is how
do you serve summons on a foreign corporation not doing
business in the Philippines but agreed to be sued?
You cannot apply Sec. 12 because the foreign
corporation is transacting or doing business in the Philippines.
Here, it is not although it agreed to be sued in Philippine court.
If that is so, is the agreement to be sued in Philippine court a
valid agreement? The SC said yes by analogy with Rule 4
about stipulation as to venue. So, by analogy, a foreign
corporation can be sued in Philippine court because of its
agreement. By analogy with Rule 4 that venue can be
stipulated.
So, how do you serve summons when there is no
provision governing that? The SC said: By analogy, we apply
Sec. 15, suing an individual defendant who is not residing in
the Philippines and is not physically found. So, the manner of
serving summons extraterritorialy on a non-resident defendant,
by analogy, would also be applied to service of summons on a
private foreign corporation not doing business in the
Philippines but which agreed to be sued in Philippine court.
So, ang ginamit is Sec. 15 by analogy.
Sec. 13. Service upon public corporations.
- When the defendant is the Republic of the
Philippines, service may be effected on the
Solicitor General; in case of a province, city or
municipality, or like public corporations, service
may be effected on its executive head, or on such
other officer or officers as the law or the court may
direct. (15)
The Republic of the Philippines is a public
corporation. So, if you sue the Republic and make it as a
defendant, (of course in cases only where it can be sued
because normally it cannot be sued), summons may be
effected on the Solicitor General being the representative of
the Republic. Kung provinces, cities or municipalities, like the
City of Davao, service may be effected sa executive heads
like the provincial governor, municipal mayor or the city
mayor. Or on such other officer or officers as the law or the
court may direct. Puwedeng sabihin ng court that the
summons be served on the city legal officer. so, there is still a
valid service of summons.
Sec. 18. Proof of service. - The proof of service of a
summons shall be made in writing by the server
and shall set forth the manner, place, and date of
service; shall specify any papers which have been
served with the process and the name of the
person who received the same; and shall be sworn
to when made by a person other than a sheriff or
his deputy. (20)
This is what we call a sheriff’s return, di ba? He will
state the manner and place of date. Manner - Substituted or
personal? Place and date. To whom served? To defendant
personally or to such other person of sufficient age and
discretion? MPD - manner, place and date. Then you specify
that you serve also the complaint. Name of person who
received the same. Is it the defendant personally or his wife or
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whoever. Must the return be sworn to? No need except
when made by a person other than a sheriff or his deputy.
Remember puwedeng mag-serve yung person especially
authorized.
Sec. 19. Proof of service by publication. - If the
service has been made by publication, service may
be proved by the affidavit of the printer, his foreman
or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of
the publication shall be attached, and by an
affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid, directed to the defendant
by registered mail to his last known address. (21)
This is only a continuation of Sec. 15 that one of the
modes of extraterritorial service is by publication in a
newspaper of general circulation in which case a copy of the
service of summons shall also be sent by registered mail to the
last known address of the defendant. The registered mail
there is together with the publication. But please remember as
a general rule, there is no such thing as service of summons by
registered mail. That is only allowed in Rule 13. Service here is
an additional requirement for the publication. There is one
instance where the court sanctioned the service by registered
mail in the case of Carriaga vs. Malaya. It falls under in any
other manner. But technically, I repeat, technically, under
Rule 14, there is no such thing as service of summons by
registered mail. That is only recognized in Rule 13. Of course
may affidavit ng editor or publisher. Together with the copy,
anong issue.
Sec. 20. Voluntary
appearance. - The defendant’s voluntary
appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall
not be deemed a voluntary appearance. (23a)
How does a court acquire jurisdiction over the person
of a defendant in a civil action? By service of summons. Is
there any other way? Yes, sec. 20 says The defendant’s
voluntary appearance in the action shall be equivalent to
service of summons. Voluntary appearance in the action. For
example, the defendant, without being served with summons
learned that a case was filed against him. Pag-verify niya,
totoo. So, he asked a lawyer sagutin mo na. Hindi hintayin
ang summons. So, even without being served with summons
and he files an answer, with that, the court has acquired
jurisdiction over his person.
Or, you are served with summons improperly. The
summons was served to your son who is only 4 years old but
your child gave it to you. The defect is already cured because
what is important is that the summons reached you. (tape
ends)
End of Rule 14.
Rule 15
MOTIONS
What is a motion? Define motion. Let us read Sec. 1:
Sec. 1. Motion defined. - A motion is an
application for relief other than by a pleading.
(1a)
A motion is an application for relief other than by a
pleading. A pleading, like a complaint or an answer, actually
prays for relief. Normally, in a complaint, it says: Wherefore, it
is respectfully prayed that judgment be rendered in favor of
the plaintiff ordering defendant to pay him P1M. Or, that
judgment be rendered ordering defendant to vacate
plaintiff’s property. That is the relief that plaintiff is asking for in
his complaint. Defendant, on the other hand, will state in his
answer: That judgment be rendered dismissing the complaint
for lack of merit. So, a pleading, whether a complaint, an
answer, a counterclaim, etc., seeks judgment for or against
the party.
But in the course of the trial of the case, it is very
normal for a party or the lawyer to seek other reliefs from the
court other than what he is asking for in his complaint or in his
answer. You are asking the court for some favor, ba. Like
what? Like for example your trial is next week and then you
are sick. So, you will ask the court a favor. Ano yun? That the
scheduled trial next week be postponed because of illness of
the party or illness of the lawyer or unavailability of witnesses.
Now, you are not asking for a decision. You are merely asking
a favor. How do you do it? You do not file a complaint. You
file a motion. Motion for postponement. That is what a motion
is all about. The main relief in the complaint is sought for in the
complaint, or in the answer or in any other pleading. But all
other reliefs which have nothing to do with the decision of the
case are sought for by filing a motion. Motion for extension of
time to file answer. Motion for bill of particulars. Motion for
postponement.
Pleading vs. Motion
So, how do you distinguish a pleading from a
motion? A pleading directly relates to a party’s cause of
action or defense. A motion has nothing to do, generally, on
your cause of action or defense because it is simply an
application for relief other than by a pleading. And
technically, under the rules, a motion is not a pleading.
Tandaan niyo yan. Pleadings are limited to those enumerated
in Rule 6 - complaint, answer, cross-claim, counterclaim, etc.
But if you look at a motion, it looks like a pleading because it is
typewritten, meron ding caption. That is why, the last section
of Rule 15, Sec. 10 says: The Rules applicable to pleadings shall
apply to written motions so far as concerns caption,
designation, signature, and other matters of form. In form, it
looks exactly like a pleading but under the law it is not a
pleading.
Although among the members of the bar and the
bench, we use the term pleading liberally. Everything we file in
court we call pleadings. You file a complaint. Pleading. You
file an answer. Pleading. You file a motion. We also call it
pleading. You file a manifestation. Pleading. Basta lahat na i-
file sa court, pleading. Kahit sa criminal cases, sometimes we
refer to information filed before the fiscal as pleading. But
technically, that is not accurate. Pleadings are only those
mentioned in Rule 6. Motions are not pleadings. Although
they look like pleadings. And in the rules on criminal
procedure, there is no such thing as pleadings. The rules on
pleadings apply only in civil cases. Ano pala ang information?
It is still information. Have you seen the word pleadings in
criminal procedure? Wala man ba. That word has never
been used in the rules on criminal procedure. The use of
pleading is just a loose use of the term.
The next sections, from Sec. 2 to Sec. 6 will tell us what
are the requisites of a valid motion. Let us go to the first
requisite:
Requisites of a valid motion
Sec. 2. Motions must be in writing. - All motions shall be
in writing except those made in open court or in the
course of a hearing or trial. (2a)
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 (1) All motions must be in writing. Except those made
in open court or in the course of a hearing or trial. Because it is
possible that in the course of a trial, a lawyer would say: Your
Honor, we move xxx. You do not have the time to put that in
writing. Because anyway, it is officially recorded. So, those
made in open court or in the course of a hearing or trial can
be done orally. Like for example, you are trying a case, tapos
pagtingin mo sa relo quarter to twelve na. Di matapos, no?
So, what do you do? You move for continuance. The judge
will not require you to have that typed pa. You have no more
time. Anyway, it is recorded. That is the first requisite.
Sec. 3. Contents. - A motion shall state the relief sought
to be obtained and the grounds upon which it is based,
and if required by these Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavits and other papers. (3a)
(2) It shall state the relief sought to be obtained and
the grounds upon which it is based. Actually, the form is like a
complaint. First, you sight the basis. And then the prayer.
Wherefore, it is respectfully prayed that an order be issued.
Like for example, the case is set for trial next week, I verified
that my client who will testify is not around. He is sick and he
would be unable to come to court to testify. So, that is the
ground upon which your relief is sought. And therefore, it is
respectfully prayed that the scheduled trial next week be
transferred to another date. That is the relief sought.
(3) The third requirement is also found in Sec. 3. Is it
necessary to support your motion with supporting affidavits
and other papers? The answer is yes. If required by these rules
or necessary to prove facts alleged therein, then, the motion
must be accompanied by affidavit and other supporting
papers. But if not required by the rules or it is not necessary to
prove facts alleged therein, then, there is no necessity of
supporting your motion with affidavits and other papers. Give
an example of a motion where you have to prove your
grounds by means of supporting affidavits and other papers. I
am moving for postponement because my next witness is sick.
He is confined at the hospital. How do you convince the court
that your witness is in the hospital? Hereto attached is the
medical certificate of the attending physician. The motion
therefore is backed up by affidavits or medical certificate.
But if the basis for the motion is already part of the
record, there is no need of supporting it with affidavits or
documents. Meaning, the grounds can easily be verified on
the record. Example: A motion to declare defendant in
default. What is usually the allegation there? Defendant was
served with summons on December 20. It is now January 20,
one month thereafter. So far, no answer has been filed by the
defendant. Wherefore, I move that the defendant be
declared in default. How will the court know that the
defendant was served with the copy of the complaint on a
certain period? Very easy. You look at the sheriff’s return
because it will contain his report. I have served the defendant
a copy of this date. How do you prove that no answer has
been filed? You look at the records. If there is an answer, it
must have been attached to the record. So, hindi na
kailangan ng affidavit. The court can easily verify that your
ground is accurate and it will act on your motion. That is what
is meant by Sec. 3.
Sec. 4. Hearing of a motion. - Except for motions
which the court may act upon without prejudicing
the rights of the adverse party, every written motion
shall be set for hearing by the applicant.
Every written motion required to be
heard and the notice of the hearing thereof shall
be served in such a manner as to ensure its receipt
by the other party at least three (3) days before the
date of the hearing, unless the court for good
cause sets the hearing on shorter notice. (4a)
(4) Every written motion shall be set for hearing by the
applicant. Meaning, I am going to present this to the court on
this date, at this time. It will be formally set for hearing.
Normally, as you will see in Legal Forms, after sa motion mo,
meron diyang notice of hearing where you are going to state
that you are going to submit this motion for the consideration
of the Honorable Court, let’s say, on Friday, January 23, 1998
at 8:30 am. The opposite party can file his opposition and will
appear in court on January 23 in order also to argue why your
motion should not be granted. Yan ang tinatawag na set for
hearing. Ikaw naman, nag-file ka ng motion, normally, when
you go to court, you just tell the court: Your Honor, we are
formally submitting our motion for court resolution.
Except what? Except for motions which the court
may act upon without prejudicing the rights of the adverse
party. Are there certain motions which need not be set for
hearing? Meaning, when you file the motion, the court can
immediately grant your motion. Pag-file, aksiyonan agad ng
court. Like yung mga motions na hindi controversial. Example:
Motion for extension of time to file answer. 99.99% even 100%
pa siguro, the court will grant that. Normally, we do not set
that for hearing anymore. Pag-file ng motion, granted
kaagad. That is falling under the exception.
Three-day notice requirement
Going back to the general rule: When you set your
motion for hearing, see to it that your opponent receives a
copy of your motion at least three (3) days before the date of
the hearing. The law says: Every motion shall be served in
such a manner as to ensure its receipt by the other party at
least three (3) days before the date of the hearing, unless the
court for good cause sets the hearing on shorter notice.
Minimum yan, three days. So, if I will set it for hearing on Friday,
kailangan I have to see to it that the opposing lawyer has
received a copy of the motion today, Tuesday. What is the
reason behind the three-day notice? To give the opposing
counsel a chance to study your motion. Give him a chance to
oppose it. So, you are not allowed to file a motion today and
setting it for hearing tomorrow. That is violative of the three-
day notice requirement.
What happens if a party files a motion serving upon
the adverse party the motion in less than three days? The SC
said: The court may refuse to take action on a motion which
does not comply with the rule requiring a three-day notice to
the adverse party. That is the general rule. That is why,
according to the new rule, you serve it in such a manner as to
ensure its receipt by the other party. This supports the new
provision in Rule 13, Sec. 11 that personal service is preferred to
service by mail.
Sec. 11. Priorities in modes of service and filing. -
Whenever practicable, the service and filing of
pleadings and other papers shall be done personally.
Except with respect to papers emanating from the
court, a resort to other modes must be accompanied
by a written explanation why the service or filing was
not done personally. A violation of this Rule may be
cause to consider the paper as not filed. (n)
This is the best example. Kung personal service, you
are assured that the opposing party received a copy. Kung
by mail, hindi ka sigurado, eh. I will connect this with Rule 13.
Say, file ka ng motion ngayon, Tuesday. On Friday, you are
there arguing. Wala ang kalaban mo. Judge: Did you furnish
a copy of your motion to the other party? Yes, Your Honor. As
shown in the record, Your Honor, we mailed to him the copy
last Tuesday. So, three days ago. Do you expect him to
receive the copy on the same day? Chances are, he just
received it yesterday, Thursday. So, there is a violation of the
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rule. And therefore, I will not act on your motion because you
violated the three-day requirement. Either we will reset this or I
will deny your motion. And I will ask you to file it all over again.
Kaya nga, in Rule 13, personal service is preferred because we
can know the exact date when your opponent received it.
This is the best way to apply the rule that personal service is
preferred to service by mail. Because the law says it be must
served in such a manner as to ensure its receipt at least three
days before the date of hearing.
Anyway, ang opposite lawyer will read this also and
he will surely get the message. Normally, pinabayaan na yan
na practice. But if you look at the law, you should not address
it to the clerk of court. The law says you address it to the
parties concerned. It is a very minor defect. Take note that
there was one case, at least one:
PRADO vs. BERENGIANO II
204 SCRA 654

Is there an exception? Is there an instance where the The notice of hearing was
court can waive the three-day period? The law says unless the addressed to the clerk of court (just like
court for good cause sets the hearing on shorter notice. what some lawyers are doing). You know
Usually mga urgent motions. You file the motion today and it what the SC said? Sec. 5 of Rule 15
will be heard tomorrow. For instance, your witness got sick one explicitly provides that the notice of hearing
day before the trial. The trial is tomorrow, then you learned in a motion shall be addressed to all parties
today na nagkasakit. So, I will file a motion for postponement concerned and shall state the time and
today. Or even tomorrow morning. Your honor, wala akong place for the hearing of the motion. A
witness. Ah, hindi. Walang three-day requirement. Paano ko notice of hearing addressed to the clerk of
ma-comply, eh, kahapon nga lang nagkasakit. Anong malay court and not to the parties is no notice at
ko. Yan ang mga urgent situations. all.
Therefore, if there is no notice at all, in effect, Sec. 5
Notice of hearing has not been complied with. As I said, it is a very minor error.
Now, what happens if you file a motion without any notice of
Sec. 5. Notice of hearing. - The notice of hearing? Worse. Unless, it falls under Sec. 4 where the motion
hearing shall be addressed to all parties concerned, may be acted upon by the court without prejudicing the rights
and shall specify the time and date of the hearing of the adverse party. But definitely, if a motion contains no
which must not be later than ten (10) days after the notice of hearing, the motion is fatally defective and it can be
filing of the motion. (5a) denied. That is what the SC said exactly. A motion which
contains no notice of hearing is ordinarily treated as a mere
(5) That is the fifth requisite. As I said in a motion, sa scrap of paper which produces no legal effect. Because you
last part niyan, may notice of hearing. How does it look? You violate Sec. 5. Normally, that is what we do. The ground is
will learn that in your study of legal forms. meritorious, pero gusto mong i-oppose, hanapan mo ng butas.
No notice of hearing. Tama man ba. And the motion will be
Notice of Hearing denied. Balikan ka naman ng kabila. Di i-file uli. At least, na-
deny yung motion niya mainly because of one technicality. It
Atty. Juan dela Cruz contains no notice of hearing.
Counsel for defendant
San Pedro St., Davao City Now, this phrase which must not be later than ten
(10) days after the filing of the motion is a new phrase inserted
Greetings! Please take only in the 1997 Rules. There are some lawyers who are
notice that the mischievous. The period to answer is 15 days, di ba? Instead
undersigned is submitting of answering, they will file a motion to dismiss under Rule 16.
the foregoing motion for Under the rules, the filing of a motion to dismiss will stop the
the consideration and running of the period to answer. You have to wait. Kahit na
approval of the alam niyang yung motion niya will be denied, sige lang. Alam
Honorable Court on mo anong gawin niya? He will file the motion in January, he
Friday, January 23, 1998 will set the hearing on March. Di dalawang buwan walang
at 8:30 am. kikilos. Talagang patagalin ba. So, the period to answer is
suspended from January to March. Sixty days. Tapos, pag-
deny in March, o sige, sasagot na ako. My golly. So, in order
to avoid that practice, the law now limits. Pag-file mo ng
Signed motion, the hearing must not be later than ten days. That is
the maximum under Sec. 5. Actually, ang minimum is three
That is how it looks like. It is addressed to the adverse days under Sec. 4.
party through his lawyer. Now, I have seen many times where
the lawyer has addressed the notice to the clerk of court.
Instead of addressing Atty. Juan dela Cruz: Proof of service required

Notice of Hearing Sec. 6. Proof of service necessary. - No

written motion set for hearing shall be acted upon
The Branch Clerk of Court by the court without proof of service thereof. (6a)
Regional Trial Court
Branch ____ (6) That is the last (sixth) requisite. This is in
Davao City accordance with Rule 13. As a general rule, you cannot file
anything in court without furnishing a copy to your opponent.
Greetings! Please set or Another way of saying it is you cannot file an ex parte motion.
schedule the foregoing That is why according to the SC, if there is no proof of service
motion for the of a motion which presents a question which the court will
consideration and decide, the court has no right to consider it. Nor has the clerk
approval of the of court the right to receive it. A motion without proof of
Honorable Court on service is not in fact a motion. If it is not a motion, what is it? It
Friday, January 23, 1998 is a scrap of paper.
at 8:30 am.

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Exceptions
Let us go to exceptions. Is there an instance when
you can file a motion without furnishing a copy of your motion
to your opponent? Well to my mind, yes, because of Sec. 4.
Motions which the court may act upon without prejudicing the
rights of the adverse party. Yun ngang mga hindi
controversial. Example: Motion for extension of time to file
answer. Normally, ex parte yan. Walang notice of hearing.
Malaman na lang nung kalaban na may order. Upon motion
of Atty. so and so for the defendant is asking for a period of
ten days within which to file his answer. May abogado na
pala ang defendant. You only come to learn that upon
receipt of the order from the court. Actually, the counsel for
the defendant never bothered to furnish me a copy of the
motion for extension of time and that is tolerated. Anyway,
the motion is de-kahon ba. It will not prejudice the rights of the
adverse party. But if you furnish a copy to the other party, that
is better. That is the general rule.
So, those are the requisites of a valid motion. Just
outline sections 2 to 6.
Sec. 7. Motion day. - Except for motions requiring
immediate action, all motions shall be scheduled
for hearing on Friday afternoons, or if Friday is a
non-working day, in the afternoon of the next
working day. (7a)
That is what the rules say. Friday is designated as
motion day. Kung mag-file ka ng motion, ipa-schedule mo for
hearing Friday afternoon. If the motion is urgent, I have to
schedule it earlier. Monday ngayon. I want it earlier.
Puwede? Yes because the law says except for motions
requiring immediate action. Urgent. I do not know if judges
are strictly observing this. Some judges do. Usually, Friday
morning kasi pag-afternoon, ang mga empleyado diyan,
ayaw ng magtrabaho. They want to go out of the court na.
Noon, under the old rules, every Saturday morning yan. Puro
motions lang. So, if there are 30 cases, may lawyer for each
party, so 60 lawyers kada courtroom. So, every Saturday is like
a reunion. Lahat may motion eh. So, today, it is every Friday
unless it is a holiday. So, Monday pa. But again, some judges
do not follow this. Ang iba pa nga, everyday.
Omnibus motion rule
Sec. 8. Omnibus motion. - Subject to the provisions
of section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall
include all objections then available, and all
objections not so included shall be deemed
waived. (8a)
Omnibus is a latin world. It means all encompassing, all
embracing. According to Sec. 8, a motion attacking a
pleading, order, judgment or proceeding is classified as an
omnibus motion. Why? Because the motion shall include all
objections then available and all objections not so included
shall be deemed waived. So, when you file a motion based
on two or three grounds, ilagay mo na lahat yung grounds mo.
I am filing a motion to dismiss the case because of the
following: 1, 2, 3, 4. Isahin mo na. Hindi yung mag-file ka ng
motion by piece. For example, your first motion: Venue is
improperly laid. Sabi ng court: denied. File ka ng second
motion. Denied din. Third motion, still denied. You are not
allowed to do that. If you have two or three grounds, one time
na. Otherwise, if I only cite one, waived na yung iba. All
objections not so included shall be deemed waived. That is
what you call an omnibus motion. The exception here would
be Rule 9, Sec. 1. That is why the opening clause there is
subject to the provisions of Rule 9, Sec. 1.
Sec. 1. Defenses and objections not pleaded. -
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived. However, when it appears from the
pleadings or the evidence on records that the
court has no jurisdiction over the subject matter,
that there is another action pending between the
same parties for the same cause, or that the action
is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (2a)
So, under the omnibus motion rule, the motion
attacking a pleading, etc., shall include all objections then
available and all objections not so included are deemed
waived. What are the exceptions? When is an objection not
deemed waived and therefore you can still raise them later?
When the defense or objection is based on:
lack of jurisdiction
over the subject
matter;
there is another
action pending
between the same
parties for the same
cause;
the action is barred
by a prior judgment;
or
the action is barred
by statute of
limitations.
The exceptions to Rule 9, Sec. 1 are also the same
exceptions to Rule 15, Sec. 8.
Sec. 9. Motion for leave. - A motion for leave
to file a pleading or motion shall be accompanied by
the pleading or motion sought to be admitted. (n)
This is a new provision. When you file a motion for
leave to file a pleading, it must be accompanied by the
pleading sought to be admitted. Example of a pleading
where a leave of court is required is a third-party complaint.
Noon, ganito ang sistema: Motion for leave or permission to
file a third-party complaint. Hihingi muna ng permission. Pag-
granted, doon pa mag-file ng third-party complaint. Or, the
other option: Motion to admit third-party complaint. Hindi na
permission kundi nandito na mismo yung third-party complaint.
Then the court would say: The third-party complaint is hereby
admitted. So, those are the two options in the past. Now,
there is only one. When you file your motion, kasama na yung
pleading or motion sought to be admitted. I want to amend
my complaint. Ngayon, wala na yung first option. Motion to
admit derecho. That is why the law says it shall be
accompanied already by the pleading or motion sought to be
admitted.
We are already through with Sec. 10. You just go
back to Rule 7. There must be a caption, paragraphs, signed
by the lawyer, etc.
Sec. 10. Form. - The Rules applicable to pleadings shall
apply to written motions so far as concerns caption,
designation, signature, and other matters of form. (9a)
End of Rule 15.
Page 134 of 296
 Rule 16
MOTION TO DISMISS
We will now study the concept of a motion to dismiss.
Let us read first the opening paragraph:
Sec. 1. Grounds. - Within the time for but before
filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be
made on any of the following grounds:
xxx
I am the defendant. I received a copy of the
complaint today. I have 15 days to file my answer. Under Rule
16, it is possible that instead of filing an answer, I will file a
motion to dismiss. So, the filing of a motion to dismiss is possible
in lieu of filing an answer. The deadline to file a motion to
dismiss is also the same as in the period to answer. And you
have to file your motion to dismiss before filing your answer.
Is a motion to dismiss applicable also to
counterclaims, cross-claims, third-party complaints? Yes. You
noticed the opening clause of Sec. 1? Within the time for but
before filing the answer to the complaint or pleading asserting
a claim xxx. So, you can move to dismiss not only the
complaint but any pleading asserting a claim like a
counterclaim, cross-claim, etc. The same holds true for the
plaintiff who is served a copy of an answer with a
counterclaim. Since he has 10 days to file an answer to the
counterclaim, he can also file a motion to dismiss on any of the
grounds mentioned in Sec. 1. In lieu of an answer, the
defending party may file a motion to dismiss.
By the way, the counterpart of a motion to dismiss in
criminal cases is called a motion to quash. The principles are
the same. You file a motion to quash before arraignment.
Before pleading, the accused files a motion to quash. That is
tantamount to answering. Before filing an answer in civil cases,
you file a motion to dismiss.
What are the grounds for a motion to dismiss?
Sec. 1. Grounds. - Within the time for but
before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made
on any of the following grounds:
a) That the court has no jurisdiction
over the person of the defending party;
b) That the court has no jurisdiction
over the subject matter of the claim;
c) That venue is improperly laid;
d) That the plaintiff has no legal
capacity to sue;
e) That there is another action pending
between the same parties for the same
cause;
f) That the cause of action is barred by
a prior judgment or by the statute of
limitations;
g) That the pleading asserting the claim
states no cause of action;
h) That the claim or demand set forth in
the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise
extinguished;
i) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
j) That a condition precedent for filing
the claim has not been complied with.
(1a)
The first ground is:
a) That the court has no jurisdiction over the
person of the defending party.
Of course, you are already familiar with that. So, if
the defendant has not been served at all with summons, or
there was a defect in the service of summons, the defendant
may file a motion to dismiss. Personally, based on so many
decided cases, this first ground is one of the weakest grounds
for a motion to dismiss. That the court acquired no jurisdiction
over the person of the defending party. Because of so many
exceptions, the defect is waivable. If you file an answer or any
other pleading, that would be construed as a voluntary
appearance. So, waived na.
And there are decided cases where the SC said:
Even if the service of summons was defected, if however, the
defendant actually received the summons or the complaint,
he cannot complain anymore. In the case of SIQUITO vs.
LETRONDO, which I mentioned earlier in Rule 14 where the
summons was served on a nine-year old child of the
defendant who is only in grade four, and the child even lost
the summons, the court never acquired jurisdiction over the
person of the defendant. In the first place, the summons was
not served on a person with sufficient age and discretion.
Klaro yan.
But suppose the summons was served on a 9 year old
child. Pero pagdating ng tatay ibinigay ng anak. Nalaman
niya ngayon. Sabihin niya hindi siya mag-file ng answer
because defective ang service of summons? No, because
while it is true that the service was defective, from the moment
he received it, he cannot complain anymore. He cannot insist
on a technicality. Kaya nga even in service of summons on
corporations where it was served on an ordinary employee
which is supposed to be improper, still the SC said that the
defect is cured. Because it actually reached the attention of
the right person. Kaya nga this is a weak ground.
In the case of LINGER & FISCHER, which I mentioned
before, suppose the sheriff does not know how to serve
summons. So, improper. So, the defendant filed a motion to
dismiss on the ground that the court has no jurisdiction over his
person because of improper service of summons by the sheriff.
Who is at fault? The sheriff, di ba? Sabi ng SC, if that is the
case, why will we penalize the plaintiff for the fault of the sheriff
who is an employee of the court? So, exception na naman.
Logical man, di ba? So, do not dismiss. Instead, the court will
direct an issuance of an alias summons and direct the sheriff to
serve it properly. So, this ground for dismissal has become
weaker and weaker because of so many cases which have
become exceptions. Either the defect is cured, or it is waived,
or why should the plaintiff suffer for the negligence or lack of
proper knowledge by the sheriff when he is actually a court
employee?
Omnibus motion rule vs. Voluntary appearance
We will now go to this situation which has caused
confusion. Suppose I will file a motion to dismiss citing the
following grounds: (1) The court has no jurisdiction over my
person. (2) Venue is improperly laid. (3) There is another action
pending between the same parties for the same cause of
action. Marami kang grounds. What have we learned under
the previous rule? If you have two or more grounds, under the
omnibus motion rule, you must file only one motion invoking all
the grounds and those not so invoked are deemed waived.
So, here is the defendant filing a motion to dismiss at kinarga
lahat halos ng grounds.
You know what the SC said in some cases? When
you file a motion to dismiss based on lack of jurisdiction over
your person and in addition to that, you added other grounds,
like prescription, statute of frauds, by doing that, by invoking
other grounds, you have now submitted yourself to the
jurisdiction of the court. Because you are asking a favor also.
So, in effect, you have already waived the defect. What is the
lesson in that case? If you file a motion to dismiss based on
Page 135 of 296
lack of jurisdiction, huwag ka ng magdagdag ng ibang
ground. Otherwise, it might be construed as voluntary
appearance.
Pero meron din namang decided case where if you
file a motion to dismiss based on lack of jurisdiction over the
person of the defendant and you also invoked other grounds,
you are not waiving the defect of lack of jurisdiction.
Meaning, you can still raise that issue because under the
omnibus motion rule, you are obliged to invoke everything. So,
nagkaroon ng conflict. If you look at decided cases, magulo
talaga. Which is the correct rule?
LANAVAL GRAND CORP. vs. CA
236 SCRA 78
When you file a motion to dismiss
on the ground of lack of jurisdiction over
your person and you also invoke other
grounds, you are not waiving the defect of
lack of jurisdiction.
That is now the correct rule. I noticed that the ruling
in this case is now inserted in the new rules in Rule 14, Sec. 20.
Sec. 20. Voluntary appearance. - The defendant’s
voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a
motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance. (23a)
So, that is the LANAVAL doctrine. So, the inclusion of
other grounds is not equivalent to a voluntary appearance.
Let us now go to the second ground:
b) That the court has no jurisdiction
over the subject matter of the claim.
I think you are more familiar with that rule. Let us go
to the basics. Jurisdiction over the subject matter is governed
by law. It is the law which confers jurisdiction. It cannot be
conferred by silence, agreement or waiver. Like for example,
if an action for unlawful detainer is filed in the RTC, you will file
a motion to dismiss because the court has no jurisdiction over
the subject matter or over the nature of the action. Or, if an
action for annulment of marriage is filed in the MTC, ganoon
din. This is a very important ground and I want you to know
the principles on this ground.
First principle: What determines whether the court has
jurisdiction over the subject matter of the action? Jurisdiction
over the subject matter is determined by the allegations in the
complaint. It is not determined by the allegations in
defendant’s answer or motion to dismiss. Example: The
plaintiff filed a civil case against the defendant in the RTC of
Davao City to collect a P150T loan. Based on the complaint,
the RTC has jurisdiction. Pero the defendant filed a motion to
dismiss arguing that the loan is only P50T. I admit I borrowed
money pero P50T lang and therefore, the RTC has no
jurisdiction. So, the court is confronted now with two
allegations. Who is telling the truth? As of the moment, the
court will believe in the plaintiff’s allegation. Because what
determines jurisdiction over the subject matter are the
allegations in the complaint, not the allegations of the
defendant. Otherwise, the jurisdiction of the court will depend
on what defendant will say rather than what the plaintiff will
say. But I will prove and I will present evidence that the loan is
only P50T. Should the court allow it? No, because for the
moment, we will only consider the plaintiff’s allegation in the
complaint.
And the principle to remember is, corollary to that,
when a defendant files a motion to dismiss on the ground that
the court has no jurisdiction over the subject matter, the
defendant automatically admits HYPOTHETICALLY the
allegations in the complaint to be true and correct. Assuming,
ba. So, if you are the defendant and you file a motion to
dismiss, this is the question that you are directing the court:
Assuming for the sake of argument that I really owe the
plaintiff P150T, does the RTC have jurisdiction to try it? Of
course, under the judiciary law, yes. So, your motion will be
denied.
But suppose I will file in the RTC a money claim for
only P50T and the defendant will file a motion to dismiss. So,
what the defendant will say is: Assuming for the sake of
argument that I really owe you P50T, does the RTC have the
power to try the case? Of course, the answer is no. On its very
face, the complaint should be dismissed. Meaning, there is a
hypothetical admission. Therefore, the defendant is not
allowed in the meantime to present evidence because there
is a hypothetical admission. Another way of saying it, the
principle is whether the court has jurisdiction or no jurisdiction
over the subject matter is determined only for the moment by
the four corners of the complaint and the defendant is not
allowed to present evidence for lack of jurisdiction.
Halimbawa, it is really true na ang utang is only P50T.
But the plaintiff says it is P150T. But he is lying. Never mind. I
cannot file a motion to dismiss because I have to admit it
hypothetically. Of course, in my answer, I will say actually P50
lang yan. So, trial tayo. Then you present your evidence. Then
it really turned out na I am telling the truth. Diyan na ako mag-
file ng motion to dismiss. Because the lack of jurisdiction over
the subject matter has now come out in the course of the trial.
Because now we have looked into the evidence. Pero sa
umpisa, pabayaan mo muna. Pero when the lack of
jurisdiction over the subject matter has become obvious, that
is the time na you file a motion to dismiss. So, remember these
principles. These are basic principles on this ground for a
motion to dismiss.
We will go to another principle. We know that the
jurisdiction of the RTC is above P100T. Suppose tomorrow, you
file a case in the RTC to collect a loan of P120T. Well, it has
jurisdiction based on the complaint. Suppose, after three
weeks from the date of filing, congress amends the judiciary
law by increasing the jurisdiction of the MTC from P100T to
P150T. Can the defendant now file a motion to dismiss on the
ground that the RTC lost its jurisdiction to try the case? When it
was filed, the RTC had jurisdiction but when the law was
amended, the RTC lost its jurisdiction. If you are the judge, will
you dismiss the case? No, because once jurisdiction has
already been acquired by the court, that continues until the
end of the case. Jurisdiction, once acquired is no longer lost
and it shall continue until judgment.
The third principle that I want you to remember is the
ruling in the old case of TIJAM vs. SIBONGHANOY. What is the
rule in lack of jurisdiction? When the court has no jurisdiction
over the subject matter, the court has no authority to try the
case in the first place. When do I raise that ground? The
traditional rule is that you can challenge it at the start by filing
a motion to dismiss. Suppose I will raise that in the middle of
the trial? Puwede pa, di ba. Suppose, there is already a
decision. Can I still raise it? Yes, it can still be raised even after
judgment. The traditional rule is that it can even be raised for
the first time on appeal. Why? Because technically, the trial is
void. That traditional rule was somewhat diluted by the
exceptional ruling in the case of TIJAM vs. SIBONGHANOY. You
better read that case. It is a very nice case. It has been
invoked a hundred times already in other cases.
TIJAM vs. SIBONGHANOY
23 SCRA 29
This is a case involving a collection
of a loan of P105T filed in the MTC.
Obviously, the MTC has no jurisdiction. But
nobody noticed it. The defendant never
raised it. Even the judge never saw the
Page 136 of 296
 defect. So, trial, tapos decision. Talo ang
defendant. The defendant appealed sa
RTC. Again, he did not raise the issue of
lack of jurisdiction. More or less, the error
was never discovered. Talo pa rin siya.
Akyat siya sa CA. Talo pa rin. So, tatlong
knock-out na. And this case dragged on for
more than ten years. And nobody saw the
defect until after he lost in the CA. Siguro,
bago ang abogado niya. Teka muna, from
the very start, the court has never acquired
jurisdiction. So, ni-raise na ng defendant
that everything is void from the very start
because of lack of jurisdiction.
This time the SC said no. This is too
much. You are barred by estoppel.
Estoppel by laches. Why did it take you
several years to raise it? Sobra na ito. If we
will dismiss the case and we will invalidate
everything from the start, we will require the
plaintiff to start all over again. Technically,
he will have to climb the calvary for the
second time.
For the first time, the SC ruled that when you do not
raise lack of jurisdiction for a considerable period of time when
you have so many opportunity, you might be barred by the
equitable principle of estoppel by laches. That is the TIJAM
ruling. Kaya nga, the rule that you can raise it even for the first
time on appeal was somehow affected. Because of this
ruling, whenever there was a slight delay on the part of the
defendant to raise it, judges would deny the motion. Barred
by laches. To the point that judges applied the TIJAM ruling.
And some judges even ruled that the doctrine that lack of
jurisdiction can be raised at any time has already been
overturned by the TIJAM ruling. This time the SC said that is not
true. The TIJAM ruling is only the exception. Meaning, that
lack of jurisdiction can still be raised even for the first time on
appeal still prevails. This was enunciated in the cases of:
CALIMLIM vs. RAMIREZ
118 SCRA 399
SEAFDEC vs. NLRC
206 SCRA 283
The rule is the jurisdiction of the
court over the subject matter is a matter of
law and cannot be conferred by consent or
agreement of the parties. The lack of
jurisdiction of the court may be raised at
any stage of the proceedings even on
appeal. This doctrine has been qualified by
recent pronouncements which stemmed
principally from the case of TIJAM vs.
SIBONGHANOY. It is to be regretted,
however, that the ruling in that case has
been applied to situations which were
obviously not contemplated therein. The
exceptional circumstances involved in
TIJAM which justified the departure from the
generally accepted concept of non-
waivability of objection to jurisdiction has
been ignored. And instead, the blanket
doctrine had been repeatedly upheld that
rendered the supposed ruling in TIJAM not
as the exception but rather the general rule
virtually overthrowing all-together the time
honored principle that the issue of
jurisdiction is not lost by waiver or estoppel.
So, the TIJAM is not the rule, it is only the exception to
be applied in clear circumstances of laches. Another one was
the pronouncement in the 1995 case of:
DE LEON vs. CA
245 SCRA 166
In the past, the principle of
estoppel had been used by the courts to
avoid a clear case of injustice. Its use as a
defense to a jurisdictional error is more of an
exception rather than the rule. The
circumstances outlining estoppel must be
unequivocal and unintentional. While it is
an exception to standard legal norms, it is
generally applied only in highly exceptional
and justifiable cases.
c) That venue is improperly laid.
That is the third ground. The case is filed in the wrong
place. You already learned that. Now, according to the SC,
the objection to improper venue should be pursued
immediately because it can be waived. And it does not
affect the jurisdiction of the court. So, when the venue is
improper and you file a motion to dismiss and the court denies
it, and you believe that the court is wrong, you better pursue
immediately that remedy questioning the venue. The remedy
is prohibition. That is a special civil action. Therefore, pag-file
mo ng answer tapos nag-trial na, too late. The defect is
deemed waived by not pursuing the remedy immediately.
d) That the plaintiff has no legal capacity to
sue.
Nag-file ka ng kaso and you are 10 years old. When
you say that plaintiff has no legal capacity to sue, there are
two possible meanings to that.
(1) The first possible meaning is when the plaintiff
does not possess the necessary qualifications to appear in the
trial such as when the plaintiff is not in the full exercise of his
civil rights. A good example is minority. Or he is insane,
therefore he is not in full possession of his civil rights.
(2) The second possible meaning is when the plaintiff
does not have the character or representation which he
claims. Example. Suppose the plaintiff filed a case against me
through his alleged guardian. Representative party, no? The
guy says he is the guardian. Actually hindi naman siya ang
guardian. So, I will say that he has no legal capacity because
he is not the guardian. In effect, he has no legal capacity to
sue. He might be of age but he does not have the character
or representation which he claims he has.
Legal capacity to sue vs. Legal personality to sue
This was a bar question. Distinguish lack of legal
capacity to sue from lack of legal personality to sue. When
you say lack of legal capacity to sue, it means disability of the
plaintiff. like a minor, an insane. When you say lack of legal
personality to sue, it means the plaintiff is not the legal party in
interest. Remember under Rule 3? All civil actions must be
prosecuted or defended in the name of the real party-in-
interest.
X, the owner of a piece of land went abroad and
executed a special power of attorney authorizing A to institute
legal action. So, A filed a case against the defendant where
the plaintiff was A. So, A, representing X, plaintiff. Of course,
the action is not brought in the name of the real party-in-
interest. Because it is X who is the real party-in-interest. It
should have been X, plaintiff represented by A.
Page 137 of 296
Litis pendencia
(lis pendens)
e) That there is another action
pending between the same parties for the
same cause.
This is one of the more important grounds for a
motion to dismiss because there are many decided cases on
this fifth ground. Many of the questions in the bar deal on this
fifth ground. This ground is also known as the ground of LIS
PENDENS. Although you should not confuse it with notice of lis
pendens in Rule 13. That is the notice that you will annotate
on the title of the property which is a subject of a controversy.
Although they mean the same thing because lis pendens
means pending litigation. It is the same concept here. It is
also known as litis pendencia, or accion pendant which is
more of a French term and is rarely used. They mean the
same thing. That there is a pending action between the same
parties.
For example, you file a case against me. While it is
pending, you file another case against me. Dalawa na. There
are now two cases involving the same cause of action. One
has to be dismissed. In effect, it violates the rule against
splitting a cause of action. Going back to what we already
discussed: Rule 2, Sec. 4:
Sec.4. Splitting a single cause of action; effect
of. - If two or more suits are instituted on the basis
of the same cause of action, the filing of one or a
judgment upon the merits in any one is available
as a ground for the dismissal of the others. (4a)
If two or more suits are instituted on the basis of the
same cause of action, the filing of one is available as a ground
for the dismissal of the others. And what is the ground? Under
Rule 16, that there is another action pending between the
same parties for the same cause. Do you mean to tell me that
everytime there are two cases involving the same parties one
has to be dismissed? You cannot say that. It must be the
same cause. I may have many causes of action against you
and I can file these cases without violating the rule against
splitting a cause of action.
Litis pendencia, requisites
Now, suppose there are two causes of action which
are related to each other but they are entirely different. Still,
there is no litis pendencia. And that is where the difficulty lies.
The favorite question here is: What are the requisites of litis
pendencia as a ground for a motion to dismiss. The requisites
for litis pendencia are the following:
1. The identity of parties
between the two actions or at
least such as represent the
same interest;
2. The identity of rights
asserted and relief prayed for;
3. The relief must be founded
on the same facts; and
4. The identity in these
particulars should be such that
any judgment which may be
rendered on the other action
will, regardless of which party is
successful, amount to res
adjudicata in the action under
consideration.
There was one actual case where the husband filed
an action for legal separation against his wife on the ground of
adultery committed by the wife. In the same action, the wife
demanded in the counterclaim, maintenance and support for
her children. Subsequently, the wife filed another action for
support against the husband. Will the second action prosper?
The SC said no. The issue of support having been
raised in the first action as a counterclaim cannot be made an
issue in a subsequent independent action. Therefore, the
independent action for support should be dismissed on the
ground of lis pendens all the other requisites being present.
What is important there is the fourth requisite. The
identity in these particulars (parties, rights, relief) should be
such that any judgment which may be rendered on the other
action will, regardless of which party is successful, amount to
res adjudicata in the action under consideration. Meaning,
whoever wins in the other case will automatically bar the
second. Regardless of who wins, ha. The best illustration here
is the case of:
TAMBUNTING vs. ONG
Aug. 11, 1950
There was mortgage contract.
The mortgagor filed a case against the
mortgagee, A vs. B for annulment of
mortgage contract. While that was
pending, B filed a case against A for
foreclosure of the same mortgage. So, A
filed a motion to dismiss the second action
on the ground of litis pendencia. That there
is another action pending between the
same parties for the same cause. Suppose,
in the first case which is the annulment of
the mortgage contract, A wins, what is
there to foreclose? So, it will bar the filing of
the action for foreclosure.
Sabi ng SC: Correct! But that is if
you win. Eh, kung matalo ka? Suppose the
action for annulment is dismissed, eh, di lalo
na. The foreclosure will proceed. Therefore,
the fourth requisite is missing. Because
under the law, for two actions to be litis
pendencia, whoever wins in the first case
will automatically bar the second. But here,
the second action will be barred if in the first
action A wins. Not if it is B who will win. So,
the fourth requisite is missing. That is why this
is a very illustrative case.
Now, let us think of a case where whoever wins in the
first case will bar the second. A good example is the case of:
FRANCISCO vs. VDA DE BLAS
A filed a case against B for
recovery of a piece of land, accion
publiciana. When that was pending, B filed
a case against A for quieting of title on the
same piece of land. (When somebody is
molesting you in your right, you file an
action for quieting of title. So that your title
will be respected. That is what you have
learned in property.) Is there litis
pendencia? Let us find out.
Suppose A wins the first case and
the court says A is the owner and that B has
to surrender the land to A. What happens
to the second case? Wala. There is no title
to quiet. Automatically, it will settle the issue
of quieting the title. Suppose B wins, that
means to say A has no right over the
property. In effect, the title of B is quieted.
So, there is litis pendencia. One action has
to be dismissed. That is an illustration of the
fourth requisite.
Page 138 of 296
Which action should be dismissed?
Another interesting case on litis pendencia was the
1956 case of:
TEODORO vs. MIRASOL
99 PHIL 150
The controversy this time is
between the lessor and the lessee over a
piece of land. There was a lease contract
between them in writing which was going
to expire in 1998. Pero ngayon pa lang
nag-aaway na sila. B was telling A to look
for another place because the contract is
only good until the end of the year. Sabi
naman ni A the contract is valid until year
2000. So, ang away nila is whether the
contract will expire this year or not.
In order to determine whether the
contract was only good up to the end of
the year or not, A filed a case against B to
determine who is right under the contract.
So, the first action is an action for
declaratory relief. Then, the year ended
hindi pa tapos ang kaso. This time, B filed
a case against A for unlawful detainer. B’s
position is that the contract has expired
which A of course refutes. Practically, the
same issues. Both of them agreed that
there is litis pendencia. Since there is litis
pendencia, B moved to dismiss the case of
A para matira yung sa kanya. Sabi naman
ni A, yung sa iyo ang i-dismiss. Nauna gud
ako. I filed it ahead. In a litis pendencia,
according to A, it is the second action
which should be dismissed. Is he correct?
The SC said A is wrong. Why?
What does the law say? There is another
action pending between the same parties
for the same cause. That there is another
action. The law does not say that there is
another prior pending action. For example
there is another prior pending action, i-
dismiss ang second. Another action man
lang. So, either the first or the second.
What is important is that one of them will
be dismissed.
Now, when there are two cases pending, which
should really be dismissed? The SC had the occasion to deal
extensively on this issue in the 1993 case of:
1 - Priority in time rule
VICTRONICS COMPUTERS vs. RTC, BR. 63,
MAKATI
217 SCRA 517
As a general rule, it is the second
action which should be dismissed. Why? By
applying the rule on priority in time. Last in,
first out. He who is before in time is the
better in right. Priority in time gives
preference to law. So, as a general rule,
dismiss the second on the ground of priority
in time.
2 - Criterion of more appropriate action
However, there are exceptions where the court
sanctioned the dismissal of the first action and opted to retain
the second. That was also what happened in:
TEODORO vs. MIRASOL
99 PHIL 150
RAMOS vs. PERALTA
98 PHIL 868
What happened in these two
cases, the first action was the one ordered
dismissed by applying another criterion
which is the criterion of more appropriate
action. When there are two cases, which is
the more appropriate case to remain? It is
not a question of priority. If it is more
appropriate for the second case to remain,
then the first is dismissed.
3 - Criterion of in the interest of justice
ROA MAGSAYSAY vs. MAGSAYSAY
98 SCRA 592
The court sustained the dismissal of
the first case by applying another criterion.
The criterion of interest of justice. Between
the two cases, which should remain in the
interest of justice? In applying the standard,
what was asked was which action would be
in a better position to serve the interest of
justice taking into account (1) the nature of
the controversy, (2) the comparative
accessibility of the court to the parties, and
(3) other similar factors.
The SC remarked in VICTRONICS that there are some
instances talaga that it is more appropriate to dismiss the first
or it is in the better interest to dismiss the first by discarding the
priority rule. There are people who believe in the saying the
best defense is an offense. Like for example, I expect you to
file a case against me. Meron man akong depensa. The best
move is to wait for you to file and I will answer. Pero ang ibang
tao hindi ganyan. The best defense is offense. So, uunahan
ka. My defense will now be converted into a cause of action.
That was what happened in TEODORO vs. MIRASOL where he
is expecting the lessor to evict him. Ang depensa niya the
contract was still in effect. So, instead of waiting for the case
for unlawful detainer, inunahan na niya. If that is your position,
sabi ng SC, you are in bad faith. The first case was therefore
dismissed in the interest of justice and the second case was
retained for being a more appropriate action.
ALLIED BANK vs. CA
259 SCRA 371
July 26, 1996
These criteria which were
mentioned in Victronics were summarized
all over again. In this case, the SC through
Justice Mendoza said: Given the pendency
of two actions, the following are the
relevant considerations in determining
which action should be dismissed.
1. The date of filing
with preference
generally given to the
first action filed to be
retained;
2. Whether the action
sought to be
dismissed was filed
merely to preempt
the later action or to
anticipate its filing
and lay the basis for
its dismissal;
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 3. Whether the action
is the appropriate
vehicle for mitigating
the issues between
the parties.
There is another interesting case which was asked in
the bar.
PAMPANGA BUS CO. vs. OFELIA
18 SCRA 427
On Jan. 10, A filed a case against
B in Manila where A is a resident. On Jan.
20, B still unaware of the case, and based
on the same contract, filed a case against
A in Davao City where B is a resident. On
Feb. 1, B was served with summons. A
moved to dismiss the second action citing
litis pendencia. To avoid the dismissal, B
argued that there was no pending action
yet. When he filed the second action, he
did not learn of the first. Is that correct?
The SC said B is wrong. An action
is pending on the day it is filed in court not
upon the receipt of the summons. When is
an action deemed commenced? Upon
the filing of the case in court and payment
of docket fees. When the case was filed in
court on Jan. 10, the case is already
pending. It does not depend on your
knowing it. So, the second action has to be
dismissed.
f) That the cause of action is barred by a
prior judgment or by the statute of
limitations.
Res adjudicata
Actually there are two grounds here. The first is that
the action is barred by prior judgment. The second is that it is
barred by the statute of limitations. On the first, it is what is
known as res adjudicata.
Res adjudicata vs. Litis pendencia
Now what is the difference between litis pendencia
and res adjudicata? Both are violations of the rule against
splitting a cause of action. In litis pendencia, there is a
pending action. In res adjudicata, walang pending because
it has already been decided.
A filed a case against B. The case was decided by
the RTC but B appealed to the CA. While the appeal was
pending, B filed a case against A based on the same cause of
action. What is the ground for the dismissal of the case filed by
B? Since the judgment is not yet final, the first case is deemed
pending therefore there is litis pendencia. Barred by prior
judgment means the judgment in the first case has long been
decided, long been final. This is mentioned in Rule 2, Sec. 4:
Sec. 4. Splitting a single cause of action;
effect of. - If two or more suits are instituted on the
basis of the same cause of action, the filing of one
or a judgment upon the merits in any one is
available as a ground for the dismissal of the
others. (4a)
The filing of one (litis pendencia) or a judgment upon
the merits in any one (res adjudicata) is available as a ground
for the dismissal of the others. So, what is the connection
between litis pendencia and res adjudicata? They are
brothers. They are based on the same principle on splitting a
cause of action.
Prescription
The other ground is that the action is barred by the
statute of limitations. Prescription. Filed out of time. Did you
notice that some of these grounds for a motion to dismiss have
been mentioned in Rule 9, Sec. 1?
Sec. 1. Defenses and objections not
pleaded. - Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from
the pleadings or the evidence on records that the
court has no jurisdiction over the subject matter,
that there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim.
(2a)
Defenses or objections not raised in a motion to
dismiss are deemed waived except the following:
1. lack of jurisdiction over the subject matter
2. litis pendencia
3. res adjudicata
4. prescription
g) That the pleading asserting the claim
states no cause of action.
That is again one of the most important grounds for a
motion to dismiss. That the pleading asserting the claim states
no cause of action. Pleading there could be a complaint, a
counterclaim, a cross-claim, or a third-party complaint. Well,
you know what is a cause of action. A complaint, for
example, must state the elements of a cause of action - the
delict, the right, the obligation and the damage. If it lacks one
of the essential elements of a cause of action, it is dismissable
immediately.
I will file a complaint against you because you
borrowed money from me in the amount of P1M payable in
1999. As of today, you have not paid me anything.
Wherefore, it is respectfully prayed that judgment be rendered
ordering you to pay the loan. By reading the complaint, alam
mo na there is something wrong. Ang maturity is still in 1999.
So, there is no delict because it is not yet due. So, instead of
answering, I can file a motion to dismiss. The complaint states
no cause of action. The element of violation of a right is
missing.
The rule in this ground that the pleading states no
cause of action is similar to the second ground that the court
has no jurisdiction over the subject matter of the claim. They
have identical principles. The principle that we have learned
in the second ground is that jurisdiction over the subject matter
of the case is determined only by the allegations in the
complaint. When a defendant files a motion to dismiss on the
ground that the court has no jurisdiction, he cannot present
any evidence at that time to show that the court has no
jurisdiction. Because when a defendant files a motion to
dismiss on that ground, he is hypothetically admitting the
allegations in the complaint. There is a hypothetical
admission. So, the presence or absence of jurisdiction over the
subject matter is determined solely and exclusively by the
allegations in the complaint. That is the rule we learned in par.
(b).
The same rule applies in par. (g). When you say that
the complaint should be dismissed because it states no cause
of action, whether the complaint states a cause of action or
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not, is determined exclusively by the allegations in the
complaint. And when a defendant files a motion to dismiss on
this ground, the defendant is hypothetically again admitting all
the allegations in the complaint to be true and correct. So,
when a defendant files a motion to dismiss on this ground,
what he is saying is this: Assuming for the sake of argument
that everything in the complaint is true, I will admit
hypothetically everything that you said, are you entitled to
what you are claiming for? If the answer is no, even if all these
things are true, and still plaintiff is not entitled to what he is
claiming, then the complaint states no cause of action. Like
the complaint I just cited. Defendant borrowed money from
plaintiff in 1997. Payable in 1999. So far (1998), defendant has
not paid plaintiff. The defendant will say: Assuming for the
sake of argument, lahat na yan totoo, are you entitled to
collect? Still the answer is no, eh. Therefore, I can move to
dismiss on the ground that the pleading states no cause of
action.
Suppose the plaintiff has no cause of action because
there is no delict or wrong, but the way he prepared the
complaint, meron. Obviously, he lied there. In reality, he has
no cause of action but the way the complaint is prepared,
there appears to be a cause of action. So, you are disputing
or denying some of the allegations in the complaint. Alright, I
will file a motion to dismiss because the complaint states no
cause of action. and to show that plaintiff has no cause of
action, I will present evidence that this paragraph is wrong.
You cannot do that. There is no presentation of evidence on
this ground. You have to hypothetically admit, eh. How, can
you present evidence when you are hypothetically admitting?
So, what is the rule to remember? When a plaintiff
has no cause of action but as prepared, the complaint is
complete and appears to state a cause of action, and the
defendant is disputing the truth of some of the allegations in
the complaint, he must file an answer denying those
allegations and enter into trial. He cannot move for the
dismissal of the complaint. That is the principle. He
hypothetically admits all the allegations in the complaint. The
presence or absence of a cause of action is determined only
by the allegations in the complaint. Not by the allegations in a
defendant’s motion to dismiss. So that if the defendant denies
the truth of those allegations, the correct course of action is to
file an answer and enter into trial rather than filing a motion to
dismiss.
Lack of cause of action vs. Failure to state a cause of action
MUNICIPALITY OF BINAN vs. GARCIA
180 SCRA 576
Lack of cause of action is not a
ground for dismissal of an action under Rule
16. The ground is the failure of the pleading
or complaint to state a cause of action
which is obviously not the same as plaintiff
not having a cause of action. When you
say lack of cause of action, we will only
know about that after trial. You cannot
present that at the start. That the plaintiff in
reality has no cause of action is not a
ground for dismissal. The ground for
dismissal is his own complaint or the
pleading states no cause of action. Did you
get the distinctions between the two points?
On the other hand, when you say
that a defendant who files a motion to
dismiss on this ground hypothetically admits
all the allegations in the complaint to be
true, the SC said that what are deemed
admitted are the allegations that are
material, the allegations which are
allegations of ultimate facts. They do not
cover conclusions or interpretations of law
which are false. Because conclusions or
interpretations of law are not really to be
found in the complaint. If you state the
wrong principle, I am not the one making
that because that is not a statement of
fact but a statement of conclusion.
Hypothetical admission, limitations
RAVA DEVT CORP. vs. CA
211 SCRA 144
The SC said: Of course, while this
court is very cognizant of this principle that
a motion to dismiss on the ground of failure
to state a cause of action stated in the
complaint hypothetically admits the truth of
the facts therein, the court notes the
following limitations: The hypothetical
admission is however limited to the relevant
and material facts well pleaded in the
complaint and inferences fairly deductible
therefrom. The admission does not extend
to conclusions or interpretations of law nor
does it cover allegations of fact the falsity of
which is subject to judicial notice. Suppose
you allege there something which is 100%
false and the court knows it, but you filed a
motion to dismiss, are you deemed to
hypothetically admit something which
everybody knows is false? The SC said that
is not covered. When you file a motion to
dismiss, you are deemed to admit
everything there is true except matters
which are 100% false and which the court
itself knows to be false. Or conclusions of
the pleader. In the first place, conclusions
have no place in the pleading.
The original rule states the complaint states no cause
of action. But the 1997 Rules says the pleading asserting the
claim because cause of action is not only found in the
complaint. Puwedeng sa counterclaim, cross-claim, or third-
party complaint. So, it is broader. So, you can also move to
dismiss a counterclaim, a cross-claim, a third-party complaint
on this ground.
h) That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
That is Obligations and Contracts. How is an
obligation or a claim extinguished? Payment or performance.
Loss of the thing due. Remission, condonation, compensation,
etc. So, if you file a case against me for an unpaid loan but
actually bayad na, I can file a motion to dismiss. The
obligation has already been extinguished by payment. I will
raise payment as a ground for a motion to dismiss.
I) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds;
That is also Obligations. What is a statute of frauds?
The obligation has to be in writing to be enforceable. If it is not
in writing, it is not enforceable. Valid but unenforceable.
Could you still remember Art. 1403 of the Civil Code? Can you
cite one type of contract or agreement which is covered by
the statute of frauds? Guarantee or a special agreement to
answer for the debt or default or miscarriage of another.
Because I will guarantee na ako ang babayad sa utang mo.
Ang problema, it was not reduced to writing. But that is a valid
contract. When the defendant cannot pay anymore kay
napobre na, di ako na ngayon ang idemanda mo. You will
sue me to enforce my subsidiary liability. I will file a motion to
dismiss because the contract is not enforceable. There is no
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way for you to prove it because I will not allow you to prove it.
It is unenforceable. It should have been reduced to writing.
So, it is a ground for a motion to dismiss.
Conditions precedent
j) That a condition precedent for filing the
claim has not been complied with.
Actually, this ground is new. That a condition
precedent for filing the claim has not been complied with.
Meaning, before filing the case, you should have done first this
thing. Although it is a new ground not found in the old law,
however it is considered as covered by jurisprudence. When
the law requires you to first do something before filing, and you
filed without complying, the action is dismissable.
1 - Exhaustion of administrative remedies
A good example is you failed to exhaust
administrative remedies before going to court. Failure to
exhaust administrative remedies is considered as a ground for
dismissal. In effect, it is as if you have no cause of action. The
complaint states no cause of action.
2 - Barangay Conciliation Law
Another instance which we shall study in detail is
violation of the barangay conciliation law. You want to sue,
for example, your neighbor, under the barangay law which is
found in the Local Government Code, mag-reklamo ka muna
sa barangay captain ninyo. You settle it first amicably. Pag-
hindi kayo maareglo, and there is failure, file ka na ng kaso.
What happens if you file directly against your neighbor without
passing the barangay conciliation procedure? Ma-dismiss
yan. That is mandated by the Local Government Code. That
is a condition precedent.
3 - Art. 151, Family Code
Another good example of this is the non-observance
of Art. 151 of the Family Code.
Art. 151. No suit between members of the
same family shall prosper unless it should appear
from the verified complaint or petition that earnest
efforts toward a compromise have been made, but
that the same have failed. If it is shown that no
such efforts were in fact made, the case must be
dismissed.
This rule shall not apply to cases which may
not be the subject of compromise under the Civil
Code.
In other words, members of the same family should
not file immediately cases against each other unless there is
an attempt first to settle amicably among themselves. So,
kung kalaban mo yung kapatid mo, huwag kang mag-
demanda kaagad. You try to talk things over. Halimbawa,
despite all your efforts, talagang wala, file ka na.
Why does the law prohibit the filing of the case
immediately without first complying with this? Because it is a
very sad spectacle. Masamang tingnan, ba. members of the
same family fighting out in court. It is not good to see. society
frowns upon that kind of spectacle. And I tell you, the most
bitter fight are those between members of the same family.
I’ve seen it. Mabuti pa yung nag-demandahan sa utang,
damages. They can still talk civilly. But I’ve seen fight in court
between members of the same family. Even the most civilized
among them will act in an uncivilized manner. Grabe talaga
basta magkadugo ang maglalaban-laban. And that is what
the law wants to avoid.
So, if you file a case against your father, or mother,
your brother without attempting to exert efforts, your
complaint will be dismissed. In effect, a condition precedent
for filing a claim has not been complied with. And take note,
under Art. 151 of the Family Code, if the suit is between
members of the same family, the complaint or petition must be
verified. So, you can add that to the other instances where a
pleading has to be verified. Generally, the plaintiff is obliged
to allege in his complaint that before filing the complaint,
earnest efforts towards a compromise were made but failed.
Although, if it is challenged, you can still prove. Actually, nag-
usap na kami. But the best is to allege it.
Members of the same family
Suppose, I will file a case against my nephew. Or
against my first cousin. They are my relatives by affinity. Is this
requirement of settlement under Art. 151 applicable? No. You
go to the Family Code. Who are members of the same family?
Ascendants and descendants of any degree, spouses,
brothers and sisters. Walang binabanggit na nephew or niece
or pinsan. He is a relative but he is not a member of your
family. Yan ang mga tricky questions diyan. Even a half-
brother is not a member of the same family. That is legally
speaking. But in the Filipino culture, we have an extended
family. That is one Asian trait I like pero nasobrahan, ba. You
know why? Dito, pag-ninong ka or ninang, whether binyag or
kasal, member of the family na.
Suppose, I will sue my brother and somebody else, a
third person because they cheated me. So, I filed a case
against both of them. And I did not try to talk things over with
my brother for a possible settlement. Is the suit dismissable for
non-compliance with Art. 151? The SC said no because this
requirement applies only when you are suing 100% your
bother. If there is a stranger included as a co-defendant, the
requirement no longer applies. That is a decided case.
Exceptions
The purpose of this requirement is para ma-areglo.
But the last sentence says: This rule shall not apply to cases
which may not be the subject of compromise under the Civil
Code. Actually in the Philippines, almost everything is subject
to areglo. But there are matters na hindi puwedeng aregluhin
because only the law can settle them. They are found in the
civil code. Look at Art. 2035:
Art. 2035. No compromise upon the following
questions shall be valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
Yan ang hindi puwedeng pag-usapan. The civil
status of persons. Example: Our father died. So, tayo ang
mga heirs. Now, all of a sudden, here comes X and wants to
take his share of the inheritance. Sino ka ba? Kapatid man
ninyo ako, ba. I am the illegitimate child of your father.
Maybe yes, maybe no. How do we determine that he is really
the son? Evidence yan. He has to present evidence that he is
the son of our father. Samok ba. Maglabas pa ng ebidensiya.
Para wala ng gulo, sige compromise. Kapatid ka namin. Di
puwede yan. Civil status of persons is a matter of law. It
cannot be the subject of compromise.
Or, you will file a case against your wife for
declaration of nullity of marriage. The wife will move to dismiss
on the ground that there was no earnest efforts made for a
compromise. We will compromise on whether our marriage is
really valid or void. My golly. You cannot do that. A void
marriage cannot be compromise as valid. So, these things
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cannot be the subject matter of usapan. Pero all the others,
puwede. The wife claims for support. Pila? Puwedeng pa-
usapan yan. Hindi yung future support. Yung present. That is
what the second paragraph means.
Sec. 2. Hearing of motion. - At the hearing of the
motion, the parties shall submit their arguments on the
questions of law and their evidence on the questions
of fact involved, except those not available at that
time. Should the case go to trial, the evidence
presented during the hearing shall auto-matically be
part of the evidence of the party presenting the same.
(n)
Presentation of evidence
That is a new provision. During the hearing of a
motion to dismiss, the parties will submit their arguments on the
questions of law (e.g. jurisdiction) and their evidence on the
questions of fact involved. Can the parties during the hearing
of the motion to dismiss present evidence to prove their
grounds? The answer is yes. Except when the ground is lack of
jurisdiction over the subject matter and also when the ground
for dismissal is where the pleading asserting a claim states no
cause of action. There is no presentation of evidence on
those two grounds. Why? Because, as we already learned,
when you allege those grounds, you are hypothetically
admitting all the allegations in the complaint. You are not
allowed to dispute it.
Halimbawa ang ground mo for dismissal is improper
venue. I will prove by evidence that you are not a resident of
Davao City. Can I present evidence? Yes. Suppose my
ground for dismissal is that the obligation has been paid. Shall I
present the receipt to prove payment? Yes. You are allowed
to present evidence except two - par. (b) and par. (g).
Arguments lang yan, there is no evidence. Because the
defendant is hypothetically admitting the allegations in the
complaint as true and correct.
Where motion to dismiss is denied
Now, suppose, during the hearing of a motion to
dismiss, I present evidence and my motion is denied. So, there
will be trial. During the trial, do I have to present the evidence
all over again? The second sentence says no. Should the
case go to trial, the evidence presented during the hearing will
automatically be part of the evidence of the party presenting
the same. In order to avoid repetition.
Sec. 3. Resolution of motion. - After
hearing, the court may dismiss the action or
claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the
motion for the reason that the ground relied
upon is not indubitable.
In every case, the resolution shall state
clearly and distinctly the reasons therefor. (3a)
After a motion to dismiss is submitted to the court, what are the
options open to the court?
Option 1: The
court may dismiss the
action. That is
tantamount to
sayingthat the motion
is granted. The case is
ordered dismissed.
Option 2: The
court will deny the
motion. That is the
opposite. The motion is
denied therefore the
defendant will file his
answer and enter into
trial.
Option 3: The court will
order instead the
amendment of the
pleading.
The rule to remember is this: When the ground for a
motion to dismiss is one which can be cured by amendment,
meaning the basis for the dismissal is an error in the complaint
which can be cured by amendment, then the court, instead
of dismissing the case should order the amendment of the
complaint.
I filed a complaint hurriedly, ba. Walang kuwenta
ang pagkagawa. It seems that some elements of a cause of
action are missing. The complaint was drafted poorly. The
defendant will file a motion to dismiss. The pleading asserting
the claim states no cause of action. Kulang-kulang man ang
elements. Tama, no. Sige, I will amend. the court will say
alright amend your complaint. So, the motion to dismiss is
denied. because the defect is curable by amendment.
Remember, amendments of pleadings are favored.
Remember the case I cited when we were in Rule 3
where the plaintiff filed a complaint? Instead of placing
himself as the plaintiff, ang nilagay niya Juan dela Cruz
Hardware which is the name only of the store. The SC said the
complaint is defective because Juan dela Cruz hardware is
not a person authorized to sue. It should have been Juan dela
Cruz himself. But since the error is formal, and can easily be
cured by changing the plaintiff from the store to the owner,
then the court instead of dismissing it, should direct the plaintiff
to amend his complaint.
On amendment of complaint
Does the plaintiff have the right to amend his
complaint when there is already a motion to dismiss filed by
the defendant? Yes. Rule 10, Sec. 2 says that a party may
amend his pleading once as a matter of right at any time
before a responsive pleading is served. The plaintiff still has the
100% right to amend his complaint because a motion to
dismiss is not a pleading. It is not a responsive pleading. The
responsive pleading is the answer.
Let us go to decided cases. Suppose, plaintiff files a
case against defendant and the defendant maintains that the
complaint states no cause of action. So, argue sila. Alright,
submitted for resolution. In four days, lalabas na ang order ng
court. Then the plaintiff realizes parang tama man ang
defendant. I will amend. Has the plaintiff still have the right to
amend his complaint to cure the defect when the motion is
already submitted for resolution? Yes, because there is still no
responsive pleading. When there is no responsive pleading,
the party has 100% right to amend. So, pag-amend niya, wala
na yung motion to dismiss. Good-bye na yun. Na-cure na
ang error.
I will file a complaint. You file a motion to dismiss on
the ground that the complaint is defective. Then we argue in
court. Then we submit for resolution. Then, after one week the
court said the complaint is defective. It states no cause of
action. it is hereby ordered dismissed. Then plaintiff decides to
amend to cure the defect. Can he still do it when the
complaint is already ordered dismissed by the court? Yes,
because there is still no answer filed. Provided, your
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amendment must be done before the order becomes final.
Kahit may order na to dismiss, it is still a matter of right basta
the order is not yet final. Paano yung order of dismissal? It
becomes moot and academic and therefore set aside.
Remember that.
And the principle is even if there is a ground for
dismissal, if the defect is curable by amending the pleading,
the court in lieu of dismissing will order the amendment of the
pleading. So, in effect, when the court orders the amendment
of the pleading, the motion to dismiss is deemed denied. It is a
polite way of denying your motion to dismiss.
Where the ground relied upon is indubitable
What is the meaning of the second paragraph? The
court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. This is an
amendment of the prior rule. Under the 1964 Rules, the court
has 4 courses of action. How shall the court dispose of a
motion to dismiss? (1) Grant the motion; (2) Deny the motion;
(3) Amendment of the pleading; and (4) If the ground alleged
in the pleading will not appear to be indubitable, defer the
resolution of the motion until during the trial. Mag-file ako ng
motion to dismiss. 50-50 ba. Parang tama. Para ring mali.
What will the court do? Under the old rules, the court will not
rule on the motion. I-defer lang or i-postpone. Because the
ground does not appear to be indubitable. meaning, the
ground to dismiss does not appear to be without doubt.
Indubitable means without doubt. So, the ground for a motion
to dismiss is doubtful, ba. It may be valid or it may not be
valid. So, the court will neither grant nor deny the motion.
Pagdating ng trial, doon na ang court mag-rule. It is during
the trial that the ground will be clearer ba. That is allowed
under the previous rule.
Now, di na puwede. The court has no more authority
to postpone. Pag-may motion to dismiss, grant or deny lang.
The court shall not defer the resolution of the motion for the
reason that the ground does not appear to be indubitable.
So, the fourth option has been deleted already.
Of course, the last paragraph is very obvious. The
resolutions shall state clearly and distinctly the reasons therefor.
Whether the motion to dismiss is to be granted or denied, there
must be a clear discussion on the reasons for the grant or
denial.
Sec. 4. Time to plead. - If the motion is denied,
the movant shall file his answer within the balance of
the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less
than five (5) days in any event, computed from his
receipt of the notice of denial. If the pleading is
ordered to be amended, he shall file his answer within
the period prescribed by Rule 11 counted from service
of the amended pleading, unless the court provides a
longer period. (4a)
You have 15 days to file an answer under Rule 11.
Suppose, instead of filing an answer, you file a motion to
dismiss, say, after consuming 7 days of the 15. What happens
to the running of the 15-day period? It is deemed interrupted.
The running of the 15-day period stops after 7 days.
After, let us say, three weeks, the court denied your
motion to dismiss, and you receive the order denying the
motion. What is the next step. You now have to file your
answer. How many days more? Eight days pa. The balance
of the 15-day period will start to run. So, what is the principle?
The filing of the motion to dismiss will stop the running of the
period to answer and will continue to run again from the time
the defendant receives the court order denying his motion to
dismiss.
Suppose, you will file your motion to dismiss on the
13th day. Tapos, denied. How many more days do you have
to file your answer? Two? No, guaranteed ka pa ng five days.
So, that is the same as in the rules on bill of particulars (Rule 12,
Sec. 5).
Sec. 5. Stay of period to file responsive
pleading. - After service of the bill of particulars or
of a more definite pleading, or after notice of
denial of his motion, the moving party may file his
responsive pleading with the period to which he
was entitled at the time of filing his motion, which
shall not be less than five (5) days in any event.
(1[b]a)
Pareho no? From the time you receive the order of
the court, you have the remaining period to file your answer
but not less than five days in any event. Now, if the pleading is
ordered to be amended, the period prescribed in Rule 11,
which could be 15 or 10, commences to run counted from
service of the amended pleading. That is if the amended
pleading is filed before you have already filed an answer.
Otherwise, 10 lang. Di ba? You go back there. The period to
answer is on the amended pleading, not on the original. Wala
na yun. Superseded na.
This Sec. 4 has changed the old law. Under the 1964
Rules, if you file a motion to dismiss and your motion is denied,
you have 15 days all over again. Umpisa na naman. The
period of 15 days starts to run again. That is the old rule.
Ngayon, only the balance of your original 15 days but not less
than 5 days.
Refiling of action allowed
Sec. 5. Effect of dismissal. - Subject to the right of
appeal, an order granting a motion to dismiss
based on paragraphs (f), (h) and (i) of section 1
hereof shall bar the refiling of the same action or
claim. (n)
This is a new provision. As a general rule, if your
motion to dismiss is granted and the complaint is dismissed,
can the plaintiff refile the action? The general rule is yes.
Suppose you file an unlawful detainer case in the RTC, that will
be dismissed for lack of jurisdiction. You can refile it in the
MTC. Or, you file a case for unlawful detainer in Cotabato
when the property is in Davao, i-dismiss yan doon for improper
venue. You can refile it and this time in the correct venue. Or,
suppose your complaint against your brother has been
dismissed for failure to comply with conditions precedent,
tapos, you complied na with the requirement by making
earnest efforts towards amicable settlement, ngayon puwede
ka ng mag-refile. So, the general rule is when your complaint is
dismissed, you have the right to refile it.
Exceptions
Eto ngayon ang exceptions. Except when the
dismissal is based on paragraphs (f); (h) and (I). Ano ang (f)?
Where the action is already barred by prior judgment or by
statute of limitations. Definitely, kaya nga na-dismiss kasi
barred by prescription. Or barred by a prior judgment. When
that is dismissed, that is the end of the line for you. Par. (h):
That the claim or demand has already been paid, waived,
etc. So, you file a case against me to collect a loan. Motion
to dismiss. Bayad na, eh. Granted. Paano ka maka-refile.
Bayad na nga, eh. Par. (h): The action is unenforceable. so,
those are the exceptions. If the dismissal is based on the other
grounds, puwede. The action can be refiled.
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 Sec. 6. Pleading grounds as affirmative defense. - If
no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may
be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a
preliminary hearing may be had thereon as if a
motion to dismiss had been filed. (5a)
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action of a
counterclaim pleaded in the answer. (n)
Affirmative defenses in the answer
Is a defendant obliged to file a motion to dismiss? For
example, he has a ground for a motion to dismiss under Sec. 1,
is he obliged to file a motion to dismiss or not? No. The filing of
a motion to dismiss is optional. If he has grounds, he can file
an answer and use these grounds as affirmative defenses. So,
the grounds for a motion to dismiss are convertible into
affirmative defenses. I will file an answer and I will allege that
the court has no jurisdiction over the subject matter, litis
pendencia, res adjudicata, payment, statute of frauds, etc.
Bakit pa patagalin ang kaso? Kung no jurisdiction, why not
raise that immediately para matapos? Or the obligation has
been paid. because if you raise them as defenses, magtagal
pa yan, eh. The case will drag, the plaintiff will present
evidence. Tapos, ikaw na defendant, present ka rin ng iyong
evidence. Tapos, talo ang plaintiff. Why prolong the agony?
Preliminary hearing
According to Sec. 6, the defendant may file an
answer invoking these grounds as affirmative defenses and in
the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. What does
that mean? Example, you filed a complaint against me and I
believe that the court has no jurisdiction. or venue is
improperly laid. Or barred by prescription or res adjudicata.
Or whatever it is. I will file an answer with affirmative defenses.
After filing my answer, I will now ask the court via a motion for
a preliminary hearing on my affirmative defenses. Meaning, I
am asking the court to conduct a hearing on my defenses
ahead. Say, on my defense of no jurisdiction. Because if my
defenses are correct, then the court will dismiss the case and
there is no need to proceed to trial. It will save everybody
time and energy. So, the court will hear my defenses ahead.
No jurisdiction. Res adjudicata. I will argue my defenses. Then
the court will favor me and will order for the dismissal of the
case. Para ka na ring nag-file ng motion to dismiss. It is
equivalent to filing a motion to dismiss.
As a matter of fact, some veteran practitioners do
not file a motion to dismiss even if they have grounds. They will
instead file an answer with affirmative defenses. Like for
example, ang ground ko is your complaint states no cause of
action. File ako ng motion to dismiss. So, nakita ng plaintiff
yung error sa complaint niya. He will of course amend his
complaint. Patay na yung motion to dismiss ko. Because I
cannot prevent the plaintiff from amending. It is a matter of
right.
So, I will file an answer and I will invoke as an
affirmative defense that your complaint states no cause of
action. I will ask for a preliminary hearing. Unahin yung
affirmative defense ko. The plaintiff this time, upon realizing
the error in his complaint, can no longer amend his complaint
as a matter of right. Because I have already filed my answer.
Kung nag-file ako ng motion to dismiss, puwede pang i-amend
ng plaintiff. File ako ng answer para mahirapan siyang mag-
amend. Of course, the court may grant the amendment,
anyway the court is liberal but at least it is no longer a matter
of right. Yan. That is the strategy. Without filing a motion to
dismiss, you end up as if you filed a motion to dismiss because
of Sec. 6.
Kaya nga sa libro ng trial technique, meron doong
advice. Never expose the error of your opponent when he
can still cure the mistake or error. Let it go on until it reaches a
point where he cannot cure it anymore. So, it works to your
advantage.
Effect on counterclaim where complaint is dismissed
But take note of the second paragraph which is new.
The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer. Suppose the
defendant filed an answer with a counterclaim. He filed an
answer with affirmative defense and counterclaim and he
asked for a preliminary hearing on his affirmative defense
under the first paragraph. And the court dismissed the
complaint. What happens now to his counterclaim?
According to the new rules, the defendant can still prosecute
his counterclaim either in the same action or a separate
action. Meaning, he can decide to file another case. He will
abandon his counterclaim and file another case. Or, dismiss
the case and allow his counterclaim to continue.
This amendment has radically changed the old rules.
Because in the old rules, when the main action is dismissed, the
counterclaim should also be dismissed. lalo na yung
compulsory, di ba? It has no more leg to stand on. Kung
permissive, no problem. It can still remain. Pero kung
compulsory, wala ng base. It is only ancillary to the action. So,
when the action is dead, the counterclaim is also dismissed.
And there are decided cases where the SC said that when a
defendant moves to dismiss the complaint, he is in effect also
moving for the dismissal of his own counterclaim. Now, those
pronouncements are no longer true because of the last
paragraph of Sec. 6. This will be clearer when we reach the
next rule. Because that same principle is repeated in Rule 17.
End of Rule 16.
Rule 17
DISMISSAL OF ACTIONS
Sec. 1. Dismissal upon notice by plaintiff. - A
complaint may be dismissed by a plaintiff by filing a
notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon
such notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in
the notice, the dismissal is without prejudice, except
that a notice operates as an adjudication upon the
merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or
including the same claim. (1a)
Can a plaintiff file a complaint and change his mind?
I will file a complaint and I will dismiss it or withdraw it. The
answer is yes. That is your privilege. Is that a matter of right?
Can a plaintiff just decide to withdraw or dismiss it? Yes, by
simply filing a notice of dismissal at anytime before service of
the answer or a motion for summary judgment. What does it
mean? For as long as the defendant has not yet filed his
answer, the plaintiff has the right to dismiss his own complaint
by simply sending the court what is known as a notice of
dismissal. Take note, before defendant has served his answer.
That is similar to the rule on amendments of
pleadings. The plaintiff has the absolute right to amend his
complaint at anytime before the defendant has served a
copy of his answer. The same principle. Or, either an answer
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or a motion for summary judgement. Ano yang summary
judgment? Forget that in the meantime. That will be taken up
in Rule 35. What is important there is the answer although the
other possibility is a motion for summary judgment.
Upon such notice being filed, the court shall issue an
order confirming the dismissal. I file a complaint against you
and before you could answer, I dismissed it. Then after 2
weeks, I changed my mind again. Can I still refile the
complaint? File. Atras. Tapos file ulit. The law says the
dismissal in Sec. 1 is without prejudice. Anong ibig sabihin
niyan? Under the rules on civil procedure, there are two types
of dismissal:
1. Dismissal with prejudice
2. Dismissal without prejudice
If the dismissal is without prejudice, it means the case
can be refiled. If the dismissal is with prejudice, the case can
no longer be refiled. Pag with prejudice, that is the end of the
line. You cannot revive that case in the future. So, going back
to Sec. 1, suppose I filed a case against you and then I decide
to dismiss it. And then, I decided to refile it. Can I still refile it?
Yes, because the law says the dismissal is without prejudice.
So, it can be refiled. Except, meaning, this time it cannot be
refiled, unless otherwise stated in the notice (the opening
clause). What notice? The notice of dismissal filed by the
plaintiff. Example: I filed a complaint and before you could
file your answer, I will send a notice: The plaintiff hereby
notifies this court that he is dismissing his complaint with
prejudice. So, the plaintiff himself said it. It is now with
prejudice because my own notice said so. But if I just say: I am
dismissing my complaint. And the court would say: Alright,
upon notice of the plaintiff, this complaint is hereby dismissed.
Then, that is understood to be without prejudice. So, that is
the first exception. The dismissal under Sec. 1 is without
prejudice except if it is otherwise state in the notice.
Second exception: That the notice operates as an
adjudication upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action based on or
including the same claim xxx. Anong ibig sabihin ng that the
notice operates as an adjudication upon the merits?
Meaning, the dismissal is considered as with prejudice
because adjudication upon the merits, eh. Parang res
adjudicata. xxx when filed by a plaintiff who has once
dismissed in a competent court an action based on or
including the same claim. This second exception is known as
the TWO-DISMISSAL RULE.
Example: X filed a case against me to collect an
unpaid loan. After filing the case, I received the complaint
and the summons. I approached X. I-withdraw mo na lang
ang case. Bayaran kita next month. Huwag na tayong mag-
kaso-kaso. Sigurado ka? Oo. Pati pa interest. I-dismiss mo
lang yung kaso. So, I will file a notice of dismissal under Sec. 1.
That I am withdrawing my complaint. And the dismissal is
without prejudice. Then after one month, still X did not pay
me. Niloko ako. nabola ako ni X. I-file ko ulit ang kaso. So, for
the second time, gi-file niya ulit yung kaso. Nang malaman na
naman ni X, lapit na naman siya sa akin. Sigurado next month
magbabayad na ako. I-withdraw mo na. So, naatik na
naman ako. Pumayag na naman ako. So, I again sent a
notice of dismissal under Sec. 1. So, how many times na? Two
dismissals na. Then, after another month, hindi pa rin
nagbayad si X. Ngayon, galit na ako. So, I will file the same
complaint for the third time. This time, X will move to dismiss my
complaint because the second dismissal is now automatically
with prejudice. So, you can change your mind only once. You
cannot change it twice. The second dismissal is automatically
with prejudice. Pag-third time, defendant will now move to
dismiss and your complaint will be dismissed because of this
provision. So, si X wala ng utang sa akin. Hindi na ako maka-
file ng kaso sa kanya.
In other words, there is a limit to the filing of a case in
court. So, how do you describe the TWO-DISMISSAL RULE? It
simply means that when the same complaint had twice been
dismissed by the plaintiff simply by filing a notice of dismissal
under Sec. 1 of Rule 17, the second dismissal shall be with
prejudice. The first dismissal is without prejudice but the
second dismissal is automatically with prejudice.
So, I repeat. When a complaint is dismissed under
Sec. 1, Rule 17, is the dismissal with or without prejudice? It is
without prejudice except when the notice of dismissal by the
plaintiff itself says that he is willing to have his complaint
dismissed with prejudice. And the second exception is upon
the application of the so-called TWO-DISMISSAL RULE.
And the question has been asked: Suppose the
plaintiff filed a complaint and then dismissed it under Sec. 1.
Then he changed his mind and wanted to revive it. How do
you revive your complaint? Do you file another complaint?
Another case number? Or you simply ask the court to
resurrect your first complaint? These are actually 2 different
things. If you will just file a motion to resurrect your first
complaint, it will be the same case number, same judge. Hindi
ka na magbayad ng docket fee. Binuhay mo lang yung dati.
Pero pag panibago, then it will be another case. bayad ka na
naman ng docket fee. At least, nabuhay ulit. Now, how do
you do it? Which of the two? That was asked in the SC in the
1994 case of:
ORTIGAS & CO. LTD. vs. VELASCO
234 SCRA 455
The SC said: How do you revive
the complaint when it has already been
dismissed under Sec. 1? It depends.
Whether the order confirming the dismissal
under Sec. 1 has already become final and
executory or not. And normally, it is 15 days,
eh. So, if the court issued an order
confirming the dismissal, you count 15 days.
Before the lapse of 15 days, I changed my
mind, I want to revive it, there is no more
need to file another complaint. Just ask the
court to set aside the order of dismissal and
revive the case that was asked to be
dismissed. But if after 15 days from the time
the first case was dismissed, you can no
longer revive it by simply telling the court to
revive it. You must file another complaint.
Of course, word for word, pareho rin yun.
But this should be another case number,
another payment of docket fees.
So, we go to the second section - Dismissal upon
motion of the plaintiff. You will notice in Sec. 1, dismissal upon
notice lang. Sa Sec. 2, upon motion. Why? Because in Sec. 1
by the plaintiff is his absolute right. Actually, leave of court is
not necessary. Whereas, in Sec. 2, dismissal is with leave of
court. Let us read Sec. 2:
Sec. 2. Dismissal upon motion of plaintiff. -
Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff’s
instance save upon approval of the court and upon
such terms and conditions as the court deems proper.
If a counterclaim has been pleaded by a defendant
prior to the service upon him of the plaintiff’s motion for
dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to
the right of the defendant to prosecute his counterclaim
in a separate action unless within fifteen (15) days from
notice of the motion he manifests his preference to
have his counterclaim resolved in the same action.
Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice. A
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 class suit shall not be dismissed or compromised
without the approval of the court. (2a)
Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff’s instance save
upon the approval of the court and upon such terms and
conditions as the court deems proper. What does that mean?
The dismissal may be allowed by the court based on judicial
discretion. Paano yan? When the defendant has already
filed and served his answer. So, if the defendant has not yet
filed nor served his answer, and I want to dismiss my complaint,
no problem. Apply Sec. 1. But when the defendant has
already filed and served his answer, I can still dismiss my
complaint but upon approval of the court and upon such
terms and conditions as the court deems proper. parang
judicial discretion na.
The principle is the same in Rule 10 about
amendments of complaints. When is an amendment of
complaint a matter of right? Before the defendant has filed or
served a copy of his answer. How about when the defendant
has already served a copy of his answer? Amendment of the
compaint is still allowed but upon judicial discretion. So, the
same. So, hindi na kailangan ang notice. Merong motion
upon approval of the court.
What happens when you file your complaint, I filed
my answer and I have a counterclaim against you. Then
nakita mo parang yung counterclaim ko malakas. So, i-dismiss
mo ngayon your complaint. Puwede man but paano ang
counterclaim ko? Buhay. Maiwan ang counterclaim ko. That
reflects again the radical change in the new rules. Under the
old rule, when you file a complaint and I file an answer with a
couterclaim and you want to dismiss your complaint, my
counterclaim will remain alive if it is permissive. But if it is
compulsory and you dismiss the complaint, my counterclaim
will also die. Therefore under the old rule, if I file an answer with
compulsory counterclaim, and you want to dismiss your
complaint, I can say I object. Paano yung counterclaim ko?
Meaning, I do not want a dismissal. Tuloy ang kaso because if
I will agree to your dismissal, my counterclaim will die. Eh,
gusto kong ilaban ang counterclaim ko. Compulsory, eh.
Kung permissive, walang problema. So, under the old rule,
pag ganyan, the plaintiff cannot dismiss his complaint
because the defendant is objecting.
Ngayon, you file a complaint, I file an answer with a
compulsory counterclaim and then you dismiss your
complaint, okay lang. Ang compulsory countercaim ko buhay
pa rin because the law says so. If a counterclaim has been
pleaded by the defendant prior to the service upon him of the
plaintiff’s motion for dismissal, the dismissal shall be limited to
the complaint. Even if the counterclaim is compulsory
because the law does not distinguish.
That is now allowed by the new rules although it still
retains picture of the old rules because the third sentence says
the dismissal will be without prejudice to the right of the
defendant to prosecute his counterclaim in a separate action
unless within 15 days from notice of the motion, he manifests hi
spreference to have his counterclaim resolved in the same
action. That is also new. So, it retains some features of the old
law. When the complaint is dismissed, the counterclaim is also
dismissed. But the defendant has the right to file another case
involving them. Or, within 15 days, sabihin kong ayokong
mag-file ng ibang kaso. I prefer to prove my compulsory
counterclaim in the same case. So, now the defendant has
the choice of litigating his counterclaim in the same action
which has already been dismissed or filing a separate action in
the future involving his counterclaim. But he has to notify the
court within 15 days of his preference to have his counterclaim
resolved in the same action. That is as I said a radical
departure from the old procedure.
Now, if an action is dismissed under Sec. 2 by the
plaintiff although with leave of court, can he revive or refile the
same action in the future? The law says yes. A dismissal under
this paragraph shall be without prejudice. Exception: Unless
otherwise specified in the order. That is the opening clause.
Unless the court itself orders the dismissal to be with prejudice.
For example, the court will say: Upon motion by the plaintiff,
his complaint is hereby dismissed. Can the plaintiff refile the
case? Yes because a dismissal under this paragraph shall be
without prejudice.
Suppose the order is worded in this manner: : Upon
motion by the plaintiff, his complaint is hereby ordered
dismissed with prejudice. Patay ka. Pagnilagay yung phrase
na with prejudice, then you can no longer file your action. But
if the order is silent, it is deemed to be without prejudice. So,
that is the similarity between Sec. 1 and Sec. 2.
The last sentence: A class suit shall not be dismissed or
compromised without the approval of the court. When you
file a class suit, you are not only fighting for yourself. You are
fighting for the others. So, you cannot just withdraw it on your
own. You will be causing prejudice to everybody. So, I cannot
file a class suit in behalf of all of us and then I just change my
mind. My golly. Damay kayong lahat. So, in order to prevent
the person who filed it from prejudicing the right of the
members of the class suit, it cannot be dismissed or
compromised without the approval of the court. That is
common sense.
Now, we will go to Sec. 3 which is the most important
section in this rule:
Sec. 3. Dismissal due to fault of plaintiff. - If for no
justifiable cause, the plaintiff fails to appear on the date
of the presentation of his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court’s own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same
or in a separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless
otherwise declared by the court. (3a)
A complaint may be ordered dismissed under Sec. 3,
Rule 17 on any of four possible grounds. What are the grounds
for dismissal under Sec. 3?
1) The plaintiff fails to appear on the
date of the presentation of his evidence
in chief on the complaint.
2) The plaintiff fails to prosecute his
action for an unreasonable length of
time
3) The plaintiff fails to comply with these
Rules; or
4) The plaintiff fails to comply with any
order of the court.
So, these are the four grounds for dismissal. In any of these, the
court, upon motion of the defendant or on its own may order
the complaint dismissed.
1) The plaintiff fails to appear on the date of the presentation of
his evidence-in-chief on the complaint.
This is what lawyers and judges popularly call as to
declare the plaintiff as NON-SUITED. You file a complaint
against me. I file an answer. Then the trial will be tomorrow
morning. Pagdating ng trial, siyempre ikaw ang plaintiff
mauna ka. Nandoon ako, the lawyer is there. The defendant
is there. Ang plaintiff wala. Hindi nagsipot. He is supposed to
present his evidence to support his action. His lawyer is also
absent. So, when the case was called, only the defendant is
present and his lawyer. Chances are, we will verify. Baka
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naman hindi nasabihan ang plaintiff or his lawyer? They are
notified. They know. There is no motion for postponement.
Then the court may ask the lawyer of the defendant: What is
your pleasure? Your Honor, we will move to declare the
plaintiff as NON-SUITED. He is applying Sec. 3. The court will
now declare the plaintiff as NON-SUITED. That is the penalty for
not appearing on the date of the trial.
What if it is the other way around? During the trial
naman, ang plaintiff ang nandoon, ang defendant naman
ang wala. Ano ang gagawin ng plaintiff? We will proceed
with the trial ex parte without the defendant. Not default.
So, that is the term used. Actually it is not really an
accurate term in the light of jurisprudence. But I do not want
to go on why it is not accurate. Sometimes text writers call it
nole prosequi. Ano ba yang NON-SUITED? Yun bang hindi ka
mag-sipot. Noli prosequi? Ambot. Hindi nga familiar na term,
eh.
Now, there are some modification in the language of
the law. The present law says the plaintiff fails to appear on
the date of the presentation of his evidence in chief on the
complaint. The prior law says if the plaintiff fails to appear for
trial. That was Sec. 3, Rule 17 of the prior rule. When the
plaintiff fails to appear for trial the case can be dismissed.
Ngayon, fails to appear on the date of the presentation of his
evidence in chief on the complaint. There has been a
modification. What is that for? To my mind, this change has
been taken from the ruling of the SC in the case of:
JALOVER vs. YTORRIAGA
80 SCRA 100
A, plaintiff filed a case against B.
During the trial, A presented his evidence to
prove his cause of action. Yung tinatawag
na evidence in chief. That is a technical
term. Ang evidence in chief is the evidence
to prove your main cause of action in the
complaint. After presenting his evidence,
tapos na. Next hearing, defendant naman
will present his evidence to prove his
defense. But the plaintiff did not appear.
The defendant and his lawyer were around.
The defendant moved to dismiss the
complaint because of plaintiff’s failure to
appear during the trial although A
appeared for trial months ago. And the
court dismissed the complaint because of
Rule 17, Sec. 3.
The SC said the order of the court
is wrong. Why do you say failure to
prosecute when actually he has already
prosecuted his case? Tapos na nga siya.
He has already presented his side. It is
already your turn. It is different if the plaintiff
has not presented anything and he did not
appear. Talagang i-dismiss mo. Pero tapos
na siya. He has already prosecuted his
case so why will you dismiss it? What the
court should do is to proceed with the trial
without the plaintiff. In effect, the court
violated the right of the plaintiff by deciding
the case against him without considering
the evidence he already presented.
So with that clarification in the case of JALOVER, the
law is now clear. The plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint. So, if
he fails to appear on the date of the presentation of his
evidence in chief on the answer, this will not apply. The trial
will simply proceed without the plaintiff but do not dismiss the
case.
Now, take note that plaintiff fails to appear but the
opening clause says if for no justifiable cause. Why? Because
there are instances where the complaint is dismissed and then
afterwards, the plaintiff through his lawyer seeks a
reconsideration. Actually, the reason why I failed to appear is
because of this and that. Example. The case was called at
8:30. Wala ang plaintiff. Ah, dismissed. After 10 minutes,
dumating ngayon ang plaintiff. We are sorry Your Honor. We
are delayed by the traffic. Na-flat tire pa kami. galing pa
kami sa malayo. So, we move for reconsideration of the order
of dismissal. Should the court insist on the dismissal or the court
will lift the order of dismissal? The court should lift the order.
For no justifiable cause xxx. Eh, justifiable cause ito. Ten
minutes late lang. Or, in some cases, the notice for trial
reached the lawyer after the date of the trial. So, I will file a
motion for reconsideration for failure to appear on time
because of said reason.
2) The plaintiff fails to prosecute his action for an
unreasonable length of time
That is another ground. It is not the same as failure to
appear. Fails to prosecute. For example yung kaso had not
been moving and the plaintiff has not done anything to see to
it that the case is moving. Because ikaw yung plaintiff, you
should be the one to follow up. Or, you file your case and the
defendant cannot be served with summons because he
moved to another place. sabi ng court: Alright plaintiff,
please furnish this court a copy of the new address of the
defendant so that we can send another summons. Wala.
One month, two months. Plaintiff submit the new address.
Wala. One year na. Wala pa rin. Kung ako ang judge,
pabayaan ko ba yan? Patayin ko na ang kaso mo. Bakit?
Ako ang tamaan niyan. Pending sa akin. Hindi ko naman
kasalanan. So, I wil dismiss the case for failure to prosecute.
Because you cannot even tell me the address of the
defendant. Or, may kaso. Tapos trial. Plaintiff is there. Your
Honor, we are moving for postponement. We are not ready.
Okay lang sa defendant. Pagdating ng February, Your Honor,
we are moving to postpone. We are not ready. Oppose na
ang defendant. Pero pagbigyan pa rin natin. Okay. March.
Your Honor, we are moving to postpone again. Suko na ang
defendant. Hindi puwede. Just this time your honor. Okay pa
rin. Pagbigyan. April. Your Honor, we are moving to postpone.
We are not yet ready. My golly. This is the fourth time. Sige
granted pa rin. Pagdating ng May, Your Honor, we are moving
to postpone. We are not yet ready. I-dismiss na yan. Always
appearing pero hindi naman ready. So, failure to prosecute.
The court is now justified to dismiss.
What the problem is what is reasonable or
unreasonable length of time? Yan ang flexible. Siguro mga
one or two postponements. Pero yung sa example ko na 5 - 6
postponements, sobra naman. So, what is unreasonable
length of time? According to the SC, what constitutes an
unreasonable length of time within the meaning of the rule
depends upon the peculiar facts of each case and is a matter
addressed to the sound discretion of the court. Siguro, the
longer the case has been pending, it becomes more and
more unreasonable.
3) The plaintiff fails to comply with these Rules; or
4) The plaintiff fails to comply with any order of the
court.
Failure to comply with a court order. Let us connect
this with something you are already familiar with. The plaintiff
owns a store Juan dela Cruz Store. He filed a complaint which
says Juan dela Cruz Store, plaintiff vs. B defendant. B will move
to dismiss the case on the ground that Juan dela Cruz Store is
not an entity with a legal personality. Of course, the judge will
not dismiss the case but instead direct the plaintiff to amend
his complaint. Curable ang defect, eh. But plaintiff failed to
amend when ordered to do so. What happens? The court will
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now order the dismissal of the case. Or, failure to grant a bill of
particulars. So, these are grounds for dimissal under Sec. 3.
Can the court dismiss plaintiff’s complaint under Sec.
3 without a motion to dismiss filed by the defendant? Yes,
because the law says the complaint may be dismissed upon
motion of the defendant or upon the court’s own motion xxx.
Motu propio, ba. So, the court can dismiss on its own initiative.
As a general rule, should the court dismiss the action
without a motion to dismiss filed by the defendant? No. Why?
Because of Sec. 1, Rule 9.
Sec. 1. Defenses and objections not pleaded.
- Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived.xxx
That is the reason. Even if a have a ground for a
motion to dismiss, I will not file a motion to dismiss because the
law says waived. So, why will the court dismiss it? Ako ang
judge. Klaro sa complaint that venue is improper. The plaintiff
is a resident of Manila. The defendant is also a resident of
Manila. The action is personal. Tapos, gi-file sa Davao.
Improper venue. I will wait for the defendant to file a motion
to dismiss on that ground. Instead, he filed an answer and he
did not even raised improper venue. Bayaan ko. I will try the
case. In effect, there is waiver. When you do not allege a
ground for a motion to dismiss, you are waiving it. And if you
are waiving it, why will dismiss the complaint? That is the
reason. Very simple.
Now, are there exceptions to that rule? Are there
instances where the court may dismiss even if without the
defendant moving to dismiss? Yes. There are already four
instances mentioned in Sec. 2. For no justifiable cause, when
the plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint; or when he fails to
prosecute his action for an unreasonable length of time; or
when he fails to comply with these rules or any order of the
court. The case will be dismissed upon motion by the
defendant or upon the court’s own motion.
Meron pa bang iba? You go back to Rule 9, Sec. 1:
Sec. 1. Defenses and objections not pleaded. - xxx
However, when it appears from the pleadings or the
evidence on records that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same cause,
or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
(2a)
So, those are the exceptions. The law authorizes the
court to dismiss the action even without a motion. Now, if the
case is dismissed under Sec. 3, what happens to the
counterclaim of the defendant? Can the counterclaim
remain alive or it is also dismissed? The same principle found in
Sec. 2. Without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate
action. So, it is for the defendant to decide whether to
prosecute his counterclaim in the same case or he wil agree
that the case be dismissed and opts to file another case in the
future. That is also an amendment introduced by the 1997
Rules.
The last point to determine here is when a complaint
is dismissed under Sec. 3 say, for failure to prosecute or failure
to appear during the presentation of your evidnce in chief,
can I refile the action? The last sentence of Sec. 3 says: xxx
This dismissal shall have an effect of an adjudication upon the
merits unless otherwise declared by the court. Meaning, this
dismissal shall have the effect of res adjudicata. So, the
dismissal here is with prejudice. Unless in the order of dismissal,
the court will say the dismissal is without prejudice. It is the
exact opposite of Sec. 2. In Sec. 2, the dismissal is without
prejudice unless the order of dismissal says otherwise. In Sec. 3,
the dismissal is with prejudice unless the order of dismissal says
otherwise.
So, here is the problem. For failure to appear in court,
the court dismissed my case. For failure of the plaintiff to
appear in court for the presentation of his evidence despite
being notified and without any reason for non-appearance,
upon motion of the defendant, the complaint is hereby
dismissed and the plaintiff is hereby declared NON-SUITED.
Period. Several months later, I will refile the same action.
Allowed or not allowed? Not allowed. Because the order is
silent on whether with or without prejudice. Therefore, it means
with prejudice.
Suppose ang dismissal ganito. For failure of the
plaintiff to appear in court for the presentation of his evidence
despite being notified and without any reason for non-
appearance, upon motion of the defendant, the complaint is
hereby dismissed without prejudice. Can the plaintiff refile?
Yes, because nilagay yung phrase na without prejudice.
Importante yun.
It happened in South Cotabato where the lawyer
always asked for postponement. ayaw niyang magbiyahe
papunta doon. Nabuwisit ang judge doon sa kaka-postpone.
So, the complaint was dismissed. so, file siya ng
reconsideration. Denied ng judge. I-refile ko na lang and
offered to pay for the docket fee. anyway, within the 15 day
period pa man. Kay mahiya man siya sa kliyente niya. So, file
siya ng motion to amend the order of dismissal. Please,
palagyan lang ng words without prejudice to give them a
chance to refile the case. Buti naman pumayag ang court.
Otherwise delikado. Res adjudicata.
So, a dismissal under Sec. 1 is without prejudice unless
it falls under the 2 exceptions. In Sec. 2, the dismissal is without
prejudice unless the order of dismissal says it is with prejudice.
In Sec. 3, the dismissal is with prejudice because it is an
adjudication upon the merits unless otherwise declared by the
court. so, remember these principles.
REPUBLIC PLANTERS BANK vs. MOLINA
166 SCRA 39
When the law says it shall have the
effect of an adjudication upon the merits,
that is tantamount to saying the principle of
res adjudicata applies. Barred na from
refiling. So, in effect, the dismissal is with
prejudice.
RBP filed a case for collection of an unpaid
loan against defendant. The defendant
was never summoned because he could no
longer be located at his given address.
Despite several efforts, the plaintiff could
not supply the court of the plaintiff’s address
so that new summons could be issued. So,
since this has been dgoing on for a long
time, the court ordered the complaint of
the plaintiff as dismissed for failure to
prosecute the case within a reasonable
length of time under Sec. 3. Plaintiff refiled
the case later because somehow, RPB
located now the defendant. So, the same
complaint was refiled for the second time.
This time, defendant moved to dismiss the
second complaint on the ground of res
adjudicata under Sec. 3. Because when
the court ordered the first complaint as
dismissed, it did not say that it was without
prejudice. So, it is understood to be with
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 prejudice. There is therefore no way for the
case to be refiled. In effect, there is already
res adjudicata.
Issue: Is there res adjudicata since
the first action was dismissed for failure of
plaintiff to prosecute within a reasonable
length of time although in said case, the
trial court never acquired jurisdiction over
the person of the defendant?
The SC said there is no res
adjudicata. (You will appreciate this more
when we reach the principle on res
adjudicata in Rule 39). Because one of the
elements of res adjudicata for it to apply is
that the court must have acquired
jurisdiction over the subject matter and over
the person of the defendant in the first
action. When the court never acquired
jurisdiction over the person of the
defendant in the first action, then there
could be no res adjudicata. Here, why was
the first case dismissed? Precisely because
the defendant cannot be summoned. So
the court never acquired jurisdiction over
the person of the defendant in the first
action. Therefore, notwithstanding the
language of Rule 17, Sec. 3, there could be
no res adjudicata because of the missing
element that the court never acquired
jurisdiction over the person of the
defendant. Therefore, the second action
can be refiled.
The SC said: The order of dismissal
in the first case does not have the effect of
an adjudication upon the merits of the case
because the court that rendered the same
did not have the requisite jurisdiction over
the person of the defendant therein. This
being so, it cannot be the basis of res
adjudicata and it cannot be a bar to a
lawful claim. If at all, such a dismissal may
be considered as one without prejudice.
Sec. 4. Dismissal or counterclaim, cross-claim,
or third-party complaint. - The provisions of this Rule
shall apply to the dismissal of any counterclaim, cross-
claim, or third-party complaint. A voluntary dismissal
by the claimant by notice as in Section 1 of this Rule,
shall be made before a responsive pleading or a
motion for summary judgment is served or, if there is
none, before the introduction of evidence at the trial or
hearing. (4a)
There is nothing much here. The above rules,
Sections 1, 2 and 3 also apply to dismissal of counterclaim,
cross-claim or third-party complaint. Just apply it by analogy.
End of Rule 17.
Rule 18
PRE-TRIAL
I think you have an idea about a pre-trial because
there is also such a thing as pre-trial in criminal cases. I think it
is Rule 118, Pre-Trial in Criminal Cases. what is a pre-trial? A
case is filed against the accused. A warrant of arrest is issued.
The accused is arrested. He is now within the jurisdiction of the
court. Then pre-trial. Ano ang pag-uusapan diyan? What do
you do there? Plea bargaining. I will enter into a plea of a
lesser offense. Or discuss simplification of issues. How many
witnesses will we present? Or any other matter which we may
add. That is in criminal cases. Sa civil, ganoon din. No case
can reach the trial stage in a civil case without passing
through a pre-trial. Dadaan ka muna.
Sec. 1. When Conducted. - After the last pleading
has been served and filed, it shall be the duty of
the plaintiff to promptly move ex parte that the
case be set for pre-trial. (5a, R20)
After the last pleading has been served and filed.
The last pleading is the reply. So, after plaintiff has filed and
served a copy of his reply, he will now file a motion in court to
set the case for a pre-trial. Suppose the plaintiff will never
bother to file a reply? Nasa kanya na yan. If he does not
want to file a reply, we will consider the answer as the last
pleading. And the plaintiff will say: I filed the complaint,
answer has already been served, I am not filing a reply,
therefore, I am asking that the case be set for pre-trial. He will
file an ex parte motion. So, this is one motion where you can
file ex parte. Hindi mo na kailangang bigyan ang kabila. So
that the ball will keep on rolling. Pag-file mo niyan, the clerk of
court will now schedule the case for pre-trial.
Now, this is a change as compared to the old law.
Under the old law, nakalagay doon, after the last pleading has
been filed, the clerk of court shall set the case for pre-trial. The
clerk of court will take the initiative. Now, plaintiff na mismo.
Ikaw ang plaintiff, ikaw ang interesado, ikaw ang kumilos. That
is what the law says. Right now, there are still lawyers who do
not know this. They filed the case August or September pa.
January na wala pa rin na-set for pre-trial. Wala pa silang
notice from the court setting the case for pre-trial. Hindi sila
nag-file ng motion,eh. Pag-hindi ka nag-file ng motion to set
the case for pre-trial, hindi kikilos ang kaso mo. Otherwise, i-
dismiss yan ng court for failure to prosecute.
Sec. 2. Nature and purpose. - The pre-trial
is mandatory. The court shall consider:
a) The possibility of an amicable settlement or of
a submission to alternative modes of dispute
resolution;
Take note that the pre-trial is mandatory. So, no civil
action can never go to trial without passing through pre-trial.
That is one distinction between pre-trial in civil cases and pre-
trial in criminal cases. Remember Rule 118 in Criminal
Procedure? Pre-trial in criminal cases is not mandatory. It must
be upon consent of the accused and his lawyer. So, kung
hindi pumayag ang accused, walang pre-trial. It is optional.
But in civil cases, it is mandatory.
Amicable settlement
In a pre-trial, there are 8 possible matters to be taken
up. And the foremost is par. (a) which is the possibility of an
amicable settlement or of a submission to alternative modes of
dispute resolution. Is there a way of settling the case
amicably? That is the first thing. So, the parties and the
lawyers will go to court. Ito ang pag-usapan natin. And
remember this: The policy of the law in civil cases is settlement.
Areglo. Kung may areglo kasi, you save time and expense.
Magbigayan tayo. You get something from me, I get
something from you. Pirmahan tayo and we submit the
agreement to the court. So, walang panalo, wala ring talo.
We shake hands and everybody goes home happy.
There was an article I read and I think it is true. It says
that one of the best gauge of a good lawyer is not that he has
any cases, that he knows how to try a case but that he knows
how to settle a case. He saves his client from a lot of trouble.
And a bad lawyer is one whose cases always end up in trial.
He becomes overloaded with so many cases. He does not
have the time to study each and everyone of them. So, he
ends up inefficient. Of course, yung mga bagong abogado,
hala sige ang trial para ma-practice nang husto.
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As a matter of fact, even Abraham Lincoln, one of
the best presidents the Americans had, and he was a very
good lawyer before he became a politician made this sort of
advice to lawyers: Discourage litigation. Persuade your
neighbors to compromise whenever you can. Point out to
them how the nominal winner is often a real loser in fees,
expenses and waste of time. As a peacemaker, the lawyer
has a superior opportunity of being a good man there will still
be business enough. Meaning, if you are a lawyer, malakas
ang impluwensa mo. You can convince your client to settle.
Don’t worry about losing fees. Marami pang kasong darating.
Even if you will come out the winner in the case, you are still
the loser in terms of waste of time, money and effort.
Arbitration
Or, of a submission to alternative modes of dispute
resolution. Meaning, how to dispose of the case without
passing to court, ba. Arbitration. Similar to voluntary
arbitration in the labor code. Mas mabilis yan. Kung sa court
yan, matatagalan pa yan. Example yang controversy in the
construction industry. Pagawa ka ng building. You quarrel
with your contractor whether the building is properly
constructed or not. that kind of dispute has to pass through
arbitration yung tinatawag na contractors. The one who will
judge because they are experts in construction. That way,
mas mabilis. Anong malay ng judges sa engineering? So, yan
ang tinatawag na alternative modes of dispute resolution.
So, if the parties can settle, wala ng kaso. The case
ends at pre-trial. But suppose, hindi talaga madala sa areglo,
the pre-trial is still not a failure because according to Sec. 2,
there are other purposes of a pre-trial. Meron pang iba. Like
how can we hasten the trial? So, we talk about the rest of the
paragraphs. And this is where many judges are a failure.
They do not know how to conduct a pre-trial. Despite many
seminars by the judicial academy along this line, still hindi sila
marunong. They set the case for pre-trial because the law
says so. But during the pre-trial, they do not bother to exert
efforts to convince parties to settle amicably. Actually, the
judge plays a very strong influence, eh. Areglo na lang kayo.
Mag-referee ba. Ang nangyayari, after no settlement is
reached, order kaagad ang court to proceed to trial. Anong
nagyari sa ibang matters na puwede pang mapag-usapan
like simplification of the issues? Para ma-hasten ba ang kaso.
That is why the SC lamented in the case of:
DBP vs. CA
169 SCRA 409
The pre-trial procedure has not
been really effectively used by the courts
even as it became a mandatory rule under
the ‘64 Rules.
Look at the other grounds for a pre-trial.
b) The simplification of the issues;
That would help the court in resolving the issues easily
where the issues are simplified or limited.
c) The necessity or desirability of amendments to
the pleadings;
Meaning, is it desirable that the complaint or answer
be amended? Take note that there is already a complaint,
there is already an answer and yet during the pre-trial, the
parties can still amend their complaint or answer. That means
that amendments of pleadings are favored even at this stage.
For example, during the pre-trial, is the plaintiff still allowed to
amend his complaint to completely change his cause of
action? Yes. I don’t think it is dilatory. The requirement in Rule
10 that amendment of pleadings should not be allowed when
it is dilatory is not violated. How can it be dilatory we have not
even started with the trial?
Here is a bar problem: Suppose there is a pre-trial on
the complaint of the plaintiff. During the pre-trial, the plaintiff
manifested his intent to amend his complaint. The court
allowed him. So, there is now an amended complaint. Is
there still a necessity of conducting another pre-trial on the
amended complaint?
The UP Law Center (they are experts in remedial law)
suggested this answer: It depends on what kind of
amendment it is. If the complaint is amended and the cause
of action is completely different from the original, then there is
a necessity of a second pre-trial. But if the amendment is
merely formal, there is no need of conducting a new pre-trial.
To my mind, the answer is logical. But there is a decided case
which the committee failed to consider.
INSURANCE CO. of NORTH AMERICA vs.
REPUBLIC OF THE PHILIPPINES
21 SCRA 887
Said the SC: Where a pre-trial has
already been had, the fact that an
amended complaint was later filed did not
necessitate another pre-trial. So,
technically, there is no such a thing as a
second pre-trial. Unless, the parties will
voluntarily agree on a second pre-trial
based on the amended complaint.
d) The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
Stipulation of facts means we can agree on some
facts and there is no need of proving them in court because
we already agreed. Meaning, the trial will be faster. Example,
land case. Do you admitted that the property consists of 20
hectares? Admitted. Do you admit that there are
improvements in the property? Okay. There are 1,000
coconut trees? Admitted. So, during the trial, I do not have to
present witnesses and prove how many coconut trees are
there, etc. Admitted na, eh. So, the trial is faster. And also the
documents. I have so many documents and during the trial, I
have to prove that all these are genuine. That they have
been validly executed. That the signatures therein are of
these persons. So, sa pre-trial, pakita na yung documents.
Eto, tingnan mo. Do you admit that these documents are
genuine? That they are authentic? Admitted. So, without the
pre-trial where we can agree on what documents to present,
we still have to prove that each and every document is
genuine. Matatagalan pa. Pero with a pre-trial, mas mabilis.
So, the court should encourage. But the court should not
force the parties to stipulate. Like what happened in the case
of:
PHILOIL MKTG. vs. DY PAC & CO.
160 SCRA 133
The court was practically
compelling the parties to agree on the
facts. The SC said: No law can compulsorily
require litigants to stipulate on the pre-trial
on the facts and issues that may possibly
crop up in a particular case upon pain of
dismissal. Courts cannot compel the parties
to enter into an agreement on the facts.
The court can and should encourage
parties to stipulate facts but the court
cannot compel them to stipulate under
threat of dismissal. Agreement is voluntary.
If I do not want to agree because the facts
are not favorable to me, I would rather go
to trial.
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e) The limitation of the number of witnesses;
The court usually asks: How many witnesses do you
have? Around three Your Honor. How about you defendant?
Sa ganoon, ma-estimate na natin kung gaano katagal ito.
Kung sabihin mo you have 100 witnesses, baka puwede nating
i-trim down. Otherwise, aabutin tayo ng isang taon sa trial.
One witness will testify on the improvements made on the land
because he is the one in charge. The other 99 will corroborate
his testimony. My golly. Can we not reduce it to 2 or 3?
Anyway pareho naman ang sasabihin nila. So, bibilis ang
takbo ng kaso.
f) The advisability of a preliminary reference of
issues to a commissioner;
This will be clearer when we reach Rule 32, on Trial by
Commissioners. Example, the case in the RTC involves
accounting. Plaintiff will present 500 invoices and receipts.
The defendant will also present 500 invoices and receipts. W
will find out kung sino ang may utang. If the court will
entertain all of these, masyadong matagal. Plus the fact that
the judge is not an accountant. And the only issue to be
resolved is who is indebted to whom. How much is the
account? So, the court will appoint a CPA to assist the court.
Doon kayo mag-usap with the CPA who will render a summary
report which will be submitted to the court. That will save the
court a lot of time. The CPA who is appointed by the court is
called a commissioner.
Or, yung cases on boundary dispute. Sabi ni A, B
encroached on his land. B denies. So, ipa-survey. Ang
kailangan diyan ay isang geodetic engineer or surveyor. So,
the court will appoint a geodetic engineer to resurvey the
property and draw a sketch as to the boundaries in question.
So, the court will be guided as to who is telling the truth. And
that is allowed.
g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action should
a valid ground therefor be found to exist;
During the pre-trial according to this ground, the
court can render immediately what is called a judgment on
the pleadings or a summary judgment. Meaning, sa pre-trial
pa lang, there is already a judgment. That is what is called
judgment on the pleadings or summary judgment. That will
become clearer when we reach Rule 34 (Judgment on the
Pleadings) and Rule 35 (Summary Judgment). These are
procedural methods under the rules for the early and speedy
termination of civil cases where there is no need to go to trial.
Or the court can even order the action to be
dismissed if there is a valid ground for dismissal. In the course
of the pre-trial, the court may detect that the court has no
jurisdiction, or there is litis pendencia, or there is prescription,
etc. And Rule 9, Sec. 1 says defenses and objections not
raised in a motion to dismiss are deemed waived. But in the
course of the pre-trial, these grounds are existing, then the
court may dismiss it.
h) The advisability or necessity of suspending the
proceedings; and
So, i-hold muna yung proceedings. The case will be
suspended. No action. This is a new ground in Rule 18. Under
the old rule, there was no such ground as this. But there was
another rule on suspension of proceedings, Rule 21. This rule
disappeared already. Nilipat pala dito sa Rule 18. Isang line
na lang. Tapos, nakalagay pa yung the grounds for
suspension of proceedings. What are these grounds? The
answer now is found in Rule 30, Sec. 8.
Sec. 8. Suspension of actions. - The
suspension of actions shall be governed by the
provisions of the Civil Code. (n)
Actually, it points to the civil code. So, what does the
civil code say? The answer is in Art. 2030 of the Civil Code.
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 party refused the offer.
The duration and terms of the suspension of
the civil action or proceeding and similar matters
shall be governed by such provisions of the rules of
court as the Supreme Court shall promulgate. Said
rules of court shall likewise provide for the
appointment and duties of amicable
compounders.
So, those are the grounds. If the parties would like to
talk about compromise. Amicable settlement. Posible yan.
Example sa pre-trial, hindi talaga maka-reach ng amicable
settlement. Baka puwede pagmalamig na ang ulo. Tapos,
willing naman ang both parties to listen to each other. In that
case, the parties may move that the proceedings be
suspended. Normally 60 days yan, eh. So, the court will grant
that. Baka pagbalik nila after 60 days nagka-ayos na sila.
Why is that allowed by the civil code? Because of the policy
that amicable settlement is encouraged in civil cases.
I) Such other matters as may aid in the
prompt disposition of the action. (1a, R20)
That is very broad. Any other matter which could
help to dispose of the case speedily. Anything under the sun
can fall under this.
So, going over Sec. 2, analyzing the purposes of a
pre-trial, you will notice that the main purpose of a pre-trial is
how to end the case amicably. And if it is impossible, at least
we can limit the pendency of the case. Para ma-hasten ang
pagtakbo ng kaso. Can you imagine if every lawyer, party or
judge will follow Sec. 2 honestly and sincerely, walang kasong
magtagal. The pre-trial is indeed helpful in the speedy
termination of cases.
Sec. 3. Notice of pre-trial. - The notice of pre-trial shall
be served on counsel, or on the party who has no
counsel. The counsel served with such notice is
charged with the duty of notifying the party
represented by him. (n)
Under Sec. 1, it is the duty of the plaintiff to promptly
move ex parte that the case be set for trial. With that, may
notice ka from the clerk of court. Notice of pre-trial. It is going
to be held on this date and at this time. The notice of pre-trial
shall be served on counsel. Or, on the party who has no
counsel. We know that, di ba.
The second sentence is a new provision. Under the
old rules, there must be notice of pre-trial to the lawyer and to
the party. The notice to the lawyer is different from the notice
to the party. In Rule 13, normally, notice to lawyer is notice to
party. When the lawyer is notified, the party is deemed
notified. But in a pre-trial conference, it is not applicable.
Aside from the notice to the lawyer, there must be another
notice to the party. That is why, there were instances under
the old rules that a notice was served only to the lawyers.
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Counsel notified the plaintiff of the notice. But the counsel for
the defendant never told his client. As we shall see, the parties
are required to be present. So, pagtawag ng kaso, the
defendant was not around. And the counsel for the
defendant argued that while there was notice to him, there
was no notice to his client. And since the rules require that the
notice must be sent to the counsel AND his client, and there
was failure to serve notice to the defendant, then the
defendant cannot be faulted for not having showed up. Of
course, the lawyer here is very technical but he is correct.
Because aside from the notice to the lawyer, there must be a
separate notice to the party.
Now, they have changed that. If the counsel is
notified, he has to tell his client. So, it went back to the
genera rule that notice to counsel is notice to client. Now, of
course, if there is no written notice at all, that is different. You
cannot expect a lawyer or a party to be present in the pre-trial
when no notice was received by them. That would be a
denial of due process.
ARCILLA vs. ARCILLA
138 SCRA 560
Defendant and his lawyer were
notified in writing of a pre-trial conference
on July 29. They appeared. The pre-trial
however was not finished on that day. So,
the court ordered the same pre-trial reset in
the presence of all the parties to Oct. 2. On
Oct. 2, defendant and his lawyer did not
show up. So, they were penalized under
Sec. 5 for non-appearance. The defendant
contended that the order was illegally and
improperly issued because they did not
receive any written notice of the pre-trial
conference on Oct. 2. Therefore, all
subsequent proceedings, including the
judgment rendered against the defendant
were void.
The SC said: At first glance,
defendant’s contention appears to be
correct. an order penalizing the defendant
in the absence of a notice of pre-trial
constitutes a denial of due process. But a
deeper examination of the pleadings and
the records of the case would show that
defendant was present during the pre-trial
conference on July 29 when the lower court
reset the pre-trial. On Oct. 2, although
notified during the first trial, defendant and
his counsel did not appear. Therefore, they
were validly penalized under Sec. 5.
The lawyer was being very technical. Normally kasi,
kahit alam mo na, meron pa ring notice confirming the
agreed date. In this case, wala talagang na-receive ang
abogado and his client. Alam ko an na Oct. 2, yun ang
usapan. Pero wala man akong tinanggap. My golly.
Masyadong technical siya. Na-notify na siya in open court.
yan ang tinatawag na technicalities, ba.
We shall take Secs. 4 and 5 altogether. These are the
more important provisions in this Rule:
Sec. 4. Appearance of parties. - It shall be the duty of
the parties and their counsel to appear at the pre-trial.
The non-appearance of a party may be excused only if
a valid cause is shown therefor or if a representative
shall appear in his behalf fully authorized in writing to
enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and of
documents. (n)
Sec. 5. Effect of failure to appear. - The failure of the
plaintiff to appear when so required pursuant to the
next preceding section shall be cause for dismissal of
the action. The dismissal shall be with prejudice, unless
otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the
plaintiff to present his evidence ex parte and the court
to render judgment on the basis thereof. (2a, R20)
During the pre-trial, it is the duty of the parties and
their counsel to appear for pre-trial. Suppose the lawyer
appears and the parties did not. Can we proceed? The
general rule is no. Kasama dapat ang client. Normally,
appearance by lawyer is deemed appearance by party.
Except in a pre-trial conference. Why? Because of Sec. 2, the
possibility of amicable settlement. The lawyers have no
authority to settle. Only the clients. Example, ang plaintiff
nag-demanda. P5M with interest. Pagdating sa pre-trial, the
defendant offers to pay the principal amount but asks that the
interests be paid by him in installments for 2 years. Kung
puwede pa nga, yung interest, i-condone na lang yung
kalahati. Sasabihin ba ng abogado, Okay. Call. That is not
allowed. The lawyer cannot enter into a settlement because it
is beyond his authority. Only the party can do that. That is
why he is required to be around.
On the other hand, the non-appearance of a party
may be excused only (mandatory, no) if a valid cause is
shown therefor. Like for instance, he got sick at the last
minute. Or, if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to
submit to alternative modes, xxx. Kailangan ba literal?
Halimbawa, he is going abroad and the trip cannot be
postponed. So, he will authorize somebody in writing. I hereby
authorize Mr. X to represent me during the pre-trial. Parang
special power of attorney.
Where party is a corporation
Suppose the plaintiff or defendant is a corporation.
Who will appear in court? Who will be present in the trial? The
president, or general manager, chairman of the board.
Puwede pero dapat may board resolution. Why? Because
under the corporation law, only the board of directors have
the power to enter into a compromise. No corporate officer,
no matter how high he is, has the authority to enter into an
amicable settlement. Only the board of directors. Hindi
naman kailangan lahat ng members ng board. The board
can pass a resolution that they are authorizing the president or
the branch manager of Davao City, or one of our officers to
enter into a compromise. So, any person may be present
during the pre-trial to represent the corporation provided he
has been duly authorized by virtue of a board resolution issued
by the board of directors.
So, under Sec. 4, it is the duty of the parties and their
counsel to appear at the pre-trial. It is not only the duty of the
lawyer but the parties are required because of Sec. 4. The first
purpose of a pre-trial is to consider the possibility of amicable
settlement or of a submission to alternative modes of dispute
resolution. And a lawyer has no authority to enter into
amicable settlement that’s why the law requires the presence
of parties. Except when the lawyer or another person has
special written authority of the party authorizing him to enter
into an amicable settlement. Parang power of attorney.
And Sec. 5 gives us the sanction. What happens if
the plaintiff fails to appear. It could be a ground for the
dismissal of his case. With prejudice. That is the same sanction
in Rule 17, Sec. 3 when plaintiff fails to appear in court for the
presentation of his evidence. It can also be dismissed with
prejudice.
If it is the defendant who fails to appear without
reason, the law says it shall be a cause to allow the plaintiff to
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present evidence ex parte and the court to render judgment
on the basis thereof. It is similar to a default judgment.
Because in a default judgment, judgment can be rendered
based on the plaintiff’s claim without anymore requiring
plaintiff to present evidence. Or the court in its discretion can
require plaintiff to present evidence.
In failure to appear, there must be a presentation of
evidence ex parte. It has the same effect as a default
judgment. How can a defendant win the case when only the
plaintiff will be heard? And as I said, the new rule does not use
anymore the word default in pre-trial because the language
of the previous rule is if the defendant fails to appear during
the pre-trial, he can be considered as in default. Actually, he
cannot be in default because he filed an answer. Kaya
considered as in default. But I noticed that under the new
rules even the word considered as in default has been
eliminated. In order to avoid really any confusion between
Rule 18 an Rule 9 although the effect is almost the same. It
shall be a cause to allow plaintiff to present his evidence ex
parte and the court to render judgment on the basis thereof.
We will go to some cases on pre-trial which are still
valid although these cases were decided under the previous
rule. The rulings have not been affected by any of the
changes introduced by the 1997 Rules.
DBP vs. CA
169 SCRA 409
The defendant failed to appear in
the pre-trial. So, the court allowed plaintiff
to present his evidence. The plaintiff
presented his evidence ex parte.
Meanwhile, the defendant filed a motion
for reconsideration explaining why he failed
to appear. The court was of the view that
defendant’s motion was meritorious. There
was a valid reason why he failed to appear.
So, the court set aside the order allowing
the plaintiff to present his evidence ex parte
and directed that the case be set for pre-
trial again. Did the court act correctly?
The SC said the procedure is
wrong. When a case has left the pre-trial
stage, hindi na babalik yan. Because the
purpose of a pre-trial is to expedite. The
procedure adopted by the trial court has
actually delayed the case. What should
have been the correct procedure? The trial
court should now allow the defendant to
participate in the trial to question the
plaintiff’s witnesses. And the case will
proceed. Because you lost your standing,
eh. That should have been the procedure.
Not hold a second pre-trial.
Such reconsideration of the order
of the court did not revert the action in the
pre-trial stage or authorized much less
rendered mandatory the second pre-trial.
The scheduling of a second pre-trial after
plaintiff had finished presenting his
evidence frustrated rather than advanced
the purpose of pre-trials of abbreviating
trial. The correct course would have been
to proceed with the trial, in fact already
underway, allowing defendant to cross
examine the plaintiff’s witnesses and
thereafter to offer their evidence.
The ruling in the case of DBP was modified in the case
of:
YOUNG vs. CA
204 SCRA 584
Going back to the DBP case. The
pre-trial has been terminated and there was
a motion for reconsideration by the
defendant and the court reconsidered.
Shall we go to the second pre-trial? No. As
in DBP, tuloy ang kaso. But according to
the case of Young, if after the defendant is
allowed to participate, if the plaintiff will
agree to go back to the pre-trial and both
parties will request the court to conduct a
second pre-trial because they might be
able to settle amicably, then that is the
exception. If the parties themselves will ask
for a second pre-trial.
The SC said: The pre-trial stage is
completed after plaintiff’s complaint is
ordered dismissed or the plaintiff was
allowed to present evidence ex parte under
Sec. 5 because of non-appearance and
that an order lifting it does not revert to its
pre-trial stage or authorize much less a
second pre-trial unless the parties have
voluntarily agreed that the case be set
anew for pre-trial. This fact brings the case
out of the doctrine enunciated in the DBP
case and is an exception thereto. Neither
the rules nor the doctrine bars the parties
from agreeing to hold a pre-trial and
effectively accomplish its objective.
JUNGCO vs. CA
179 SCRA 213
Is there a difference between a
defendant declared in default under Rule 9
and a defendant who failed to attend a
pre-trial conference under Rule 18? If a
defendant is declared in default under Rule
9, the court will render judgment for the
plaintiff based on his complaint or in the
court’s discretion, the court will direct the
plaintiff to present his evidence. In Rule 18,
if the defendant fails to appear in the pre-
trial, the court will allow the plaintiff to
present his evidence ex parte. May
similarity.
But take note that the court will
render judgment based on the plaintiff’s
evidence is not allowed under Rule 18. That
is allowed under Rule 9 but not under Rule
18. Hindi puwedeng derecho ang decision.
And the court explained? Why is a party
declared in default under Rule 9? For failure
to file an answer. Under Rule 18, the
sanction is for failure to appear during the
pre-trial. But definitely sabi ng SC, the
defendant has already filed an answer
where he has already raised his affirmative
and negative defenses.
And the second most important
distinction is this: If you are declared in
default, what is your remedy? You file a
motion to lift the order of default on the
ground that you are a victim of fraud,
accident, mistake or excusable negligence
(FAME) and you have a meritorious
defense. Suppose a defendant failed to
appear in the pre-trial under Rule 18, and
because of that the court allowed the
plaintiff to present his evidence ex parte
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 and the defendant would like to explain
why he failed to appear. Maybe he got
sick, or met an accident on the way to
court. What kind of motion will he file?
What is his remedy under Sec. 5? Should he
file also a motion to lift the order of default?
No. The motion is simply a motion for
reconsideration where he will cite the
reason why he failed to appear during the
pre-trial. Does he have to cite a good and
meritorious defense? No. There is no need
to convince the court that he has a good
and meritorious defense. Why? Because
he already filed an answer and his defenses
are already stated there. Unlike in Rule 9,
wala kang answer, eh. That is the
difference between the remedy of a
defaulted defendant and the remedy of a
defendant under Rule 18, Sec. 5 who fails to
appear in a pre-trial.
Pre-trial brief
Sec. 6. Pre-trial brief. - The parties shall file with the court
and serve on the adverse party, in such manner as shall
ensure their receipt thereof at least three (3) days
before the date of the pre-trial, their respective pre-trial
briefs which shall contain, among others:
a) A statement of their willingness to enter into
amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
b) A summary of admitted facts and proposed
stipulation of facts;
c) The issues to be tried or resolved;
d) The documents or exhibits to be presented, stating
the purpose thereof;
e) A manifestation of their having availed or their
intention to avail themselves of discovery procedures
or referral to commissioners; and
f) The number and names of witnesses, and the
substance of their respective testimonies.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial. (n)
This Sec. 6 is taken from SC Circular 1-89 issued on
January 19, 1989. The parties through their lawyers are now
obliged to file in court copy furnish each other at least three
days before the date of the pre-trial the so-called pre-trial
brief. So, pre-trial brief for the plaintiff. Pre-trial brief for the
defendant. More or less a summary of what they say in their
pleading. A summary of admitted facts, proposed stipulation
of facts, the issues to be resolved. And you state there
whether you are willing to enter into amicable settlement or
not. Then what are the documents or exhibits that you will
present. How many witnesses are you going to present?
Meron ng dress rehearsal. Preview. Synopsis. Then (e) A
manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to
commissioners. Ano ba itong discovery procedures? They are
found in Rules 23-29. We will come to that later. Referral to
commissioners is found in Rule 32. That is also mentioned in
Sec. 2 (f) of this rule. So, meron ng synopsis. Lawyers are
mandated to file a pre-trial brief at least three days before the
date of the pre-trial. Copy furnish each other.
What happens if a party fails to file his pre-trial brief?
The sanction is found in the last paragraph. It shall have the
same effect as failure to appear in a pre-trial. Mabigat, no?
Meaning, if you are the plaintiff, your case will be dismissed. If
you are the defendant, the plaintiff will be allowed to present
his evidence ex parte and judgment will be rendered against
you.
What are the instances where a complaint may be
ordered dismissed because of the fault of the plaintiff? There
are three:
1. (Rule 17) He fails to appear
during the trial for the
presentation of his evidence in
chief to prove his cause of
action.
2. (Rule 18) He fails to appear
during the pre-trial.
3. (Sec. 6, R18) Failure to file a
pre-trial brief.
When may the court order the presentation of
evidence ex parte against the defendant? There are three:
1. (Rule 9) When he is
declared in default for failure
to answer
2. (Rule 18, Sec. 5) When he
fails to appear during a pre-
trial conference
3. (Rule 18, Sec. 6) When he
fails to file a pre-trial brief
Sec. 7. Record of pre-trial. - The proceedings in the pre-
trial shall be recorded. Upon the termination thereof,
the court shall issue an order which shall recite in detail
the matters taken up in the conference, the action
taken thereon, the amendments allowed to the
pleadings, and the agreements or admissions made by
the parties as to any of the matters considered. Should
the action proceed to trial, the order shall explicitly
define and limit the issues to be tried. The contents of
the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest
injustice. (5a, R20)
The proceedings in the pre-trial shall be recorded.
Actually, in a pre-trial, the atmosphere here is supposed to be
informal yet it is part of the proceedings. Everything has to be
recorded. Trial is usually done inside the courtroom where we
governed by formal rules. In a pre-trial, the judge conducts it
in his chamber. The purpose is settlement so hindi dapat
formal ang atmosphere. The lawyers are there, the parties
and the judge. Parties open up. But they are on record. Sec.
7 says after the pre-trial is terminated, the court shall issue what
is known a s a pre-trial order which would recite all matters
which have decided in the pre-trial. All matters mentioned in
Sec. 2.
The last part of Sec. 7 says: Should the action
proceed to trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to
prevent manifest injustice. That is a very innocent looking
sentence but the effect is terrible. Example: You file a
complaint. I file my answer. Based on the complaint and the
answer, there are 6 or 7 issues to be resolved. During the trial
the court will ask the parties, what are the issues to be
resolved? 6 or 7. Di ba puwedeng bawasan natin? Ano ba
ang depensa mo? Forgery, fraud, etc. Are you sure? Pirma
ko bitaw yan, Judge. So, wala na yang forgery. Ganito.
Ganito. Ultimately, isa na lang. The only issue is whether the
obligation is paid. Sa pleadings, 6 or 7 issues. Sa pre-trial, isa
na lang. During the trial, you follow the pre-trial order.
Kalimutan mo na yung nasa pleadings. So, ang effect ng pre-
trial is that it supersedes all other pleadings. All the pleadings
are deemed superseded. Denials in the pleadings may be
converted into admission because of the pre-trial order.
Nakita nyo ang epekto? Mabigat, no? Because the law says
The contents of the order shall control the subsequent course
of the action, unless modified before trial to prevent manifest
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injustice. Forget the complaint. Forget the answer. Ang pre-
trial order will prevail.
That is why in the case of DBP vs. CA where I said that
the SC lamented the failure of judges to observe Rule 18
strictly. The SC cited this. If every judge will issue a pre-trial
order (admitted issues, denied issues), pagdating ng trial, the
judge will just look at the pre-trial order. He does not have to
look at the complaint and the answer. He just has to follow
that because the law says it shall control the subsequent
course of the action. So, if this is followed, there would be
declogging of cases in court.
Here is an instance where we see how terrible the
effect of this provision is. Plaintiff filed a case against
defendant arising from vehicular collision. Plaintiff wants to
hold defendant liable for damages. The defendant filed an
answer with a counterclaim. He denied negligence and threw
the blame on plaintiff. So, he also asked for damages. So,
both are claiming for damages. Sa pre-trial, the court asked:
What are the issues to be tried? Defendant stated this: 1) Is
the plaintiff liable to the defendant for compensatory
damages on his counterclaim? 2) Is the plaintiff liable to the
defendant for moral damages on his counterclaim? 3) Is the
plaintiff liable to defendant for attorney’s fees? These are the
issues. Siguro hindi nakinig yung counsel ng plaintiff. Agreed?
Oo. Pagdating ng trial, plaintiff will now present his evidence.
Siya man ang nagademanda. Sabi ng defendant: What is
your purpose? Plaintiff: To prove defendant is liable to
plaintiff. That is not the issue. You look at the pre-trial order.
The issue is whether plaintiff is liable to defendant. Nawala
ang liability ng defendant. Liable na hinuon ang plaintiff. But
that is what the law says. There is nothing in the order about
liability of defendant to plaintiff. Puro liability ng plaintiff to
defendant on the counterclaim. So, naisahan ang plaintiff.
Practically the complaint disappeared because of the pre-trial
order. That is technically correct. Why did that happen?
Because the plaintiff’s lawyer was not attentive. Binale-wala
niya ang pre-trial. But there is a remedy. The last phrase is
unless modified before trial to prevent manifest injustice. So, if
you are not careful, your opponent can put one over you.
That is how important a pre-trial is.
End of Rule 18
Rule 19
INTERVENTION
Rule 19, the chapter on intervention, used to be in
Rule 12 on Bill of Particulars. Under the 1964 Revised Rules of
Court, Rule 12 was entitled Bill of Particulars and Intervention.
Under the present rules, ini-split sila. Ang naiwan sa Rule 12, Bill
of Particulars. The rule on Intervention has been moved to
Rule 19. So, their marriage was annulled under the 1997 Rules.
Except for a few provisions, the concept is still the same.
Sec. 1. Who may intervene. - A person who has a legal
interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court
or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor’s
rights may be fully protected in a separate proceeding.
(2[a], [b]a, R12)
Let us connect this with something we have already
learned. B borrowed money from A. A - creditor, B - debtor.
But when B borrowed money from A, C acted as surety. When
the account fell due, B did not pay A. Can A sue C only to
collect the entire loan? Yes, because the debtor is not an
indispensable party. But C can drag into the picture B. How?
By filing a third-party complaint. For contribution, indemnity,
subrogation or any other relief. But if you will notice in that
situation, it is the defendant (C) who dragged B. The initiative
came from a party to the action. Para bang you are forcibly
invited to the case. Kahit na ayaw mo, isasali ka. Yan ang
third-party complaint.
Intervenor
Suppose, when A filed the case against C, C did not
file a third-party complaint. Puwede man yan, di ba?
Pagmatalo ako, saka ko na idemanda si B. So, C never
bothered to file a third-party complaint. But B, who is the
debtor, is interested. Gusto kong sumali. Practically, kung
matalo si C, file-an man din ako ng kaso later, kaya sali na
ako. Meaning, he would like to participate in the case. Kaya
lang, he is not invited. Is there a way for B to come in? Yes.
File siya ng motion for intervention. So, hindi siya imbitado,
mag-gate crash na lang siya. That is the concept of
intervention. It is a procedure by which a third person who is
not a party to the case would make himself a party. Ang
tawag sa kanya ay intervenor.
Grounds for intervention
What are the grounds for intervention? You cannot
just intervene in any case na hindi ka naman kasali. Hindi
lahat puwedeng sumali. And the grounds are stated in Sec. 1.
There are actually four possible grounds for intervention.
1. The intervenor has a legal interest in the
matter in litigation; or
2. He has a legal interest in the success of
either of the parties; or
3. He has a legal interest against both; or
4. He is so situated as to be adversely
affected by a distribution or other
disposition of property in the custody of
the court or of an officer thereof.
1. The intervenor has a legal interest in the matter in
litigation.
Based on decided case: A died and is survived by
five children. The court, however, appointed X as
administrator of the estate of A. Under the law, a legal
representative of the estate of a deceased person is the
administrator or the executor. He is the one who is supposed
to file cases against people to collect the accounts of the
deceased. Siya ang manager, eh. Now, there was a piece of
property which belongs to the deceased but was occupied
by another person. So, the administrator filed a case to
recover the property to benefit the estate. The children of the
deceased moved to intervene. They would like to enter the
picture and join the case. Is there a ground for intervention.
The court said yes because of the first ground. The
intervenor has a legal interest in the matter in litigation. Why?
Because the subject matter under litigation is a property which
is owned by their father and that can be recovered by the
estate and it will redound to the benefit of the heirs because
they will inherit the property.
Actual, existing and present vs.
Expectant, inchoate and contingent
Suppose, A filed a case against B to recover the
possession of a valuable property. The children of A moved to
intervene because according to them, they have a legal
interest in the subject matter of the case. They would like to
join their father. Bakit? Because if our father will win the case,
that will be for our benefit in the future. Because someday, we
will inherit that property. Therefore, since we are bound to
inherit the property in the future, we have a legal interest in the
subject matter in litigation. If you are the judge, will you allow
the intervention?
Page 156 of 296

The SC said: The legal interest contemplated by law
is interest which is actual, existing and present. It does not refer
to an interest which is expectant, inchoate or contingent.
So, what is the difference between the two examples
I gave you? In the first case, the heirs have a legal interest
because their father had already died. From the moment their
father died, legally speaking, they are already the owners of
the property of the deceased. As distinguished from the
second example, buhay pa ang tatay nila. Pagmanalo ang
tatay namin, mapasaamin rin naman yung lote. That is true.
Pero how would you know that your father will die ahead of
you? Paano kung ikaw ang unang mamatay? So, what
interest are you talking about? So, that interest is contingent,
expectant and inchoate. That is not the interest
contemplated by the law on intervention.
2. He has a legal interest in the success of either of
the parties.
Meaning, I am interested in the plaintiff winning. Or,
in the defendant winning. So, sali ako, magkampi ako sa isa
sa kanila. In whose side will I be joining? Sa surety. Pagnanalo
ang surety, ligtas na rin ako. Pagnatalo ang surety, kubrahin
niya yan sa akin, di ba? So, I am interested in the success of
the defendant.
3. He has a legal interest against both.
Meaning, I am not siding with the plaintiff. I am not
siding with the defendant. I am fighting both of you. A filed a
case against B to recover a piece of land. According to A he
is the rightful owner. According to B, he is the rightful owner.
Papasok ako ngayon. Ako ang owner, hindi kayong dalawa.
So, away tayong tatlo dito. So, it becomes a three-cornered
fight.
4. He is so situated as to be adversely affected by
a distribution or other disposition of property in the
custody of the court or of an officer thereof.
Lahat ng appliances ko, pinahiram ko kay Pedro. TV
set, refrigerator, etc. Si Pedro pala, maraming utang. Pinaylan
siya ng kaso ni Juan. Juan was able to get a court order to
attach all the properties in the house of Pedro. Niyari yung
mga appliances ko. Hindi man kanya yan. Akin yan.
Meaning, my properties where made to answer for an
obligation which is not mine. So, I want to prove that I am the
real owner of the properties being attached. So, I will move to
intervene so that my properties will be released to me.
Because I will be adversely affected by distribution of the
property which is under the custody of the court.
Is intervention a right on the part of the intervenor?
Or is it a matter of judicial discretion? In the first place, you
cannot just intervene. You must file a motion. Leave of court is
necessary. Just like in a third-party complaint. Is intervention a
matter of right or is it a matter of judicial discretion. The last
sentence says: xxx The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the
intervenor’s rights may be fully protected in a separate
proceeding. So, it is a matter of judicial discretion. The court
will have to determine whether you will be allowed or not.
And there are two factors which the court should consider. (1)
whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties; and (2)
whether or not the intervenor’s rights may be fully protected in
a separate proceeding. Example, the case is between A and
B. And the trial has already progressed to the point that halos
matapos na. And then here comes X. He moves to intervene.
We will have to start all over again. My golly. It will delay the
rights of the original parties. And moreover, the court has to
answer. Suppose I will not grant the intervention, can this third
person file another case in the future against the parties? If
the answer is yes, even if he will not intervene, he can still file a
case in the future to protect his interest, then I will deny the
intervention. These are the primary factors that the court
should consider.
Now, a question has been asked in the bar: When is
an intervention a matter of right? Meaning, by way of
exception ba. Because the general rule is that intervention is a
matter of right. But there are instances where it is a matter of
right. The court has no choice but to allow the intervention.
And the answer is yes. According to the examiner who asked
the question, intervention is a matter of right if the proposed
intervenor turns out to be an indispensable party to the case.
Well, you know the difference between an indispensable and
a necessary party. If an indispensable party is omitted, the
case anyway cannot go on. The case cannot go on without
him. So, if he is intevening, you cannot prevent him. That was
his answer. I believe that that is correct.
But I think there is a second instance where the
intervention becomes a matter of right on the part of the
intervenor. By direct provision of law. What is that? Go back
to Rule 3, Sec. 12.
Sec. 1. Class suit. - When the subject matter of the
controversy is one of common or general interest to
many persons so numerous that it is impracticable to
join all as parties, a number of them which the court
finds to be sufficiently numerous and representative as
to fully protect the interests of all concerned may sue or
defend for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual
interest. (12a)
You noticed that? Meaning, in a class suit, the
people suing are suing in behalf of everybody. But the law
says even if you are represented, you have the right to
intervene insofar as your personal individual interest is
concerned. It seems that that is another instance where
intervention becomes a matter of right.
Sec. 2. Time to intervene. - The motion to intervene may
be filed at any time before rendition of judgment by the
trial court. A copy of the pleadings-in-intervention shall
be attached to the motion and served on the original
parties.(n)
May a third-party intervene when there is already a
decision rendered in the case? No more. The time to
intervene is at any time before rendition of judgment by the
trial court. So, if the trial is over and there is already a
judgment, intervention comes too late.
How do you intervene? The law says xxx A copy of
the pleadings-in-intervention shall be attached to the motion
and served on the original parties. This is a new provision.
Under the old law, first you move to intervene. Motion muna.
If your motion is granted, you file your pleading-in-intervention.
The present procedure is when you file your motion to
intervene, it must already accompany the pleading-in-
intervention. Hindi na yung motion first, then pleading later.
Sabay na. That is an implementation of Rule 15, Sec. 9 which is
also a new provision.
Sec. 9. Motion for leave. - A motion for leave to file a
pleading or motion shall be accompanied by the
pleading or motion sought to be admitted. (n)
So, a good example of this is a motion to intervene
where it must already be accompanied by the pleading-in-
intervention.
Sec. 3. Pleadings-in-intervention. - The intervenor shall
file a complaint-in-intervention if he asserts a claim
against either or all of the original parties, or an answer-
Page 157 of 296
 in-intervention if he unites with the defending party in
resisting a claim against the latter. (2[c]a, R12)
Well, you know the grounds for intervention. He has
an interest in the success of either of the parties or an interest
against both. Either you are joining the plaintiff or joining the
defendant or you are fighting both of them. We already
discussed that. So, if you are uniting with the plaintiff or you
are fighting both, you must file a complaint-in-intervention. On
the other hand, if you are uniting with the defendant just like in
the example I gave you last night where the principal debtor
would like to intervene to side with the surety. Then you file an
answer-in-intervention. You will also answer the complaint of
the plaintiff.
If you will notice, we touched this complaint-in-
intervention under Rule 6, Sec. 2. In fact, I asked this in your
exam. What are the pleadings allowed by the rules?
Sec. 2. Pleadings allowed. - The claims of a party are
asserted in a complaint, counterclaim, cross-claim,
third (fourth, etc.)-party complaint, or complaint-in-
intervention.
xxx
So, a complaint-in-intervention is where a third person
will enter into the picture to file a case against the original
parties or he will join either the original plaintiff or the original
defendant.
Sec. 4. Answer to complaint-in-intervention. - The
answer to the complaint-in-intervention shall be filed
within fifteen (15) days from the notice of the order
admitting the same, unless a different period is fixed by
the court. (2[d]a, R12)
So, if there is a complaint-in-intervention, just like any
other complaint, it must be answered by the defendant within
15 days unless a different period is fixed by the court. Suppose
the complaint-in-intervention was already answered and it is
amended by the intervenor? What is the period to answer an
amended complaint-in-intervention? Let us try to connect this
with Rule 11, Sec. 3.
Sec. 3. Answer to amended complaint. - Where the
plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within fifteen
(15) days after being served with a copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended complaint within
ten(10) days from notice of the order admitting the
same. An answer earlier filed may serve as the answer
to the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.) party complaint, and
amended complaint-in-intervention. (3a)
So, this also applies to an amended complaint-in-
intervention. It is either 10 or 15 days under Rule 11, Sec. 3.
Where original complaint is dismissed
Now, before we leave this Rule, here is one question:
Suppose A filed a complaint against B. X moved to intervene
and the court allowed him. And then, the complaint of A
against B is dismissed or withdrawn by A. What happens to the
intervention? Can the intervention remain alive when the main
action is already dismissed? I will cite SC decisions which seem
to support both views that the complaint-in-intervention may
or may not remain pending.
BIG COUNTRY RANCH CORP. vs. CA
227 SCRA 161
The SC, in describing the nature of
intervention said: An intervention is merely
collateral or accessory or ancillary to the
principal action and not an independent
proceeding. It is an interlocutory
proceeding dependent on or subsidiary to
the case between the original parties.
Where the main action ceases to exist,
there is no pending proceeding where the
intervention may be based.
That supports the view that an intervention cannot
remain pending where the principal action has been dismissed
or withdrawn.
METROBANK vs. PRESIDING JUDGE, RTC
MANILA, BR. 39
189 SCRA 820
The simple fact that the trial court
properly dismissed plaintiff’s action does not
require dismissal of the action of the
intervenor. An intervenor has the right to
claim the benefit of the original suit and to
prosecute it to judgment. The right cannot
be defeated with the dismissal of the suit by
the plaintiff. Where a complaint-in-
intervention was filed before plaintiff’s
action has been expressly dismissed, the
intervenor’s complaint was not subject to
dismissal on the ground that no action was
pending.
So, there seems to be a conflict here. Both answers
appear to be correct. To my mind the first case is the general
rule. Ancillary lang ang intervention. If the creditor filed a
case against the surety and the debtor intervened to side with
the surety in defending himself and the complaint is dismissed,
panalo ka na. Both the surety and the intervenor had won.
So, there is no need for the intervention. In that situation, the
case of BIG COUNTRY RANCH applies. But there are cases also
where it would be unfair to consider the intervention as
dismissed. Example, A filed a case against B. They are
quarreling over a piece of land. Both claim that they own the
land. And here comes X claiming that he is the owner. So, it is
a three-cornered fight. Tapos, aatras si A. Tuloy ang fight
against B and X. In other words, why will you dismiss the case
na iba man ang claim ko sa kanilang dalawa. The
intervention is completely independent from your case. So,
this is one instance where you cannot say that when the
principal action is dead, the intervention shall also die. So, to
my mind, both answers are correct depending on the
situation.
End of Rule 19
Rule 20
CALENDAR OF CASES
Sec. 1. Calendar of cases. - The clerk of court, under
the direct supervision of the judge, shall keep a
calendar of cases for pre-trial, for trial, those whose
trials were adjourned or postponed, and those with
motions to set for hearing. Preference shall be given to
habeas corpus cases, election cases, special civil
actions, and those so required by law. (1[a], R22)
This is addressed to the clerk of court. Calendaring,
ba. The clerk of court should know what cases will be set for
Page 158 of 296
pre-trial. Or, for trial. Motions that would be set for hearing
based on the notices of the parties.
Then the clerk of court should give preference to
cases which are urgent. Habeas corpus, election cases,
special civil actions and those so required by law. Like criminal
cases which should take precedence over civil cases, as a
general rule. Sa criminal naman, those where the accused is
detained should be given preference over those who are out
on bail. So, it is matter of priority. So, there is nothing much in
Sec. 1.
Sec. 2. Assignment of cases. - The assignment of cases
to the different branches of a court shall be done
exclusively by raffle. The assignment shall be done in
open session of which adequate notice shall be given
so as to afford interested parties the opportunity to be
present. (7a, R22)
There is no problem in some areas where there is only
one RTC. But that is very rare. In Davao City alone, there are
12 branches in the RTC. Sa MTC, 7 yan. So, how do you
determine kung saan ka mahulog? I-raffle yan. It depends on
the policy. In Davao, it is every Tuesday in the afternoon.
End of Rule 20.
Rule 21
SUBPOENA
Sec. 1. Subpoena and subpoena duces tecum. -
Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or the trial of
an action,or at any investigation conducted by
competent authority, or for the taking of his deposition.
It may also require him to bring with him any books,
documents or other things under his control, in which
case it is called a subpoena duces tecum. (1a, R23)
Under the law, there are 2 types of subpoena. The
so-called subpoena testificandum and the second one is
subpoena duces tecum. When we say subpoena, it generally
refers to the first one.
What is subpoena testificandum? It is a process
directed to a person requiring him to attend and to testify at
the hearing or trial of an action, or at any investigation
conducted by competent authority, or for the taking of his
deposition. And mind you, Rule 21 applies also to criminal
cases. If you look at the rules on Criminal Procedure, there is
no rule on subpoena. So, Rule 21 applies to both criminal and
civil cases. Subpoena is available not only for trial in court but
also to attend investigations by quasi-judicial bodies. Example,
by the labor arbiter of the NLRC, or the SEC. Or, for the taking
of his deposition. We will skip that for the meantime. That will
become clearer when we reach Rule 23 on depositions.
What is a subpoena duces tecum? It is a process
directed to a person where it requires him to bring with him
any books, documents or other things under his control. Sa
testificandum, we are more interested in what you say. Eto
naman, yung production of books, documents or things which
are material to the case.
Sec. 2. By whom issued. - The subpoena may be
issued by-
a) the court before whom the witness is required to
attend;
b) the court of the place where the deposition is to be
taken;
c) the officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
d) any Justice of the Supreme Court or of the
Court of Appeals in any case or investigation pending
within the Philippines.
We will stop there first. (a) The court before whom
the witness is required to attend. If I am trying the case, I have
the authority to issue subpoena for witnesses. (b) The court of
the place where the deposition is to be taken. That will be
clearer when we reach Rule 23. (c) the officer or body
authorized by law to do so in connection with investigations
conducted by said officer or body. Like the Labor arbiter, or
any other office authorized to conduct an investigation. (d)
Or any Justice of the Supreme Court or of the Court of Appeals
in any case or investigation pending within the Philippines. So,
you can the SC justice to issue a subpoena in connection with
a case pending within the Philippines. Hindi kailangang entire
SC. Kahit isang justice lang of the CA or the SC.
When application for a subpoena to a
prisoner is made, the judge or officer shall examine and
study carefully such application to determine whether
the same is made for a valid purpose.
If the witness is a prisoner, the judge who will issue the
subpoena must be very careful. Is it really necessary that this
prisoner will testify in court? Pag-isubpoena ko yan, that would
be an opportunity for him to escape. They can be
subpoenaed but the judge has to be very careful.
No prisoner sentenced to death,
reclusion perpetua or life imprisonment and who is
confined in any penal institution shall be brought
outside the said penal institution for appearance or
attendance in any court unless authorized by the
Supreme Court.(2a, R23)
This is worse. You are not only a detention prisoner
convicted of a light offense, you are sentenced to death. You
are in the death row. Reclusion perpetua or life imprisonment.
Of course, you are confined in an institution. You are cannot
be brought out of the penal institution for appearance or
attendance in any court unless authorized by the SC. mas
mabigat ito. Because the risk of escape is higher.
I think this last paragraph was influenced by the
controversy last year about Congressman Nicanor de Guzman
who was convicted for illegal possession. He was subpoenaed
to appear in a trial in Nueva Ecija, his home province. And he
was brought there. Hindi naman siya nakawala. But actually,
it was an opportunity for him to enjoy the fiesta, tulog sa
bahay. It really generated a lot of controversy. He was
already convicted of perpetua for gun running. The DOJ was
being blamed. Even the DOJ and the DILG Secretary have no
power. So, this provision is inserted to authorize the prisoner
under the death row to be brought out to testify.
Sec. 3. Form and contents. - A subpoena shall state the
name of the court and the title of the action or
investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena
duces tecum, it shall also contain a reasonable
description of the books, documents or things
demanded which must appear to the court prima facie
relevant. (3a, R23)
That is very clear.
Sec. 4. Quashing a subpoena. - The court may quash a
subpoena duces tecum upon motion promptly made
and, in any event, at or before the time specified
therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not
appear, or if the person in whose behalf the subpoena
is issued fails to advance the reasonable cost of the
production thereof.
Page 159 of 296
 What are the grounds to quash a subpoena duces
tecum? Meaning, to invalidate it. A party may file or the
person directed to comply with the subpoena duces tecum
may be allowed by motion at any time, at or before the time
specified therein to file a motion to quash, to invalidate it, to
recall a subpoena duces tecum on three possible grounds:
(1) if it unreasonable or oppressive
It is unreasonable or oppressive if it does not comply
with the first section. If it does not contain a reasonable
description of the books, documents or things which are
demanded. You are a bank, padalhan kita ng subpoena
duces tecum to produce in court all your ledgers and all your
documents from 1990 to 1998. naloko na. Practically, you are
requiring the bank to hire a dump truck.
Like yung sa PIRMA petition. Di ba na-dismiss na yung
petition to amend the constitution? Tatlong truck pala yung
folders of the 12 million signature doon.
(2) the relevancy of the books, documents or things does not
appear.
There seems to be no connection between the
subject of the case and the document sought to be
produced. Example, in a collection case. A files a case to
collect a loan against B. Subpoena duces tecum. Please
bring to court your birth certificate, marriage contract, etc.
Anong pakialam nito sa collection case? Irrelevant, nga.
(3) if the person in whose behalf the
subpoena is issued fails to advance the
reasonable cost of the production
thereof.
This is very common where a company or a bank is
required to bring some documents sa bank. The bank is not
involved in the case pero some of its documents are needed
by the court. Alam mo, if the document you are asking is an
old one, it is very troublesome because that bank or company
has to look for that file. Bodega na. Nasa archive na. In
effect, one employee has to be pulled out for this job. Then,
during the day of the trial, papuntahin mo pa yan. So,
kailangan may service fee because it involves some
discomfort. Actually, I can file a motion to quash the
subpoena duces tecum. Utos ka ng utos. Hindi ka naman
nagpasahe sa akin. Absent pa ako sa trabaho ko. That is a
ground.
The
court may quash a
subpoena ad
testificandum on the
ground that the witness
is not bound thereby.
In either case, the
subpoena may be
quashed on the
ground that the witness
fees and kilometrage
allowed by these Rules
were not tendered
when the subpoena
was served. (4a, R23)
The ground to quash a subpoena testificandum is
when a witness is not bound thereby. Example is Sec. 10 of this
rule. I receive a subpoena requiring me to appear in Manila
to testify. Paano ngayon ang pamasahe? Wala ka namang
sinasabi? Ako pa ang gagasta? Meaning, there is a limit to
subpoena. And under the new law, the limit is 100 kilometers.
You cannot compel me to travel more than 100 kilometers.
Kahit na magbayad ka pa. Even if you pay. Because under
Sec. 10, a witness who is required to attend a hearing more
than 100 kilometers from his residence is no longer bound. If it
is 100 or less, he is bound. But, you must tender also what we
call witness fees. Meaning, yung appearance fee ba. The
trouble of going there and the kilometrage allowed by these
rules. Yung pamasahe. I think this is found in Rule 141.
Sec. 5. Subpoena for depositions. - Proof of service of
a notice to take a deposition, as provided in sections
15 and 25 of Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the
court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person without
an order of the court. (5a, R23)
We will skip this for the meantime because we will
take this when we reach depositions.
Sec. 6. Service. - Service of a subpoena shall be made
in the same manner as personal or substituted service
of summons. The original shall be exhibited and a copy
thereof delivered to the person on whom it is served,
tendering to him the fees for one day’s attendance
and the kilometrage allowed by these Rules, except
that, when a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency
thereof, the tender need not be made. The service
must be made so as to allow the witness a reasonable
time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the
reasonable cost of producing books, documents or
things demanded shall also be tendered. (6a, R23)
****
Sec. 7. Personal appearance in court. - A person
present in court before a judicial officer may be
required to testify as if he were in attendance upon a
subpoena issued by such court or officer. (10, R23)
A person under subpoena is required to go to court.
He cannot refuse because he is bound. And we shall see in
the next 2 sections the consequences if one refuses to comply
with a subpoena. So, if you are not under subpoena, you are
not compelled to attend in court. For example, you are my
witness. Suppose I will have my case tried on Monday and I
will ask you to go to court on Monday. But you will not appear.
You cannot be blamed because you are not under subpoena.
Even if you made a personal promise or commitment that you
will appear in court, it is safer to require you to appear by
subpoena. Para sigurado.
Sec. 7 gives one instance when a person may be
compelled to testify even when he is not subpoenaed. A
person present in court before a judicial officer may be
required to testify as if he were in attendance upon a
subpoena issued by such court or officer. There is a case
tomorrow between A and B. During the trial, the lawyer will
call on his next witness X who happens to be around to simply
listen to the trial. X cannot refuse to take the witness stand.
Any person inside the courtroom can be compelled to testify
as if he were under a subpoena.
You will see the importance of this when you take up
the rule on evidence. Because there are some people na
gusto mong tawagin sa court but if you subpoena them, they
will be forewarned. So, the best way to do it is not to have the
witness subpoenaed but do something to see to it that he is
inside the courtroom. Para mabigla siya. This has happened
before. I wanted to call somebody to the witness stand.
Kaibigan ko and he is a manager for the company. The
trouble is he is on the other side. If I will have him
subpoenaed, naturally, he will prepare his answers. So, nung
magkita kami, I asked him. Punta ka sa court? Oo. Sigurado
ka? Oo. So, when I was asked to call my first witness, I called
him to take the witness stand. Wala siyang magawa.
Page 160 of 296
Because of Sec. 7. Meaning, trick him to go into the
courtroom.
Effect of failure to appear
What are the effects if a person under subpoena fails
to appear? There are 2 effects. Secs. 8 and 9.
Recalcitrant witness
Sec. 8. Compelling attendance. - In case of failure of a
witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of
the failure of the witness, may issue a warrant to the
sheriff of the province, or his deputy, to arrest the
witness and bring him before the court or officer where
his attendance is required, and the cost of such
warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his
failure to answer the subpoena was willful and without
just excuse. (11, R23)
Sec. 9. Contempt. - Failure by any person without
adequate cause to obey a subpoena served upon
him shall be deemed a contempt of the court from
which the subpoena is issued. If the subpoena was
not issued by a court, the disobedience thereto shall
be punished in accordance with the applicable law or
Rule. (12a, R23)
Under Sec. 8, the court can issue a warrant to arrest
the witness. Para kang criminal, no? Ang tawag niyan
recalcitrant witness. Or, you will be declared in contempt of
court. So, fine, imprisonment, etc. So, these are the
consequences for disobeying a subpoena or subpoena duces
tecum.
Exception:
100 km distance-limit
Sec. 10. Exceptions. - The provisions of
sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100)
kilometers from his residence to the place where he
is to testify by the ordinary course of travel, or to a
detention prisoner if no permission of the court in
which his case is pending was obtained. (9a, R23)
When is a witness not bound to comply with a
subpoena or subpoena duces tecum? If he resides more than
100 kms. from his residence to the place where he is to testify
by the ordinary course of travel. So, you cannot subpoena
somebody in Cagayan de Oro to come to Davao even if you
will pay for his fare. He cannot be declared in contempt of
court because he resides more than 100 kilometers away from
the place of trial.
Under the ‘64 Rules, the distance was only 50
kilometers. Ngayon, doubled. That is the area of
enforceability of a subpoena. From 50 to 100 kilometers. I
think the reason behind this is to harmonize this rule with that in
Criminal Procedure. In Criminal Procedure, it is 100 kilometers,
eh.
Right to secure attendance of witness
There was a case decided way back in 1967 by the
SC on constitutional law, the case of:
PEOPLE vs. MONTEJO
21 SCRA 722
The SC said: The 50 (now 100)
kilometer limitation applies only to civil
cases. It does not apply in criminal cases
especially when the person being
subpoenaed is a defense witness. Ako ang
accused and you are my witness and you
reside more than 100 kms. I will have you
subpoenaed to testify for me. The SC said
that it is allowed because it is the
constitutional right of an accused to have
compulsory process issued to secure the
attendance of witnesses in his behalf. The
constitutional right of the accused cannot
be limited under the Rules of Court.
This ruling was reiterated in another case:
KENIORGA vs. QUITAIN
78 SCRA 94
The distance limitation does not
apply where it is the accused who is asking
for a subpoena to compel attendance of
his witnesses.
Summons vs. subpoena
One thing which is often been confused especially
among laymen is a summons and a subpoena. They have
been interchanged. How do you distinguish a summons from
a subpoena?
A- To whom directed:
A summons is directed to a defendant in a
civil case, whereas, a subpoena is directed
to a witness.
B- What it requires/ directs:
A summons informs the defendant that a
case has been filed against him and that he
is directed to answer within a prescribed
period, whereas, a subpoena directs a
witness to testify during the trial or
investigation in a particular place or to bring
with you documents or things under your
control in the case of a subpoena duces
tecum.
C- Effect of failure to comply
If a defendant fails to file an answer as
required by the summons, he will be
declared in default, whereas, if a witness
who has been subpoenaed fails to appear
in court, he may be arrested by virtue of a
warrant of arrest or he may declared in
contempt of court.
D- Area of enforceability
A summons can be enforced anywhere in
the Philippines, whereas, a subpoena
cannot be enforced outside the 100
kilometer-limit distance.
End of Rule 21
Page 161 of 296
 Rule 22
COMPUTATION OF TIME
Sec. 1. How to compute time. - In computing any
period of time prescribed or allowed by these Rules, or
by order of the court, or by any applicable statute, the
day of the act or event from which the designated
period of time begins to run is to be excluded and the
date of the performance included. If the last day of the
period, as thus computed, falls on a Saturday, a
Sunday, or a legal holiday in the place where the court
sits, the time shall not run until the next working day. (n)
This is an entirely new rule. Actually we are already
familiar with this. In computing time, the first day is excluded
and the last day is included. You receive the summons today,
February 6, 1998 and you have 15 days from today to file your
answer. So, February 21. If February 21 turns out to be a
Saturday, or a Sunday or a legal holiday in the place where
the court sits, then there is an automatic extension on the
following day. Unless, the following day is a Sunday, etc. So,
automatic, the next working day.
Sec. 2. Effect of interruption. - Should an act be done
which effectively interrupts the running of the period,
the allowable period after such interruption shall start
to run on the day after notice of the cessation of the
cause thereof.
The day of the act that caused the
interruption shall be excluded in the computation of
the period. (n)
Let us give an example where the running of a period
is interrupted by an act. The period to answer a complaint is
15 days. The running of the 15 day period to answer is
interrupted by, say, the filing of a motion for a bill of particulars.
Or, a motion to dismiss.
Suppose, you have 15 days to answer, and the 15
day period is interrupted by the filing of a motion to dismiss,
say, after consuming 7 days, and your motion is denied later,
and you receive the order denying your motion, how many
days more do you have to answer? (Hindi na ito law, basic
arithmetic na ito.) So, 15 minus 7 equals 8.
Suppose, you have 15 days to file an answer, after
consuming 13 days, you file instead a motion to dismiss. Later
on, you receive an order denying your motion to dismiss, how
many more days are left for you to file your answer? 5 days
pa. Akala ko ba 15-13 equals 2? Because the law says xxx but
not less than five days xxx.
Now, let us read again the last paragraph. The day
of the act that caused the interruption shall be excluded in the
computation of the period. I’m sure many do not understand
this. Kahit abogado, hindi alam ito.
On January 31, defendant was served with
summons. On February 9, defendant filed a motion to dismiss.
On February 20, he received a court order denying his motion.
When is the deadline to file his answer?
The 15 day period starts running on Feb. 1. So, when
he filed a motion to dismiss on Feb. 9, the running of the 15-day
period is interrupted. So, na-consume niya is 9 days. Now,
Feb. 9 up to Feb. 20 will not counted. Interrupted, eh. So,
when is the deadline?
Sabi ng marami, even judges, since the defendant
still has 6 days more to go, so Feb. 20 plus 6 more days, the
answer should be Feb. 26. Actually mali yan. The deadline is
February 27 because of this last paragraph. The day of the act
that caused the interruption shall be excluded in the
computation of the period. What is the act that caused the
interruption? The filing of the motion to dismiss. Feb. 9 was the
day the motion to dismiss was filed. So, that is the act that
caused the interruption. So, that day shall be excluded in the
computation of the period. So, ang computation mo, Feb. 1
to Feb. 8 lang. So, you have actually consumed 8 days lang.
Ang error diyan, sinali mo pagbilang ang Feb. 9. So, 15-8
equals 7. So, your deadline is Feb. 27. Hindi na kasama ang
Feb. 9. Interrupted nga, eh.
You give this kind of problem of lawyers and judges,
I’m sure 95% will say Feb. 26. Wrong computation. Many
lawyers do not know how to compute. Kaya ako kumuha ng
law, hindi ako marunong niyang computation, eh. Judges,
too. That is what many people believed. Until the SC
explained and that doctrine is now here in the last paragraph.
End of Rule 22
Rule 23
DEPOSITIONS PENDING ACTIONS
(Rule of Discovery)
We have learned that in civil cases, there is still an element of
surprise. I may know your cause of action, I may know your
defense, but I have no way of knowing how you will prove
these. If you are going to testify, what will you say? If you are
asked this question, what will be your answer? Who are your
witnesses? What documents will you present in court? These
things I do not know. I will only come to know them when the
case reaches the trial stage. And based on what we have
already learned, I cannot force you to reveal your evidence.
If I will try to file a motion for a bill of particulars, the motion will
be denied because I will be seeking evidentiary facts.
Q: What is the ultimate remedy? Is there a way by which a
party can compel the revelation of evidentiary facts even
before the trial stage?
A: Yes. And that is what we call the modes of discovery
under the Rules of Court. And there are supposed to be five
(5).
1. Deposition Taking under 2 rules:
(Rule 23) Depositions Pending
Action
(Rule 24) Depositions Before Action
or Pending Appeal
2. (Rule 25) Interrogatories to Parties
3. (Rule 26) Admission by Adverse
Party
4. (Rule 27) Production or Inspection
of Documents or Things
5. (Rule 28) Physical and Mental
Examination of Persons
The term Modes of Discovery is self-explanatory. You
want to discover something. You want to find out. The first
type and the most famous is the so-called deposition taking
which is found now under Rules 23 and 24. Before we take up
these sections one by one, it is best that you get a general
idea of how it works. So, we will go to specific examples.
I will file a case against X. Of course, he has an
answer. He has a defense. If X testifies in court, I do not know
what will be his testimony. If I would ask him certain questions, I
would not know how he would answer. And I believe that he
has 2 witnesses, A and B.
Q: What will be the witnesses’ testimony? How would they
answer? I really do not know. What is my remedy?
A: Apply Rule 23. I will now compel X, together with A and
B to submit to deposition taking. Ano yan? I will take their
testimony in advance. Before the trial, I will compel them
to give their testimony under oath before a deposition
officer cited in Sec. 10 or 11. The deposition officer could
Page 162 of 296
 be a judge, or a notary public. Basta any person
authorized to administer oaths. I can force you to go to a
deposition officer. I can ask you to appear before Notary
Public so and so on this date and on this time because I
am going to take your deposition under oath. And then,
question and answer. Parang nasa court na rin tayo.
Question. Answer. Question. Answer. Under oath, ha.
And all your answers are recorded. That is what you call
deposition taking. So, pagdating ng trial, alam ko na ang
sasabihin mo. During the trial, if you are asked the same
question, I already know how you will answer. Remember
you have testified under oath. Hindi ka puwedeng
magkambiyo. So, it is a dress rehearsal for the trial. And
the person whose deposition is taken is called a deponent
and not a witness. Of course, when you testify later in
court, you are now a witness. You are a witness of X. But
under Rule 23, you are a deponent because I have taken
your deposition in advance.
And if I can do that against X, the defendant and his
witnesses, there is no reason why X cannot give me the same
treatment. He can also take my deposition and that of my
witnesses to find out how I will prove my cause of action. It
works both ways, eh. Meaning, even before the trial, bistado
na lahat.
Q: So, how do you define deposition?
A: Deposition is a written testimony of a witness given in the
course of a judicial proceeding in advance of a trial or
hearing upon oral examination or in response to written
interrogatories and where an opportunity is given for cross-
examination. So, if I will take the deposition of somebody,
you have the right also to ask questions. Parang trial talaga.
It is really a dress rehearsal for the trial.
Q: Is there a difference between an affidavit and a
deposition?
A: Because an affidavit is also a sworn statement made by a
person. Yes, there is. An affidavit is usually an ex parte
statement drawn up in writing without any formal
interrogation or cross-examination. It is a statement given
by one person. Of course, sometimes there is questioning
but usually only policemen do that. They investigate
witnesses. Anong nakita mo? But there is no cross-
examination. The other side is not given the chance to ask
questions. It is purely an ex parte statement taken only by
one side.
Do you understand now the entire concept?
Because if you see the entire concept, it is easier to
understand the individual sections. With that, we will now go
the individual sections. When may depositions be taken? Sec.
1:
Sec. 1. Depositions pending actions, when may be
taken. - By leave of court after jurisdiction has been
obtained over any defendant or over property which is
the subject of the action, or without such leave after an
answer has been served, the testimony of any person,
whether a party or not, may be taken, at the instance
of any party, by deposition upon oral examination or
written interrogatories. The attendance of witnesses
may be compelled by the use of a subpoena as
provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave
of court on such terms as the court prescribes. (1a, R24)
Dasmariñas Garments Inc. vs. Reyes
225 S 622
Issue: Whether or not deposition taking is
only allowed before the action comes to
trial. Can you still resort to deposition under
Rule 23 when the trial is already ongoing or
it is only at the pre-trial?
Ruling: Depositions may be taken at
anytime after the institution of any action,
whenever necessary or convenient. There
is no rule that limits deposition taking only to
the period of pre-trial or before it. No
prohibition against the taking of deposition
after pre-trial. Indeed, the law authorizes
the taking of deposition of witnesses before
or after an appeal is taken from the
judgment of the Regional Trial Court to
perpetuate their testimony for use in the
event of further proceedings in the said
court and even during the process of
execution of a final and executory
judgment.
Q: When you take the deposition of somebody under Rule
23, is there a case?
A: Yes, kaya nga pending action, eh. So, the deposition is
taken in connection with a pending case.
Q: Do I have to get the permission of the court where the
case is pending before I can apply Rule 23? Is leave of
court required or not?
A: The law says leave of court is required after jurisdiction
has been obtained over any defendant or over property
which is the subject of the action. Meaning, the defendant
has been summoned. Or assuming that the action is in rem,
after the court has acquired jurisdiction over the res. In
other words, I must file a motion in court to allow me to
apply Rule 23. After jurisdiction but no answer has yet been
filed. Yan. Jurisdiction has already been obtained over any
defendant or over the subject but no answer has yet been
filed.
Q: Suppose, there is already an answer filed by the
defendant.
A: The law says without such leave after an answer has been
served. And in most cases, lawyers apply Rule 23 after the
filing of an answer. Normally, file ako ng complaint, file ka
ng answer. And under the rule, I can apply Rule 23 without
seeking permission of the court. But everything is in
connection with the pending case.
Q: Do you mean to tell me puwede kong gamitin ito nang
walang pakialam ang court?
A: Yes. But as we shall see later, it does not mean to say that
the court has no power. That is in sections 16 and 18. If one
party abuses his right under Rule 23, the other party may file
a motion to complain about it. And the court can intervene
and lay the guidelines. Parang ground rules. So, the
situation to remember is: Ako ang court: Okay, wala akong
pakialam sa inyo. Gamitin ninyo ang Rule 23 for as long as
there is already an answer. Provided, walang mag-reklamo.
Kung may magreklamo, mag-file ng motion, papasok na
ako. I will control you and I will discipline you. That is the
procedure in deposition taking.
The second instance when leave of court is also
required even when there is already an answer is the last
sentence of Sec. 1: The deposition of a person confined in
prison may be taken only by leave of court on such terms as
the court prescribes.
Q: Is leave of court necessary for a party to resort to
deposition taking in connection with a pending action?
A: It depends. Leave of court is necessary in the following
instances:
(1) After jurisdiction has been
obtained over the person of
the defendant or over
Page 163 of 296
 property subject of the action
but no answer has yet been
filed by the defendant, or
(2) when the deposition of a
person confined in prison is
going to be taken.
And leave of court is no longer necessary once a
defendant has already filed and served an answer to the
complaint. Leave of court is totally unnecessary.
Q: Whose testimony or deposition can you take?
A: The law says xxx the testimony of any person whether a
party or not may be taken at the instance of any party xxx.
So, I am the plaintiff. I will file a case against Mr. Pascua.
Can I take his deposition? Yes. Can I take the deposition of
Mr. Angeles’ witnesses? Yes. Even if Mr. Angeles is not a
party, I can take his deposition.
Q: Can I take the deposition of my own witnesses?
A: Yes. You can take the deposition of any party. Because
the law says whether a party or not. It does not say that you
can only take the deposition of your opponent. You can
also take the deposition of your own witnesses. What for?
We will come to know why later. You can even take your
own deposition. I would like to give my own deposition.
Halimbawa, alam ko na malapit na akong mamatay. I
would like to take my own deposition. Baka pagdating ng
trial patay na ako. At least, before I die, nakuha na yung
aking testimony.
So, you can take the deposition of people whom you
just suspect to know something about the case. Halimbawa,
may kaso ako. I suspect that A is a witness. Either he is the
witness of Mr. Mayor or not, or maybe, ayaw niya lang mag-
volunteer. Maybe he knows something but he refuses to talk.
Ano kaya ang alam nitong si A? And I cannot subpoena him
to court. Delikado, eh because I don’t even know what you
will say. For all you know what you will say is in favor of Mr.
Mayor. So, why will use you as a witness? Pero ang suspetsa
ko, baka lang may alam ka. Okay, I will take your deposition
and ask you questions. Doon ko na malaman kung may alam
ka bang talaga. Yan. That is why you are discovering
something. Get the point?
Take note. How do you take the deposition of any person?
Sec. 1 says by deposition upon (1) oral examination or (2)
written interrogatories.
So, what are the types of deposition taking under the rules?
There are 2 types:
(1) deposition upon oral examination, or
(2) deposition upon written interrogatories.
Well, the most popular is the first type.
Q: How do you do it?
A: It is just like how you question a witness in court. Di ba
question and answer? Question. Answer. Question.
Answer. And it is recorded. That is what you call deposition
upon oral examination. We will explain later the second
type - deposition upon written interrogatories.
Suppose, I will take the deposition of Mr. Angeles
before notary public Juan dela Cruz who holds office in this
building along San Pedro St. I will take the deposition of Mr.
Angeles and Mr. Pascua. Paano ko man silang puwersahin?
Can I tell Mr. Angeles: Hoy, punta kayo roon ha because I will
examine you. Hindi man yan magpunta ba.
Q: How can you force them to appear before somebody to
deliver their testimony? What does the law say?
A: The attendance of witnesses may be compelled by the
use of a subpoena as provided in Rule 21. So, let us go back
to Rule 21, Sec. 1.
Sec. 1. Subpoena and subpoena duces tecum. -
Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by
competent authority, or for the taking of his deposition.
xxx (1a, R23)
So, the case is filed in Davao. I would like to take the
testimony of Mr. Angeles who is also in Davao City. And I
would like to take his deposition in the office of notary public
Juan dela Cruz on this date at this time. I will go to the court
where the case is pending and ask the clerk of court to issue a
subpoena on Mr. Angeles requiring him to appear on this date
and at this time in the office of notary public Juan dela Cruz
because I would like to take his deposition. And the court will
issue a subpoena.
Q: Suppose, I would like to take the deposition of somebody
who is in Cebu. Can it be done?
A: Yes, because under Rule 21, I cannot compel that witness
to come here. It is more than 100 kilometers. Paano ko
mang puwersahin yan na magpunta dito? I cannot
subpoena here.
Q: So, paano ang sistema?
A: You go to Cebu and take his deposition in Cebu. You get
somebody there, any lawyer or any notary public is
qualified. So, I will go there and take your deposition.
Q: Now, which court will issue the subpoena? The Davao
court where I filed my case?
A: No, you get your subpoena in Cebu. Before a Cebu
court. Ano man ang pakialam ng Cebu court sa Davao
case? That is allowed. You look at Sec. 2, Rule 21, by whom
issued:
Sec. 2. By whom issued. - The subpoena may be issued
by-
xxx
b) the court of the place where the deposition is to be
taken;
xxx
So, I will go to the RTC of Cebu and tell the clerk of court that I
have a case in the RTC of Davao and I have to take the
deposition of somebody in Cebu who is a witness before a
notary public in Cebu. So, I will ask the Cebu court to issue a
subpoena. Since the rules are uniform throughout the
Philippines, presumably, the clerk of court of Cebu knows this
and he will issue a subpoena although the case in not pending
in Cebu but in Davao. That is the procedure.
Marami ang nalilito dito. There was a case before. A
Manila lawyer wanted to take the deposition of somebody in
Davao before a deposition officer here. And the Manila
lawyer, siguro he did not read the rules clearly, he got a
subpoena before the Manila court. He asked for a subpoena
to require a witness in Davao to appear before a deposition
officer in Davao. And the clerk of court also did not read the
rules, issued a subpoena. Can you imagine a Manila court
issuing a subpoena to be enforced in Davao? Pagdating dito,
the witness did not show up. So, he asked the manila court to
hold the witness in contempt. And of course, the lawyer of the
witness said there is no subpoena. But there is, issued by the
Manila court. No, under the rules, you get a subpoena from a
Davao court although the case is pending in Manila. Because
the law says the court of the place where the deposition is to
be taken. Not the court of the place where the case is
pending. So, klaro no. Puwede yan if it is 100 kilometers or less.
Paglampas na, hindi na puwede. The subpoena has no more
effect beyond 100 kilometers. Of course, it can be remedied.
Inulit na naman niya. Can you imagine the expense of flying
all the way to Davao for the deposition taking which never
materialized simply because he forgot to apply the rules?
Page 164 of 296
So, you understand now how Sec. 1 of Rule 23 applies. Let us
now go to Sec. 2:
Sec. 2. Scope of examination. - Unless otherwise
ordered by the court as provided by section 16 or 18 of
this Rule, the deponent may be examined regarding
any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the
claim or defense of any other party, including the
existence, description, nature, custody, condition and
location of any books, documents, or other tangible
things and the identity and location of persons having
knowledge of relevant facts. (2, R24)
Sec. 2 answers the question: Ano ba ang puwede
kong itanong?
Q: What is it that you can ask? The deponent may be
examined on what?
A: If you look at the law, it is very broad. The deponent may
be examined regarding any matter relating to the claim or
defense of any party to the action subject to the following
limitations:
(1) The deponent may not be examined
regarding any privileged matter. Very clear yan, no.
The matter is not privileged.
(2) The deponent may only be examined
regarding any matter which is relevant to the subject
of the pending action.
(3) The court may issue orders to protect the
parties and deponents and to limit examination
under Sec. 16 or 18 of these Rules. That is the
opening clause: Unless otherwise ordered by the
court as provided by section 16 or 18 of this Rule xxx.
General rule. The deponent may be examined regarding any
matter relating to the claim or defense of any party to the
action.
Any matter relating to the claim. That is very broad. Is it
possible that I will take the deposition of Mr. X because I
suspect he knows something about the case? Suspicion lang
ba. Meaning, pataka ka lang ba. So, I will take his deposition.
I will ask one question hoping that in the process of asking I
might stumble into something. Is that allowed? Yes. That is
tantamount to a fishing expedition. I will question the
deponent without any definite target. Because I do not know
if he knows anything. He may know something or he may
know nothing. If he knows something I am not even sure
whether it will be in my favor or against me. So, tanong,
tanong, tanong. Hoping na mayroon akong tamaan. Is this
not tantamount to sanctioning a fishing expedition? Yes,
precisely this is a fishing expedition. Precisely the purpose of
deposition taking is fishing expedition hoping that you will
discover something. Dahil kung alam ko na, bakit pa ako
mag-deposition? If I already know what he is to say, there is
nothing to discover. That is why fishing expedition is allowed or
sanctioned by the rules. But there are limitations.
(1) The deponent may not be examined
regarding any privileged matter.
You cannot examine a witness regarding any
privileged matter. When you study Evidence in third year,
there is what we call "privileged communications" when even
in court you cannot compel the witness to testify on certain
matters which he learned confidentially. Like you cannot
compel the wife to reveal what her husband told her in
confidence. Ang tawag diyan marital communication rule.
You cannot compel a lawyer to reveal what his client told him
under the lawyer-client communication rule. You cannot
compel a doctor to reveal what his patient told him. Mga
symptoms, ba. That is physician-patient privileged
communication rule. You cannot compel a priest to reveal
what somebody told him in a confession. That is the priest-
penitent communication rule. These are what we call
privileged communications. If you cannot ask that in a trial,
you cannot also ask that in a deposition taking. Or, business
trade secrets. Yung formula, halimbawa, ng produkto mo.
(2) The deponent may only be examined
regarding any matter which is relevant to the subject
of the pending action
While it is true that deposition taking authorizes a
fishing expedition, it does not allow you to go beyond the
range of the topic. Like for example, you will ask the witness
about an incident which happened and she was supposed to
be there. Where were you on this date? I was there. Why
were you there? How come you were in that place when this
thing happened? I was with my boyfriend. Where did you
come from? When did he become your boyfriend? How
often do you date each other? My golly. Irrelevant. Anong
pakialam niyan? Sumobra naman. At least, yun bang may
connection sa nangyari.
(3) The court may issue orders to protect the
parties and deponents and to limit examination
under Sec. 16 or 18 of these Rules.
While it is true under Sec. 1 that leave of court may
not be needed, the court where the case is pending still has
power. The opening clause of Sec. 2 says that the court is still
authorized to issue orders under Sec. 16 or 18 of the rules.
These are orders to protect the parties and deponents if there
is abuse already by one party.
Sec. 3. Examination and cross-examination. -
Examination and cross-examination of deponents may
proceed as permitted at the trial under sections 3 to 18 of
Rule 132. (3a, R24)
Rule 132 is the rule on Evidence which deals with
examination and cross-examination of witnesses. But that is
not inside the courtroom in an actual trial. Deposition taking is
not inside the courtroom but outside. It can even be in a
private office but the procedure is the same as that in actual
trial. Let us now go to the opening clause of Sec. 4:
Sec. 4. Use of depositions. - At the trial or upon
the hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible
under the rules of evidence, may be used against any
party who was present or represented at the taking of
the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
Q: Suppose I take the deposition of A. Where will I use that?
Recorded testimony yan, eh. In what proceeding may I use
that deposition?
A: The law says I can use it during the trial of the case. Or,
the hearing of a motion. So, I can use a deposition to
support my motion or to support my opposition to a motion.
To support a motion or to oppose a motion. Or, the hearing
of an interlocutory proceeding. Ano yan? Yang mga
tinatawag na motion for issuance of a writ of preliminary
injunction. Or motion for issuance of writ of attachment.
Yun bang mga preliminary sa kaso. Yung mga preliminary
encounters sa case where you already ask the court to issue
this or that. You can use that already. So, anything related
to the case whether during the trial or hearing of a motion.
Q: Against whom can I use the deposition?
A: Well, the law says it may be used against any party who
was present during the taking of the deposition. Or he may
Page 165 of 296
 not be present but he was represented. Or, even if he was
not present or he was not represented but he had due
notice thereof. So, present, represented, or had notice
thereof.
I will go to a direct example. I have a case filed against Mr.
Pascua. I suspect that Mr. Nuere was somebody who
witnessed the vehicular collision. I do not know kung ano ang
alam ni Mr. Nuere. Suspetsa ko lang ba. So, he is not my
witness. He is not also your witness. But I will take his deposition
to discover. Under the law, I have to notify Mr. Pascua that I
am going to take the deposition of Mr. Nuere on this day on
this place. Now, Mr. Pascua could show up there and listen
and also participate by cross-examination. Sali rin siya. Or he
can send his lawyer to take his place. So, he is represented.
Halimbawa sabi ni Pascua, samok. Bahala kayo riyan. And he
will not also send his representative. Now, can I use in court
the deposition of Mr. Nuere when Mr. Pascua was not there?
Yes. Bakit? Sinabihan kita, eh. Since you did not show up, you
have already waived your presence. For as long as you are
notified, you are bound.
So, if I am the lawyer of Mr. Pascua and I receive that
kind of notice and he asks me: Attorney, unsa man ni?
Deposition kana sa possible witness. Unsa man kanang
deposition? I doubt if a layman can understand that. That
has happened already to us. Unsa man ng deposition? Di ba
sa trial na man na? No, this is in advance. Nganong puwede
man? Naloko na. Basta maminaw ka na lang. Samok. How
can you explain the modes of discovery to a layman.
Maminaw ka na lang. Adto ta. Kung dili ta mag-attend, that
can be used against us. We might as well go there. Sali na
lang tayo. Sali tayo sa tanungan. Because under the law, you
are bound even if you will not attend for as long as you are
notified.
Q: in what proceedings may a deposition be used?
A: the following:
(1) at the trial;
(2) upon a hearing of a motion; or
(3) upon a hearing of an interlocutory
proceeding (e.g. issuance of preliminary
injunction or attachment)
Q: against whom may a deposition be used?
A: against the following:
(1) against any party who was present; or
(2) against a party who was represented at the
taking of the depostion; or
(3) against a party who did not appear or
represented but was duly notifed of the scheduled
deposition taking.
Deposition taking has a counterpart in criminal
procedure. Iba lang ang tawag: conditional examination of
witnesses. I think Rule 119.
Now, let us go to the individual uses. Par. (a):
a. Any deposition may be used by any party for
the purpose of contradicting or impeaching the
testimony of deponent as a witness;
To impeach is to try to destroy the credibility of a
witness. Now, one of the ways by which a lawyer will try to
destroy the credibility of a witness is by proving inconsistency in
a witness’ story. Ngayon ito ang sinasabi mo. Bukas, iba
naman. Meaning, araw-araw sige kag kambiyo ug istorya
nimo. When a witness says something now on this subject the
after a while he says the exact opposite, that is one sign that
the witness is not reliable. That is why one of the ways to
impeach a witness, as we shall study the rules on evidence, is
to confront him with a previous statement that he made which
he conflicts with what he is saying now.
Now, here is the question. Suppose, I will take the
testimony of X. During the deposition taking, lahat ng sinabi
niya pabor sa akin. In other words, you are a valuable witness
pala. And that is recorded. And we will assume that the
lawyer of Y cross-examined X. So, parang nag-testify na siya in
court. Now, during the trial, sasabihin ko my next witness is X.
Your Honor, he is a very busy man. He has no time to come to
court so I took his deposition and he was cross-examined
already by the other party. And if he will testify in court, he will
also narrate the same story. If I ask a question, ito ang answer
niya. Para huwag na ang siyang magpunta rito, ito na. That is
now the substitute. The recorded testimony during the
deposition taking is introduced in evidence in lieu of his oral
testimony.
Q: Is that allowed under par. (a)?
A: And the answer is no. A deposition is only allowed for the
purpose of contradicting or impeaching the testimony of
the deponent as a witness. Meaning, under par. (a), the
taking of a deposition of somebody is not an excuse for not
presenting him in court. You still have to send him to court
all over again. But at least when he testifies, nakasiguro ka
na on what he will testify.
But halimbawa, the witness, X, biglang nag-about
face. Pag-testify niya, iba naman ang sinasabi. Pabor naman
sa kabila. Naloko na. Meaning, what he testified in court is
completely different from what he had said during the
deposition taking. Now, pag ganyan ang witness mo, sirain
mo siya. I will now confront you with your deposition taken
earlier where you said na ganito. Ito ang sinasabi mo ngayon.
Ito naman ang sinabi mo noon. So, the deposition may be
used by the other party to contradict or impeach him
because you can now determine if there is any inconsistency
between his testimony during the deposition taking and his
testimony now when he is testifying. So, that is the first use of a
deposition. It can be used only for contradicting or
impeaching a witness. But the witness has to appear in court
to testify all over again.
b. The deposition of a party or of any one who at
the time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is a
party may be used by an adverse party for any
purpose;
What is the difference between par. (a) and par.
(b)? Par. (a) refers to the deposition of a witness but he is not
a party to the case. In par. (b), you are referring to the
deposition of the party himself. So, A files a case against B. I
will take the deposition of B. B is not a witness, he is a party
himself. Suppose, the defendant is a corporation, then the
deposition of any of its officers will be the counterpart.
Because you cannot take the deposition of a corporation. But
you can take the deposition of any of its officers, directors, or
managing agent.
And secondly, if you will notice in par. (a), the
deposition is only used for the purpose of contradicting or
impeaching the testimony of a deponent as a witness. It
cannot be used as evidence to prove what he said. But it can
be used to contradict what he said. But in par. (b), it is
different. The deposition of a party may be used by an
adverse party for any purpose. Broader, no? Let us try to
illustrate that. I will take the deposition of my deponent. So I
already have his testimony. And then during the trial, he said
something which contradicts what he said in the deposition.
Can I use the deposition to contradict or impeach him? Yes,
just like in par. (a).
But suppose when I took his deposition, he made a
statement which favors me. Now, during the trial, I can offer in
evidence what he said to favor me. Meaning, he himself
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admitted it. Therefore, I will use it as evidence to prove an purpose but only purpose but it used by any party
admission in my favor. So, I can use it to support my cause or I to contradict or refers to the for any purpose.
can use it to contradict or impeach you. Kaya nga broader, impeach the deposition of your
eh. It can be used by the adverse party as his own evidence testimony of the opponent.
to prove an admission made by his opponent or it can also be deponent as a
used just like in par. (a) to contradict or impeach him as a witness
witness.

Unlike in par. (a), if for example, I will file a case
against Mr. Pascua and I will take the deposition of Mr.
Angeles who is not a party. And in Mr. Angeles' testimony, he
said something in my favor, I cannot use that in court. I have
to ask him to appear in court and repeat exactly what he told
me. That is the only time I can use him as my witness. But if I
take the deposition of Mr. Mayor and he said something in my
favor, I can offer it in court. He himself admitted, eh.
Meaning, I can use it as my evidence or I can use it to
contradict or impeach him. Kaya broader.
If the witness is already dead.
Let us try to connect that with our example earlier. I will take
the deposition of a witness, Mr. X, who is not a party. And his
testimony is favorable to me. Instead of presenting Mr. X, I will
tell the court that I will just present his deposition to prove his
testimony. Busy siya, eh. Puwede ba yan? As a general rule,
that cannot be done. You cannot use a deposition as
evidence. You can only use it to impeach or contradict his
testimony. I will have to ask him to be my witness.

But suppose after I take the deposition of Mr. X,

namatay siya. Naaksidente doon sa Cebu Pacific. Wala na
Rule 23, section 4 akong testigo. But I was lucky because I got his deposition.
Paragraph (b) This time, I will tell the court: Your Honor, my next witness is Mr.
Paragraph (a)
X. The trouble is he died in a plane crash one week ago. But I
Deposition of a witness but Deposition of party himself
was able to take his deposition last month. Therefore, I am
he’s not a party to the case
now offering in evidence his deposition to take the place of his
Used for the purpose of Can be used by adverse
oral testimony. And this time, that is allowed. Kung buhay, you
contradicting or impeaching party for any purpose
cannot apply par. (c). You can only apply par. (a).
the testimony of a deponent * can be offered as
as witness, can’t be used as evidence
There was a student before who asked these questions while
evidence to prove what he
we were still discussing Secs. 1-3: Can I take the deposition of
said only to contradict
my opponent? Yes. Can I take the deposition of his
witnesses? Yes. Can I take the deposition of people whom I
suspect to know something about the case? Yes. Can I take
Let us go to the third possible use.
my own deposition? Yes. Can I take the deposition of my own
witnesses? Yes, because of Sec. 1. You can take the
c. The deposition of a witness, whether or not a
deposition of any person whether your witness, my witness, or
party, may be used by any party for any
suspected witnesses.
purpose if the court finds:
Then we went to par. (a). Sabi niya, well, if I take the
1. that the witness is dead; or
depositions of the witnesses of my opponent, I can see the
importance of that. Meron na akong pangbangga sa kanila.
2. that the witness resides at a
If they will now contradict themselves when they testify for my
distance more than one hundred (100)
opponent, I can always contradict them under par. (a). But
kilometers from the place of trial or
why will I take the deposition of my witnesses? It is not
hearing, or is out of the Philippines,
advisable to take the deposition of my witnesses because I will
unless it appears that his absence was
also be supplying the other side a means to impeach the
procured by the party offering the
testimony of my witness. Sabi ko, that is true. If you look at par.
deposition; or
(a) only. But you look at par. (c). Halimbawa ang testigo mo
importante, tapos biglang namatay. Patay ka na ngayon.
3. that the witness is unable to attend
Kung nakuha mo na ang deposition niya earlier, masuwerte
or testify because of age, sickness,
ka.
infirmity, or imprisonment; or
Hence, it is true that when you take the deposition of
4. that the party offering the
your own witness, you are supplying the other party a means
deposition has been unable to procure
to impeach the testimony of your witness. But if you look at Par
the attendance of the witness by
(c), it is also important to take the deposition of your witness,
subpoena; or
the purpose is just in case you will die before you can testify in
court. You’re lucky if you got the deposition earlier.
5. upon application and notice, that
such exceptional circumstances exist
as to make it desirable, in the interest of
justice and with due regard to the Q: I will take a depostion of Juan who is my witness. During
importance of presenting the testimony the trial, my next wtiness is Juan. Do I have to present Juan
of witnesses orally in open court, to or only his testimony in the deposition as evidence?
allow the deposition to be used; and A: I have to present my wtiness Juan because under par.
(1), the deposition is only good for impeachment pruposes
Let us try to compare this with pars. (a) and (b) but not a replacement ofr his oral testimony.
because this is the broadest. The deposition of a witness,
whether or not a party may be used by any party for any Q: suppose when I’m about to present Juan during the
purpose xxx. So, par. (c) is the exception to par. (a). trial, a day before that he died. So, I have no more
witness. Can I now present his testimony in the deposition
par. (a), par. (b) par. (c) as evidence?
the deposition of a it is in where you the deposition of a A: YES. Under the law, his deposition wil take the place of
witness cannot be can use the witness, whether or his oral testimony because he is dead. However, if he is
used for any other deposition for any not a party may

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 alive, apply par (a) – you can’t substitute his deposition to
his oral testimony.
The witness resides at a distance of more than 100 kilometers
from the place of trial or hearing, or is out of the Philippines
My witness is from Cebu. Under the rule on
subpoena, I can’t compel him to come to Davao and testify
ina case because of the 100-kilometer rule.. the remedy is to
go to Cebu and take a deposition there. When the case in
Davao is called, I will tell the court that my next witness is from
Cebu so I have no choice but to take a deposition there. In
this case, I offer as evidence his deposition to take the place
of his oral testimony. That is allowed as exception in par. (a).
If your witness is leaving for abroad, you might as well
take the deposition before it is too late or you might end up
w/o any witness. That is the advantage of par (c).
Witness not found
If I am able to procure the attendance of my witness
by subpoena means that he witness can no longer be found.
His whereabouts is already unknown but I was able to take his
deposition earlier.
d. If only part of a deposition is offered in evidence
by a party, the adverse party may require him to
introduce all of it which is relevant to the part
introduced, and any party may introduce any
other parts.(4a, R24)
suppose I will take the deposition of Juan dela Cruz.
The first part is in my favor but when he was cross-examined by
the other party, he clarified his answers and turend out that his
original answers were not really in my favor.
2 parts of the deposition: PART 1, in the general
questions, the answers seem to be in my favor, PART 2, when
the questions are specific, it turned out that it was not in my
favor. So if I am the lawyer what I will offer is PART 1 as my
evidence because it is in favor of my client. The other party
will present the other part.
Sec. 5. Effect of substitution of parties. -
Substitution of parties does not affect the right to
use depositions previously taken; and, when an
action has been dismissed and another action
involving the same subject is afterward brought
between the same parties or their representatives
or successors in interest, all depositions lawfully
taken and duly filed in the former action may be
used in the latter as if originally taken therefor. (5,
R24)
Suppose there is a case filed by A against B and in
the course of the case, depositions were taken. And after that
one of the parties died and there was substitution of the
deceased plaintiff.
Q: Is there a need of taking depositions again or will the
deposition already taken be also applicable to the same
case although the parties are now different?
A: Yes. In other words, the substitution of parties does not
affect the right to use depositions previously taken. In the
same manner that A files a case against B and depositions
are taken and the case is dismissed without prejudice, can
A refile the same case? That is an entirely new case
number.
Q: Is it necessary for depositions to be taken all over again?
Or, will depositions taken in the dismissed case apply to the
new case?
A: The depositions taken in the dismissed case will still apply
to the new case. There is no need of repeating the whole
process. That is what section 5 is all about.
Sec. 6. Objections to admissibility. - Subject
to the provisions of section 29 of this Rule,
objection maybe made at the trial or hearing to
receiving in evidence any deposition or part
thereof for any reason which would require the
exclusive of the evidence if the witness were then
present and testifying. (6, R24)
Of course in a trial, a party may object to evidence
being introduced by the other party.
Q: Now suppose, we are talking of depositions, can you also
object to the evidence which is being offered in a
deposition?
A: The answer is yes. You can still make the objection but it
is subject to the provisions of Sec. 29 which we are still going
to discuss. In the first place, you have to remember that a
deposition officer is not a judge. He is not trying the case.
He is just receiving the testimony of the witness. And since
he is not the judge, obviously he cannot rule on the case.
That is why this will become clearer as we shall see later
whether you can object to the evidence and whether the
deposition officer has the power to rule on admissions.
Sec. 7. Effect of taking depositions. - A party
shall not be deemed to make a person his own
witness for any purpose by taking his deposition.
(7, R24)
Suppose I will take the deposition of Pedro and
announce it to the other party. Is Pedro my witness? The
answer is no. By taking the deposition of a person, you are not
making him a witness. Because for all you know, he may know
nothing about the case. Or, if he knows something, what he
may have to say is against you. The purpose of deposition is
only to discover something from him but not to make him my
witness.
Sec. 8. Effect of using depositions. - The
introduction of evidence of the deposition or any
part thereof for any purpose other than that
contradicting or impeaching the deponent makes
the deponent the witness of the party introducing
the deposition, but this shall not apply to the use by
an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule. (8, R24)
Suppose I take the deposition of Pedro and then he
died. Under Sec. 4, I will now offer in evidence his deposition
to take the place of his oral testimony. From that moment, he
becomes my witness. When you use his deposition in
evidence in your favor, from that moment he becomes your
witness. So, in Sec. 7, he is not your witness by simply taking his
deposition. But once you formally offer it in court, he becomes
now your witness. That is the rule.
With only two exceptions.
(1) When you offer in evidence the deposition to use it as a
method of contradicting or impeaching, he is not your witness.
We know very well in Sec. 4, the first use of a deposition is that
it can be used to contradict or impeach the witness. I can use
it as a weapon to destroy your credibility. So, if you say
something in court which contradicts your deposition, I will
offer in evidence your deposition to show that you are not a
reliable person. Now, by introducing in evidence your
deposition, you are not my witness because I am only using
the deposition as an instrument to impeach or contradict you.
That is the first exception.
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(2) The other one is when you introduce in evidence
the deposition of your opponent under par. (b) of Sec. 4.
When I introduce in evidence the deposition of my opponent,
he is not my witness. How can he be my witness when he is my
opponent? Bu t I am introducing in evidence his deposition
also for possible impeachment or to prove some admissions
that he made in my favor. That is why when you offer in
evidence the deposition of your opponent, the things that he
said in his favor will not bind you because he is not your
witness. But the things that he said in your favor will bind him
because he is under estoppel. Anything that you say on your
side will not bind me. But anything that you say for me will
bind you. That is the beauty of using the depositions of your
opponent.
General Rule: When deposition is used in evidence in
your favor, deponent becomes your witness
Exceptions: (1) When you offer in evidence the
deposition to use it as a method of contradicting or
impeaching,
(2) When you introduce in
evidence the deposition of your opponent
under par. (b) of Sec. 4.
Sec. 9. Rebutting deposition. - At the trial or
hearing, any part may rebut any relevant
evidence contained in a deposition whether
introduced by him or by any other party. (9, R24)
Q: Can a party produce evidence which contradicts the
statement made by the deponent in his deposition?
A: Yes. It is just like a witness in court. If a witness says
something in court, you can always prove that that is not
true. If it is a deposition, the same thing. You can always
rebut the truth of what he said in his deposition.
We will now go to a more important provision. We
said that in a deposition, there must be a deposition officer
before whom the deposition is going to be taken.
Q: Who are authorized to act as deposition officers?
A: It would depend on whether you are taking the
deposition of a party in the Philippines or you are taking his
deposition abroad.
Sec. 10. Persons before whom deposition
may be taken within the Philippines. - Within the
Philippines, depositions may be taken before any
judge, notary public, or the person preferred to in
section 14 hereof. (10a, R24)
Depositions may be taken before any judge because
a judge is authorized to administer oath. The case is in Davao,
I will take the deposition of a witness in Cebu or in Manila.
Q: Can I request a judge in Cebu or Manila to be the
deposition officer?
A: Yes, he is authorized. Of course, he will not be the one
to decide. He is not the judge acting on that case. He is
only the deposition officer. So, any judge.
Or notary public. So, it is not really necessary that you
bother judges because they may not have the time for this.
And there are so many notaries public you will not have
difficulty looking for one. Is every lawyer a notary public? No,
there are lawyers who are notaries public and there are those
who are not.
Q: What makes a lawyer a notary public?
A: To be a notary public, you have to apply for commission
in the court of the place where you are practicing. So, if
you intend to be a notary public in Davao City, you have
to apply for a commission as notary public before the
Regional Trial Court of Davao City. If you are a notary
public for Davao City, you cannot be a notary public in
any other place. Otherwise, mag-aapply ka na naman.
And usually, a commission for notary public is only good for
two years. After 2 years, you have to re-apply. So, if you
are a lawyer and you have not applied for commission to
be a notary public, you cannot notarize any document
because you are not a notary public.
So, the following are authorized to act as deposition
officers: any judge, notary public or the person referred to in
Sec. 14. Who are these people referred to in Sec. 14?
Sec. 14. Stipulations regarding taking of
depositions. - If the parties so stipulate in writing,
depositions may be taken before any authorized
to administer oaths, at any time or place, in
accordance with these Rules, and when so taken
may be use like other depositions. (14a, R24)
So, aside from judges and notaries public, the parties
may agree in writing that a deposition be taken before some
other person provided that person is also authorized to
administer oaths. Examples of persons who are authorized to
adminster oath other than judges and notaries public are the
clerk of court, fiscals, labor arbiters.
Q: If the parties agree to resort to deposition taking and
would rather choose a labor arbiter or a fiscal to act as
deposition officer rather than a judge or notary public. Is
that allowed?
A: Yes, provided they agree in writing. The labor arbiter is
also authorized to administer oaths.
We will now go to deposition taking abroad. It is not
necesasary that deposition taking be done in the Philippines.
For example the person whose deposition you are going to
take is already residing abroad. You can take his deposition
abroad.
Q: Who are authorized to take his deposition abroad?
A: Section 11.
Sec. 11. Persons before whom depositions
may be taken in foreign countries. - In foreign state
or country, depositions may be taken (a) on notice
before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of
the Republic of the Philippines; (b) before such
person or officer as may be appointed by
commission or under letters rogatory; or (c) the
person referred to in section 14 hereof. (11a, R24)
So, in a foreign country or state depositions may be
taken (a) on notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent of the
Republic. These are the people who are with the Department
of Foreign Affairs. They are stationed abroad. As a matter of
fact, there is an SC Circular on this topic - taking of depositions
abroad through the services of the these people. According
to the circular, the taking of depositions of witnesses abroad
has to be coursed thru the DFA. Meaning, you have to seek
the permission or you have to work thru channel. You cannot
communicate directly to the Philippine consul abroad and say
could you act as deposition officer. It must be coursed first to
the DFA.
Q: How about in countries where we have no embassy or
consulate?
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 A: We only have embassies in countries where we have
diplomatic relations. And even if we have diplomatic
relationship, I don’t think that we have a consulate in every
city in that country. Maybe in the capital city only like the
former Soviet Union sa Moscow. We don’t have any
consulate outside Moscow. Suppose I”m going to take the
deposition of somebody in another city in Russia, wala
tayong consulate doon.
Q: So, how do you do it?
A: Under (b), depositions may be taken before such person
or officer as appointed by commission or under letters
rogatory. What do you mean by commission or a letter
rogatory? And that is explained in the next section.
Sec. 12. Commission or letters rogatory. - A
commission or letters rogatory shall be issued only
when necessary or convenient, on application and
notice, and on such terms and with such direction
as are just and appropriate. Officers may be
designated in notices or commissions either by
name or descriptive title and letters rogatory may
be addressed to the appropriate judicial authority
in the foreign country. (12a, R24)
A commission or letters rogatory shall be issued only
when necessary or convenient on application and notice.
Meaning, leave of court is totally necessaary here. Normally,
the taking of deposition in the Philippines does not require
leave of court. We know that already under Sec. 1. But when
you take deposition of somebody abroad either by
commission or letters rogatory, you must need a court order.
What is a commission or letters rogatory? A
commission as defined by the SC in the 1993 case of
Dasmariñas.
DASMARINAS GARMENTS INC. vs.. REYES
225 SCRA 622
It is an instrument issued by a court
of justice or other competent tribunal to
authorize a person to take depositions or do
any other act by authority of such court or
tribunal.
The deposition of somebody in
Taiwan was going to be taken. And we
have no diplomatic relations in Taiwan. We
only recognize Beijing. But we have some
Philippine government officials, yung mga
trade representatives. So, in that case, the
person authorized to take the deposition
was one of the government officials
stationed in Taiwan. The validity of the
deposition taking in Taiwan was questioned
on the theory that it was illegal because it
was a foreign jurisdiction not recognized by
the Philippines in view of this One China
Policy. Was it valid? Yes, it was valid. What
matters is that the deposition was taken
before a Philippine official acting by
authority of the government by virtue of a
commission duly issued by the Philippine
court in which the action is pending. And in
accordance moreover with the provisions of
the Rules of Court. That is what you call a
commission.
So, suppose I would like to take the deposition of
somebody who is staying in Alabama where we have no
consulate. I know of a Filipino lawyer who resides there and of
course he understands deposition taking. I will request the
court that this Filipino lawyer abroad be authorized to take the
deposition of a person there. And if the court agrees, it will
issue what is known as a commission. Practically any person
who is authorized by the court.
The other possibility is under letters rogatory.
Q: What is letters rogatory?
A: It is an instrument whereby a foreign court is informed of
a pendency of a case and the names of the foreign
witnesses and is requested to cause their depositions to be
taken in due course of law for the furtherance of justice
with an offer on the part of the court making the request to
do the like for the other a similar case. That is how law
dictionaries define it.
In the same case of Dasmarinas Garments, the SC
defined letters rogatory as an instrument sent in the name and
by the authority of a judge or court to another requesting the
latter to cause to be examined upon interrogatories filed in a
cause pending before the former a witness who is within the
jurisdiction of the judge or court to whom such letters are
addressed.
Let’s go to a specific example. Suppose, there is a
case in Davao and one of the witnesses happen to be in North
Korea where we have no diplomatic relations. But I want to
take the deposition of that witness.
Q: Who will act as the deposition officer?
A: One possibility is: I will ask the court in Davao to issue
what is known as letters rogatory. It is a letter, a
communication written by the Davao court addressed to
the appropriate judicial authority in North Korea. Definitely
there are courts in Korea but we do not know the kind of
judicial system they have. Even the most primitive country
has a judicial system. Our court will write the North Korean
government to the appropriate judicial authority informing
the Korean court that there is a case in Davao and one of
the witnesses for the plaintiff is within their jurisdiction. This is
the name and this is his address. We are requesting that if
possible, it would take the deposition of the witness by
answering the following questions. And after answering,
ipadala sa atin. With a statement that in the future, if they
have a similar problem, rest assured that we will also
reciprocate. Yan ang tinatawag na letters rogatory. Now,
do you think the Korean court will understand what it is all
about? Yes, because deposition is universal. The use of
depositions is known in any legal system in the world.
Suppose, the Korean court will ignore it. Kasi
pakiusap lang naman ito, eh. Wala kang magawa. You
cannot force the Korean government to honor it. But chances
are they will. Because of goodwill. Countries do not want to
be branded as uncooperative. That is international goodwill,
international courtesy. That is what letters rogatory is all about.
Now in the case of Dasmarinas Garments, the SC
said:
Q:What is the distinction between a commission and letters
rogatory?
A: Based on the law in Sec. 12, a commission is addressed
to officers designated either by name or descriptive title
while letters rogatory are addressed to some appropriate
judicial authority of a foreign state. Moreover, in the case
of Dasmarinas Garments, the SC said: You can only resort
to letters rogatory if you attempted the commission first.
Because it is directed to a specific person. But if it does not
succeed, then that is the time you resort to letters rogatory.
Letters rogatory may be applied for and issued only after a
commission has been returned unexecuted.
Sec. 13. Disqualification by interest. - No
deposition shall be taken before a person who is a
relative within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the
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 parties; or who is a relative within the same
degree, or employee of such counsel; or who is
financially interested in the action. (13a, R24)
So, you are disqualified to act as deposition officer if
you are related to any of the parties or the lawyer. You get
somebody who is not related. There is nothing much there.
Sec. 14. Stipulations regarding taking of
depositions. - If the parties so stipulate in writing,
depositions may be taken before any authorized
to administer oaths, at any time or place, in
accordance with these Rules, and when so taken
may be use like other depositions. (14a, R24)
We have already discussed that. Any person can be
designated as deposition officer by stipulation of the parties
provided he has the power to administer oaths.
There are 2 types of deposition taking:
(1) deposition upon oral examination and
(2) deposition upon written interrogatories
Deposition upon oral examination is governed by Sec 15 and
this is the most popular. Oral examination. Question-answer.
Question-answer. Everything is recorded.
Sec. 15. Deposition upon oral examination; notice
time and place. - A party desiring to take the
deposition of any person upon oral examination
shall give reasonable notice in writing to every
other party to the action. The notice shall state the
time and place for taking the deposition and the
name and address of each person to be
examined, if known, and if the person is not
known, a general description sufficient to identify
him or the particular class or group to which he
belongs. On motion of any party upon whom the
noticed is served, the court may cause shown
enlarge or shorten the time. (15a, R24)
Q:What is the procedure if you want to take the deposition
of somebody?
A: You have to notify your opponent. Notice to take
deposition. I am informing you that I am going to take the
deposition of X, Y and Z on this date at this time before
notary public so and so. And there is a notice to you that
you have to participate otherwise you are bound. And
how do I compel witnesses? Suppose I want to take the
deposition of X. How do I compel him to appear before
the deposition officer? You ask for a subpoena. Let us go
to Rule 21, Sec. 5.
Sec. 5. Subpoena for depositions. - Proof of
service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice
by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any
such person without an order of the court. (5a, R23)
I will ask the clerk of the court in the place where the
deposition is to be taken to issue a subpoena. And I will just tell
him that I sent a notice to take his deposition and I would like
this witness to appear before the deposition officer. So, if you
are going to take the deposition of a person in Cebu although
the case is in Davao, you go to Cebu and ask the clerk of the
court in Cebu to issue a subpoena to compel the witness to
appear here before the notary public.
The last sentence of Sec. 15: On motion of any party
upon whom the noticed is served, the court may cause shown
enlarge or shorten the time. Suppose you will send me a
notice that you are going to take the deposition of a witness
from Feb. 1 to Feb. 20 morning and afternoon. So, practically,
wala na akong magawang trabaho niyan. I can go to court
and complain. Twenty days is too much. That should be
reduced. And the court may come in and enlarge or shorten
the time.
Sec. 16. Orders for the protection of parties
and deponents. - After notice is served for taking a
deposition by oral examination, upon motion
seasonably made by any party or by the person to
be examined and for good cause shown, the court
in which the action is pending may make an order
that the deposition shall not be taken, or that it
may be taken only at some designated place
other than that stated in the notice, or that it may
be taken only on written interrogatories, or that
certain matters shall not be inquired into, or that
the scope of the examination shall be held with no
one present except the parties to the action and
their officers or counsel, or that after being sealed
the deposition shall be opened only by the order
of the court, or that secret processes, develop-
ments, or research need not be disclosed, or that
the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court;
or the court may make any other order which
justice requires to protect the party or witness from
annoyance, embarrass-ment or oppression. (16a,
R24)
At the start, I already explained that deposition
taking does not even require the consent of the court. Once
there is already an answer, there is no need for a leave of
court. So, you can sent a notice for deposition taking without
seeking the permission of the court. But remember that the
application of Rule 23 depends on the existence of the case in
court. Whether you like it or not, the court retains its power
over deposition taking. As far as the court is concerned, okay
bahala kayo diyan. You apply Rule 23, I do not care how you
do it provided nobody will come to me complaining. If you
abuse it, one party can file a motion to issue an order for the
protection of the party. So, these are the house rules. The
court will issue an order stating the ground rules. Deposition is
purely your concern provided nobody would come here and
complain. That is one of the limitations of deposition taking.
The court retains its power and control in the process of
deposition taking.
Sec. 17. Record of examination; oath;
objections. -The officer before whom the
deposition is to be taken shall put the witness on
oath and shall personally, or by some one acting
under his direction and in his presence, record the
testimony of the witness. The testimony shall be
taken stenographically unless the parties agree
otherwise. All objections made at the time of
examination to the qualifications of the officer
taking the deposition, or to the manner of taking it,
or to the evidence presented, or to the conduct of
any party, and any other objection to the
proceedings, shall be noted to the officer upon the
deposition. Evidence objected to shall be taken
subject to the objections. In lieu of participating in
the oral examination, parties served with notice of
taking a deposition may transmit written
interrogatories to the officers, who shall propound
them to the witness and record the answers
verbatim. (17, R24)
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 In the courtroom, when you object to an evidence,
the court has the power to rule. Objection, Your Honor.
Objection sustained.
Q: Does the deposition officer have the power to rule on the
objection?
A: No, he cannot sustain or overrule the objection. So,
what happens if there is an objection? Well, the law says
evidence objected to shall be taken subject to the
objections. Example: A question is asked in court.
Objection. Objection sustained. There is no need to
answer the question because the objection is correct.
Suppose that happens in a deposition taking. There
is a question. And the lawyer will object. What will the
deposition officer do? The deposition officer will say note the
objection. That the question is objected to. Alright, witness,
answer. Meaning, the answer still has to be given subject to
the objection. Now, who will rule on the objection? When the
deposition reaches the court, it is now the court which will rule
on the objection. If the objection is wrong, therefore, it is
overruled, the answer as recorded remains. If the objection is
sustained by the court, the answer as recorded is erased as if it
was never answered. Kaya nga evidence objected to shall
be taken subject to the objection. Because the deposition
officer has no power to rule on the objection. It is only the
judge of the court where the case is pending.
Sec. 18. Motion to terminate or limit
examination. - At any time during the taking of the
deposition, on motion or petition of any party of
the deponent and upon the showing that the
examination is being conducted in bad faith or in
such manner unreasonably to annoy, embarrass,
or oppress the deponent or party, the court in
which the action is pending or the Regional Trial
Court of the place where the deposition is being
taken may order the officer conducting the
examination to cease forthwith from taking the
deposition, or may limit the scope and manner of
the taking of the deposition, as provided in section
16 of this Rule. If the order made terminates the
examination, it shall be resumed thereafter only
upon the order of the court in which the action is
pending. Upon the demand of the objecting party
or deponent, the taking of deposition shall be
suspended for the time necessary to make a
notice for an order. In granting or refusing such
order, the court may impose upon either party or
upon the witness the requirement to pay such
costs or expenses as the court may deem
reasonable. (18a, R24)
Secs. 16 and 18 are similar. They both talk about the
power of the court to control the deposition taking. So, I can
file a motion and ask that the court will issue that and the court
can protect the parties. Secs. 16 and 18 talk about the
limitations in deposition taking. The court has the power to
stop or lay down certain rules.
Sec. 19. Submission to witness; changes; signing. -
When the testimony is fully transcribed, the
deposition shall be submitted to the witness for the
examination and shall be read to or by him, unless
such examination and reading are waived by the
witness desires to make shall be entered upon the
deposition by the officer with a statement of the
reasons given by the witness for making them. The
deposition shall then be signed by the witness,
unless the parties by stipulation waive the signing
or the witness is ill or cannot be found or refuses to
sign. If the deposition is not signed by the witness,
the officer shall sign it and state on the record the
fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together
with the reason given therefor, if any, and the
deposition may then be used as fully as though
signed, unless in a motion to suppress under
section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require
rejection of the deposition in whole or in part. (19a,
R24)
The questions are asked and recorded. The
procedure is after that naka-transcribed yan ng stenographer.
The stenographer will now prepare the question and answer.
The answers and the questions will be shown to the witness
again. Basahin mo. Do you want to change your answers?
Yes, he may but he must state his reason for the change in his
answer. And he signs it. Unless the signing is waived. The
parties stipulate that there will be no more signing. Or he
cannot sign because he is ill. In these cases, the deposition will
be signed by the deposition officer.
Sec. 20. Certification and filing officer. - The
officer shall certify on the deposition that the
witness was duly sworn to by him and that the
deposition is a true record of the testimony given
by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of
the action and marked “Deposition of (here insert
the name of witness)” and shall promptly file it with
the court in which the action is pending or send it
by registered mail to the clerk thereof for filing. (20,
R24)
That is self explanatory.
Sec. 21. Notice of filing. - The officer taking
the deposition shall give prompt notice of its filing
to all the parties. (21, R24)
That is also clear enough.
Sec. 22. Furnishing copies. - Upon payment of
reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to
the deponent. (22, R24)
Any party can ask for a copy of the deposition. You pay the
fee. Actually, you pay the stenographer just like when you ask
for stenographic notes.
Sec. 23. Failure to attend of party giving
notice. - If the party giving the notice of the taking
of a deposition fails to attend and proceed
therewith and another attends in person or by
counsel pursuant to the notice, the court may
order the party giving the notice to pay such other
party the amount of the reasonable expenses
incurred by him and his counsel in so attending,
including reasonable attorney’s fees. (23a, R24)
Suppose I will notify the opposing counsel who is from
Manila of the taking of a deposition of a witness in Davao on
this date at this time. And he came over. Pero hindi natuloy.
Because I myself did not show up. My golly. So, I caused him
a lot of inconvenience. The other party can file a motion in
court to ask for reimbursement of all his expenses because the
party himself who gave the notice did not show up.
Sec. 24. Failure of party giving notice to serve
subpoena. - If the party giving the notice of the
taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of
such failure does not attend, and if another party
attends in person or by counsel because he
expects the deposition of that witness to be taken,
the court may order the party giving the notice to
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 pay to such other party the amount of the
expenses incurred by him and his counsel in so
attending, including reasonable attorney’s fees.
(24a, R24)
This situation is different. I will notify the lawyer from Manila that
I am taking the deposition of certain persons here in Davao on
this date at this time. I was there but these witnesses did not
show up. Why? Because I forgot to have them subpoenaed.
So, I wasted again the time of the other party and his lawyer.
So, ask for reimbursement.
Sec. 25. Deposition upon written
interrogatories; service of notice and of
interrogatories.- A party desiring to take the
deposition of any person upon written
interrogatories shall serve them upon every other
party with a notice stating the name and the
address of the person who is to answer them and
the name or descriptive title and address of the
officer before whom the deposition is to be taken.
Within ten (10) days thereafter, a party so served
may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5)
days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross-
interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may
serve recross-interrogatories upon the party
proposing to take the deposition. (25, R24)
What are the types of deposition taking? Deposition
upon oral examination under Sec. 15. The other one is
deposition upon written interrogatories under Sec. 25. The
most common is oral examination. Sec. 25 is rarely used. Here,
the questions are not asked orally. They are prepared in
writing beforehand. Example: I would like to take the
deposition of Juan dela Cruz on written interrogatories before
a deposition officer. I will communicate with my opponent.
Notice. I will take the deposition of Mr. so and so on this date
at this time before deposition officer so and so. And these are
the questions I am going to ask. So, the questions are
prepared na. Ang tawag diyan direct interrogatories. Under
the law within 10 days you can also write to me. Alright, these
are also my questions. Yan naman ang cross-interrogatories.
And then, I have the option within 5 days to say alright in the
event that you ask questions and these are the answers,
meron din akong pahabol. I will also ask additional questions.
These are redirect interrogatories. Then, you have the option
within 3 days meron akong recross- interrogatories.
So, this type is more tedious. Yung oral mas madali
because they are recorded. But in some instances you have
no other choice. For example you will take the deposition of
somebody who is in the States before the Philippine Embassy
or the Philippine Consulate. It would be very expensive for you
to fly there and resort to deposition upon oral examinations.
The best is prepare written interrogatories. And send all these
questions to the DFA or the embassy.
Or yung earlier example ko about taking the
deposition of a witness in North Korea and it will be taken by
the appropriate judicial officer there by way of letters
rogatory. There is no other way but to prepare the questions
beforehand. The only available manner is resorting to Sec. 25.
Sec. 26. Officers to take responses and
prepare record. - A copy of the notice and copies
of all interrogatories served shall be delivered by
the party taking the deposition to the officer
designated in the notice, who shall proceed
promptly, in the manner provided by sections 17,
19 and 20 of this Rule, to take the testimony of the
witness in response to interrogatories and to
prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the
interrogatories received by him. (26, R24)
That is self explanatory.
Sec. 27. Notice of filing and furnishing copies.
- When a deposition upon interrogatories is filed,
the officer taking it shall promptly give notice
thereof to all the parties, and may furnish copies to
them or to the deponent upon payment of
reasonable charges therefor. (27, R24)
There is nothing much here.
Sec. 28. Orders for the protection of parties
and deponents. - After the service of
interrogatories and prior to the taking of the
testimony of the deponent, the court in which the
action is pending, on motion promptly made by a
party or a deponent, and for good cause shown,
may make any order specified in sections 15, 16
and 18 of this Rule which is appropriate and just or
an order that the deposition shall not be taken
before the officer designated in the notice or that it
shall not be taken except upon oral examination.
(28a, R24)
Are the provisions in Secs. 15, 16 and 18 on oral
examinations also applicable
to deposition upon written interrogatories? Yes. The same
protection is provided.
Are the mistakes in deposition taking fatal? Well, it depends
what is this error.
Sec. 29. Effect of errors and irregularities in
depositions. -
(a) As to notice. - All errors and irregularities in the
notice for taking a deposition are waived unless
written objection is promptly served upon the party
giving the notice.
There is defect in the notice. The defect is waived
unless upon receiving the notice there is objection that the
notice is defective. So, the error is automatically waived.
(b) As to disqualification of officer. - Objection to
taking a deposition because of disqualification of
the officer before it is to be taken is waived unless
made before the taking of the deposition begins or
as soon thereafter as the disqualification becomes
known or could be discovered with reasonable
diligence.
Suppose the deposition officer is the brother of the
party. So, disqualified but you did not object. The defect is
automatically waived.
(c) As to competency or relevancy of evidence. -
Objections to the competency of a witness or the
competency, relevancy, or materiality of
testimony are not waived by failure to make them
before or during the taking of the deposition,
unless the ground of the objection is one which
might have been obviated or removed if
presented at that time.
How about objections to the competency, relevancy
or materiality of the testimony? You failed to make the
objection during the deposition taking. This time, the defect is
not automatically waived. Why? In the first place the
deposition officer has no power to rule on the competency,
relevancy or materiality of the testimony. It is the court which
will rule on that later.
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 (d) As to oral examination and the other
particulars. - Errors and irregularities occurring at
the oral examination in the manner of taking the
deposition, in the form of the questions or answers,
in the oath or the affirmation, or in the conduct of
the parties and errors of any kind which might be
obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable
objection thereto is made at the taking of the
deposition.
Is the error or irregularity waived or not? It is waived.
As a general rule, failure to make any objection on the
manner in which the deposition is taken in the form of
questions or answers, they are deemed waived. Unless you
make the objection earlier.
(e) As to form of written interrogatories. -
Objections to the form of written interrogatories
submitted under sections 25 and 26 of this Rule are
waived unless served in writing upon the party
propounding them within the time allowed for
serving succeeding cross or other interrogatories
and within three (3) days after service of the last
interrogatories authorized.
So, the objections are deemed waived unless served
in writing upon the party propounding them.
(f) As to manner of preparation. - Errors and
irregularities in the manner in which the testimony
is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under sections
17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part
thereof is made with reasonable promptness after
such defect is, or with due diligence might have
been, ascertained. (29a, R24)
As a general rule, the irregularity is waived unless a
motion to suppress is made later. So, if you will notice, majority
of all the errors are waived if objection thereto is not promptly
made.
End of Rule 23.
Rule 24
DEPOSITIONS BEFORE ACTION PENDING APPEAL
(Rule of Discovery)
2 types of deposition taking:
1. deposition pending action (Rule 23)
2. deposition before action or pending appeal
(Rule 24)
In Rule 24 there is already a pending case in court, so
everything is based on a pending action. In Rule 24, this is
before a case is filed. This is also found in the Rules prior to
1997 but was found in another rule. It was called Perpetuation
of Testimony (Rule 134 of the old Rules of Court)
Example: there is a case I would like to file against B but for the
moment I cannot file it yet. So there is an expected case
between us in the future only there are certain things that I still
have to do. But if I file a case against B, I have some witnesses
who are all ready like A&C. the trouble is I leared lately that A
will die soon. He has cancer & C will have to leave for abroad,
never to come back. Hence, if I I will file the case, there are
no more witnesses.
By applying Rule 24, I will file a petiton before the
court known as Petition to Perpetuate the Testimony of C.
Even iv there is as yet no case, I will just file a petiton under
Rule 24. If I can prove that the testimony would be relevant or
important the court will issue an order allowing me to take
deposition in advance.
Section 1. Depositions before action; petition. A
person who desires to perpetuate his own
testimony or that of another person regarding any
matter that may be cognizable in any court of the
Philippines, may file a verified petition in the court
of the place of the residence of any expected
adverse party.
Q: where will you file it:
A: in the cour of the palce of residence of an y expected
adverse party because there is still no case. So you have to
file an independent petition under Rule 24.
Section 2. Contents of petition. The petition shall
be entitled in the name of the petitioner and shall
show:
(a) That the petitioner expects to be a party to an
action in a court of the Philippines but is presently
unable to bring it or cause it to be brought;
(b) The subject matter of the expected action
and his interest therein;
(c) The facts which he desires to establish by the
proposed testimony and his reasons for desiring to
perpetuate it;
(d) The names or a description of the persons he
expectes will be adverse parties and their
addresses so far as known; and
(e) The names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and shall ask
for an order authorizing the petitioner to take the
depositions of the persons to be examined named
in the petition for the purpose of perpetuating their
testimony.
Section 3. Notice and Service. The petitioner shall
serve a notice upon each person named in the
petition as an expected adverse party, together
with a copy of the petition, stating that the
petitioner will apply to the court, at a time and
place named therein, for the order described in
the petition. At least twenty (20) days before the
date of hearing, the court shall cause notice
thereof to be served on the parties and
prospective deponents in the manner provided for
service of summons. (3a, R134)
Section 4. Order and examination. If the court is
satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination
and whether the depositions shall be taken upon
oral examination or written interrogatories. The
depositions may then be taken in accordance with
Rule 23 before the hearing. (4a, R134).
If the petition is granted, the court will allow the deposition of
these people to be taken & they are taken simply by following
Rule 23.
Section 5. Reference to court. For the purpose of
applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in
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 which the action is pending shall be deemed to
refere to the court in which the petition for such
deposition was filed. (5a, R134).
Section 6. Use of deposition. If a deposition to
perpetuate testimony is taken under this Rule, or if,
although not so taken, it would be admissible in
evidence, it may be used in any action involving
the same subject matter subsequently brought in
accordance with the provisions of sections 4 and 5
of Rule 23. (6a, R134).
Q: how do you use the perpetuation of testimony?
A: the same use of an ordinary deposition – for
impeachment, for any other purpose like the
witness is already dead (Rule 23), so the rule
under Rule 23 is also applicable to Rule 24.
Section 7. Depositions pending appeal. If an
appeal has been taken from a judgment of a
court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the time
therefor has not expired, the court in which the
judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their
testimony for use in the event of further
proceedings in the said court. In such case the
party who desires to perpetuate the testimony may
make a motion in the said court for leave to take
the depositions, upon the same notice and service
thereof as if the action was pending therein. The
motion shall state:
(a) the names and addresses of the person to be
examined and the substance of the testimony
which he expects to elicit from each: and
(b) the reason for perpetuating their testimony.
If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the
depositions to be taken, and thereupon the
depositions may be taken and used in the manner
and under the same conditions as are prescribed
in these Rules for depositions taken in pending
actions. (7a, R134).
Q: what is deposition pending appeal?
A: there is a case already on appeal
Example: there is a case between A & B. A lost. After he
received a copy of the decision, he discovered a material
witness whom he failed to present. So this is a newly
discovered evidence. Had A known of his existence, he would
have won the case. So A will file a motion for new trial based
on this newly discovered evidence. If the motion is granted,
there will be a new trial.
If the motion is denied, A will appeal. While waiting
for the decision of the court, the witness tells him that he will be
leaving for Europe & will not come back. So A will use Section
7. he will file a motion asking to take the deposition of a
witness pending appeal in the event that his motion for new
trial is granted, ‘coz the witness has to go & cannot wait for the
new trial.
If I win the appeal, the case will go back. I can
present the testimony because by that time he may already
be dead. In effect, it’s like a deposition before appeal. So it is
also perpetuating the testimony of a possible witness, in the
event the appeal is decided in your favor.
End of Rule 24.
Rule 25
INTERROGATORIES TO PARTIES
We will now go to the second mode of discovery -
interrogatories to parties. But before we take up Rule 25, I
want you not to be confused with Rule 25 and Sec. 25 of Rule
23 which is entitled Deposition upon written interrogatories.
Going back to Rule 23, what are the types of deposition
taking?
(1) Deposition upon oral examination; and
(2) Deposition upon written interrogatories.
In written interrogatories, questions are already prepared
beforehand and they are going to be submitted to a
deposition officer who will propound the questions to the
deponent and record the answers under oath. The best
example is if you want to take the deposition of somebody
abroad through a deposition officer abroad. Now, of course, it
is very expensive to go there and conduct oral examination.
So, the best thing is to resort to deposition upon written
interrogatories.
That is not the same as interrogatories to parties
under this rule. After we are through with this rule, we are
going to distinguish one from the other. Before we tackle the
sections one by one, I will give you an idea how this thing
works. For example, I will file a case against X and he files an
answer. Of course, he has his affirmative defenses which are
statements of ultimate facts. Walang details, no evidentiary
facts. But I am interested to find out what are these evidentiary
facts. So, I will apply Rule 25. I will write a letter addressed to X
under Rule 25 and direct him to answer the following
questions: (1) Mr. X, one of your defenses is this, how will you
prove that? (2) Who will be your witness? (3) What document
will you present? Or, Mr. X, you have been in continuous
possession of this piece of land for 30 years, would you kindly
narrate the improvements that you introduced in the
property? What year did you introduce them? Etc... Yan ang
evidentiary facts. And under the law, you are obliged to
answer that. And your answer must be under oath. So,
bistado di ba. I can compel you to reveal the details.
And that process is called written interrogatories to
parties. Di para na ring deposition? I can also ask the same
questions through deposition taking under Rule 23. Why do I
have to resort to Rule 25? The trouble is under Rule 23, kukuha
pa ako ng deposition officer and I will have to course
everything to him. Dito, walang deposition officer.
Deretsahan na ito. I will ask you a question and you will
answer me. So, less expensive. But take note, under Rule 25,
you can only ask questions your opponent. You cannot ask
questions to a stranger. Unlike in Rule 23, you can take the
deposition of any person whether a party or not. In Rule 23,
the questioning is direct. Plaintiff questions the defendant.
Defendant questions the plaintiff. So, these are the differences
between deposition upon written interrogatories and
interrogatories to parties. So, more or less, this is how it works
out.
Rule 23, section 25 Rule 25
Everyting is coursed No deposition officer, I
through a deposition ask the questions myself
officer
Yo can take a Can only ask questions
depositon of any from an opponent, NOT
person whether a party from a stranger
or not
Sec. 1. Interrogatories to parties; service
thereof. - Under the same conditions specified in
section 1 of Rule 23, any party desiring to elicit
material and relevant facts from any adverse
parties shall file and serve upon the latter written
interrogatories to be answered by the party served
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 or, if the party served is a public or private
corporation or a partnership or association, by any
officer thereof competent to testify in its behalf.
(1a)
If I want to elicit material and relevant facts from the
adverse party, I will file in court and serve upon you written
interrogatories to be answered by you. If the defendant is a
corporation, just like in deposition, the officer of the partnership
or corporation is the one who will answer.
Q: Is leave of court required?
A: Sec. 1 says under the same conditions specified in
section 1 of Rule 23. Meaning, the rule on interrogatories
is under the same conditions as in deposition. So, after
jurisdiction has been acquired over the person of the
defendant but there is still no answer, leave of court is
necessary. But if an answer has already been served,
leave of court is not necessary. So, the same conditions.
Sec. 2. Answer to interrogatories. - The
interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person
making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party
submitting the interrogatories within fifteen (15)
days after service thereof, unless the court, on
motion and for good cause shown, extends or
shortens the time. (2a)
If I send the questions to you, you are obliged to
answer them in writing and serve me a copy of your answers.
And take note signed and sworn to. Meaning, verified. And
you are generally given 15 days to answer my interrogatories.
Sec. 3. Objections to interrogatories. -
Objections to any interrogatories may be
presented to the court within ten (10) days after
service thereof, with notice as in case of a motion;
and answers shall be deferred until the objections
are resolved, which shall be at as early a time as is
practicable. (3a)
Suppose my questions are objectionable. I ask you a
question and you think that the questions are unfair. Like they
are not relevant or they ask confidential matters. So, under
the rules, you will object. You go to the court and object. The
court will be the one to determine whether you are bound to
answer or not.
Sec. 4. Number of interrogatories. - No party
may, without leave of court, serve more than one
set of interrogatories to be answered by the same
party. (4)
Q: Can I send interrogatories to you which you answered
and after a month padala na naman ako?
A: As a general rule, without court permission, hindi
puwede. You can do it only once. So, you better ask
everything you have to ask.
Sec. 5. Scope and use of interrogatories. -
Interrogatories may relate to any matters that can
be inquired into under section 2 of Rule 23, and the
answers may be used for the same purpose
provided in section 4 of the same Rule. (5a)
Q: What can be asked in Rule 25?
A: Any matter that can be inquired into under Sec. 2 of
Rule 23. So the same things that you can ask in deposition
taking. Like matters which are relevant but not privileged.
And the answers can be used for what purpose? For the
same purpose provided in Sec. 4 of Rule 23. Since
interrogatories refer to the answer of the adverse party,
you can use it for any purpose under Rule 23. For
impeachment or to prove an admission by your
opponent.
Sec. 6. Effect of failure to serve written
interrogatories. - Unless thereafter allowed by the
court for good cause shown and to prevent a
failure of justice, a party not served with written
interrogatories may not be compelled by the
adverse party to give testimony in open court, or to
give a deposition pending appeal. (n)
This provision is new. And this is a very controversial
provision. And up to now, I have not known a case where this
has been applied so far. But this new provision cannot be
understood unless you take up first evidence where you can
compel the adverse party to testify. This is actually related to
Rule 132, Sec. 10 (e) of the Rules of Evidence. So, in order not
to cause complication and confuse you in the meantime, I
would rather not discuss this. Even lawyers and judges cannot
agree on how to apply this controversial provision.
So, going back to my first question in the beginning of
this rule: How do you distinguish deposition upon written
interrogatories under Rule 23 with written interrogatories to
parties under Rule 25?
Rule 23 Rule 25
there is a deposition officer there is no deposition
officer
The questions are prepared The questioning is direct.
beforehand. They are Plaintiff questions
submitted to the deposition defendant. Defendant
officer who will ask the questions the plaintiff.
deponent the questions There is no third person
and he will record the who will intervene.
answers.
The second difference is It only applies to the
deposition upon written parties
interrogatories can be
made on any person
whether a party to the
case or not
End of Rule 25.
Rule 26
ADMISSION BY ADVERSE PARTY
This is more popularly known as request for admission.
Before we take up Rule 26, I will show you how this mode is
applied. It is similar to Rule 25. Plaintiff sends a set of questions
to defendant who will answer in writing and under oath. But
the difference is on how the questions are framed. In request
for admission, normally the questions that you ask are
answerable by yes or no. Example: I want you to admit
certain evidentiary facts. Mr. Defendant, do you admit that
when you borrowed money from me Mr. Juan dela Cruz was
present? Do you admit that when the loan fell due I went to
your house and talked to you and asked you to pay? Do you
admit that on that ocassion this is what you promised me?
Or, there are some documents that I want you to
admit because remember I am only obliged to plead
actionable documents. I do not know whether you will admit
the genuineness and due execution of these actionable
Page 176 of 296
documents. So, para malaman ko, I will apply Rule 26. I will
present to you copies of these documents. Do you admit that
this document is genuine? And under the rules, you are also
obliged to answer in writing and under oath. So, you will say I
admit this. I do not admit that, etc. So, if you are not
admitting, I will prove that they are genuine.
So, how to distinguish Rule 26 from Rule 25 is how the questions
are framed. Because here, you are boxing the adverse party
with a yes or no answer. Puro yes or no lang ang sagot niya.
So, mas mabilis. Ang similarity is that both involve direct
questioning by the party to each other.
Sec. 1. Request for admission. - At any time
after issues have been joined, a party may file and
serve upon any other party a written request for the
admission by the latter of the genuineness of any
material and relevant document described in and
exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered
with the request unless copies have already been
furnished. (1a)
I will send you a written request for your admission of
the genuineness of any material and relevant document
described in and exhibited or the truth of any material and
relevant matter of fact set forth in the request.
Q: When can you use Rule 26?
A: At any time after issues have been joined.
Q: When are issues joined?
A: When the answer is already filed.
Therefore, Rule 26 cannot be applied until the answer has
already been filed. This differentiates it from the previous rule.
Q: Can written interrogatories be sent when there is still no
answer served?
A: Yes, provided there is leave of court. When there is
already an answer, leave of court is no longer necessary.
Whereas in Rule 26, there must really be an answer filed
by the defendant before you can use this because the
law says at any time after the issues have been joined.
Secondly, leave of court is totally not necessary in Rule 26.
In Rules 23 and 25, leave of court may or may not be
required. But in Rule 26, leave of court is totally not
required.
Sec. 2. Implied admission. - Each of the
matters of which an admission is requested shall
be deemed admitted unless, within a period
designated in the request, which shall not be less
than fifteen (15) days after service thereof, or within
such further time as the court may allow on
motion, the party to whom the request is directed
files and serves upon the party requesting the
admission a sworn statement either denying
specifically the matters of which an admission is
requested or setting forth in detail the reasons why
he cannot truthfully either admit or deny those
matters.
Objections to any request for
admission shall be submitted to the court by the
party requested within the period for and prior to
the filing of his sworn statement as contemplated in
the preceding paragraph and his compliance
therewith shall be deferred until such objections
are resolved, which resolution shall be made as
early as practicable. (2a)
Once I send you a written request for admission
under rule 26, under sec. 2 you are given a period not less than
15 days to answer me in writing under oath where you will say
you admit or you are not admitting because of this reason. Or
why you cannot truthfully admit or deny those matters.
Q: What is the difference between this and the answer in a
pleading?
A: The answer is the denial or admission of ultimate facts.
This is a denial or admission of evidentiary facts.
Q: Suppose I send you a request for admission and after
receiving it, you threw it away. You ignored my request.
What is the effect?
A: Ander sec. 2, everything that I requested is deemed
impliedly admitted. So, if you will not answer my request,
under the law, each of the matters of which an admission
is requested shall be deemed admitted.
There is one interesting case on this issue. Suppose, I
attach to my complaint an actionable document and in your
answer, you denied the genuineness and due execution of the
actionable document under Rule 8. And your denial is under
oath. So, there is a valid denial. Later on the plaintiff send you
a request for admission under Rule 26 where he attached the
same document. He asks whether you admit the genuineness
and due execution of the document. Ikaw naman, you ignore
it. The question is: Is the genuineness and due execution of
the actionable document deemed admitted for failure to
respond under Rule 26? Because the defendant can argue
why do I have to deny it under Rule 26 when I already denied
it under rule 8? So, there is no need for me to deny it all over
again. How many times pala do I have to deny it? Sabi
naman ng plaintiff, even if you denied it under Rule 8, under
Rule 26 you are obliged to deny it all over again. Otherwise,
you are deemed to have admitted the genuineness and due
execution of the document. Who is right between the two?
The SC said in an old case before that if the same
matter which has already been denied in the pleading is
asked again under Rule 26, you must deny it all over again.
But the SC has abandoned it in the case of:
PO vs.. CA
164 SCRA 688
The SC said: If a matter which is
alleged in a pleading is already denied
under the rules on pleadings, and the same
matter is asked again and is the subject
matter of a request for admission under Rule
26, there is no need for the other party to
deny it all over again. Otherwise, it
becomes pointless, useless and redundant.
So, the party is under no obligation to deny
for the second time what he has already
denied in his pleading. It only covers
matters which are not found in the
pleading.
Sec. 3. Effect of admission. - Any admission
made by a party pursuant to such request is for the
purpose of the pending action only and shall not
constitute an admission by him for any other
purpose nor may the same be used against him in
any other proceeding. (3)
That is more of evidence.
Q: Under Rule 26, can you use that admission in other cases?
A: No, it is valid only for this case.
Page 177 of 296
 Sec. 4. Withdrawal. - The court may allow
the party making an admission under this Rule,
whether express or implied, to withdraw or
amend it upon such terms as may be just. (4)
Q: May an admission under Sec. 4 whether
express or implied be withdrawn or amended?
A: Yes, upon court order. You can ask for the
withdrawal or amendment. But the court must
agree.
Sec. 5. Effect of failure to file and serve
request for admission. - Unless otherwise allowed
by the court for good cause shown and to
prevent a failure of justice, a party who fails to
file and serve a request for admission on the
adverse party of material and relevant facts at
issue which are, or ought to be, within the
personal knowledge of the latter, shall not be
permitted to present evidence on such facts. (n)
If you will notice this is another new provision. This rule
has a similar nature as the last section in Rule 25. This is another
controversial provision introduced by the new rule where the
exact application is yet not known. You know what is says? It
says if I know a fact and I know that it is a fact that you will
admit, I am obliged under Rule 26 to send a request for
admission. If I do not send a request for admission, the law also
says I will not also be allowed to prove it during the trial. It
practically compels me to apply Rule 26. Mandatory.
Otherwise, if I will not apply Rule 26, I cannot prove anything
even if I expect you to admit. Delikado, no.
Q: Suppose I will send a request for admission but instead
of addressing it to the party, I addressed it to the lawyer.
Is the party bound by the request for admission under Rule
26?
A: SC said no. You should address it to the party himself.
Not to the lawyer.
Q: But is it not a fact that under Rule 13, everything should
be coursed through the lawyer?
A: That is true. Unless the law requires the party himself to
do an act. And in a request for admission, the one who is
requested to make an admission is not the lawyer but the
party. That was the ruling in the case of:
REBONERIA vs. CA
216 SCRA 607
A request for admission should be
served upon the party, not counsel. The
general rule under Rule 13 cannot apply
where the law expressly provides that notice
must be served upon a definite person. In
such cases, service must be made directly
upon the person mentioned in the law and
not to any other in order that the notice
may be valid.
PSCFC FINANCIAL CORP. vs.. CA
216 SCRA 838
A request for admission was sent to
a party. The party hired a lawyer and told
his lawyer to answer it for him. The lawyer
made the reply under Rule 26 under oath.
The other party complaint on why the
lawyer was the one answering. it should be
the client who should answer and not his
lawyer. Is there a valid answer to the
request for admission considering that it was
the lawyer who made the written sworn
answer and not the client?
The SC said there is a valid answer
because the client can always delegate it
to his lawyer. The lawyer has the authority to
answer based on his authority as a lawyer
citing Rule 138 of the rules of court about
the authority of the lawyer to bind his client
on the principle of agency. The lawyer
automatically becomes the agent of the
party.
And the SC further said: On the
assumption that the lawyer was not
authorized to file the answer under Rule 26,
the one who should complain is his client.
Not you. If his client is not even
complaining, why would you?
Q: So, in Reboneria, to whom should you direct your request
for admission?
A: The SC said the client, meaning the party.
Q: In the case of PSCFC, who should answer?
A: Of course, the client. But he can delegate it to his lawyer.
End of Rule 26.
Rule 27
PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS
Sec. 1. Motion for production or inspection;
order. - Upon motion of any party showing good
cause therefor, the court in which an action is
pending may:
(a) order any party to produce and permit the
inspection and copying or photographing, by or
on behalf of the moving party, of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action and
which are in his possession, custody or control; or
(b) order any party to permit entry upon
designated land or other property in his possession
or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any
designated relevant object or operation thereon.
The order shall specify the time, place and manner
of making the inspection and taking copies and
photographs, and may prescribe such terms and
conditions as are just. (1a)
There is a case between me and you involving
reconciliation of records. Accounting. I know that you have in
your possession several receipts, invoices, contracts which you
are going to present during the trial. I want to get hold of and
inspect these documents and if possible, to xerox-copy them.
And of course, since these are not actionable documents, you
have no obligation to show them in your pleadings. So, I want
to see these books, photographs, accounts, objects which I
know you will present during the trial. If I ask you to show me
these things, I don’t think you will accommodate me.
Q: What is my remedy?
A: I will apply Rule 27. I will file a motion in court saying you
are in possession of all these things and I would like to see
them, inspect them and have them copied. And under
Rule 27, provided they are relevant not privileged, the court
will issue an order compelling you on a specified time and
place to bring them for purposes of inspection, copying and
Page 178 of 296
 photographing. You have no choice but to show me all
these objects.
It can also apply in a situation where we are fighting
over the ownership of a piece of land. But you have an
advantage, you are the possessor. So, you can describe the
property properly. You know all the improvements, the
boundaries, the terrain. Ako, outsider. I would like also to see
the property and inspect it. Anyway, we are fighting over it. I
want to inspect, photograph the improvements and I want to
bring a surveyor to look at the property and have it surveyed.
If I’d ask you, you wouldn’t allow me so I would resort to Rule
27. I will file a motion in court to permit me to enter the land
for purposes of inspecting, measuring, surveying or
photographing the property. And the court will issue an order
specifying the time, place and the manner of inspection.
Now, I will have an access to the documents, things, land, etc.
which are under your control or possession.
What are the requisites for the application of Rule 27?
1. There must be a motion (leave of
court) filed by a party showing good
cause therefor.
2. That notice of the motion must be
given to all the parties.
3. The motion must sufficiently describe
the document or thing sought to be
produced.
4. The document or thing must contain
material to the pending action.
5. That document or thing must not be privileged.
6. That document or thing must be in the
possession of the adverse party, or at
least in his control.
Those are the requisites for the application of mode
of discovery of production and inspection of document and
other things.
Rule 27 should not be confused with Rule 21 on
subpoena duces tecum. What is the difference between Rule
27 and subpoena duces tecum under Rule 21?
Those are the distinctions between the process of
subpoena duces tecum and Rule 27, the fourth mode of
discovery.
End of Rule 27.
Rule 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
This is the fifth and last mode of discovery. Let us take
the first 2 sections together.
Sec. 1. When examination may be ordered.
- In an action in which the mental or physical
condition of a party is in controversy, the court in
which the action is pending may in its discretion
order him to submit to a physical or mental
examination by a physician. (1)
Sec. 2. Order for examination. - The order for
examination may be made only on motion for
good cause shown and upon notice to the party to
be examined and to all other parties, and shall
specify the time, place, manner, conditions and
scope of the examination and the person or
persons by whom it is to be made. (2)
This mode of discovery, the physical and mental
examination of persons applies in civil actions where the
physical or mental condition of a party to the case is in
controversy. Example: in a case for annulment of marriage on
the ground of psychological incapacity. Under the Family
Code, however, the state of psychological incapacity must
not have been existing only now for the first time. It must have
existed at the time of the marriage. So, there is the allegation
that there was already psychological incapacity existing at
the time of marriage and it is continuous.

Another example is annulment on the ground of

Rule 27 Rule 21 subpoena duces
tecum
essentially a mode of for compelling production
discovery of evidence
you only want to You are already asking
discover something that the evidence be
brought to court
is limited to parties in may be directed to any
the action person whether a party or
I cannot use Rule 27 to not
inspect the property of Subpoena duces tecum
a stranger. He must be can be used to compel a
a party to the case. witness to bring to court
documents under his
control although he is not
a party to the action.
You must file a motion You do not need a motion
under Rule 27. or to copy furnish the
other party in asking for
subpoena duces tecum.
You simply write the clerk
of court and request him
to issue a subpoena
duces tecum. It can even
be filed ex-parte. There is
no need to furnish the
adverse party a copy.
impotency. The court can issue an order to subject the party
to undergo physical or medical examination by a doctor to
test whether the allegation is true or not.
Or in an annulment of contract on the ground that
when he entered into the contract he was mentally unstable
therefore there was lack of free consent.
It can also apply to simple actions for damages. A
damage suit arising from a vehicular collision. And even if the
plaintiff had recovered, he was already partially disabled.
Thus, he can no longer go back to his work. If I am the
defendant and I believe that you are merely exaggerating the
extent of your injury so that your claim for damages will be
higher, I will apply Rule 28. Yung doctor mo will testify for you.
Diskumpiyado ako niyan. I will ask the court to issue an order
for you to undergo physical examination by another doctor.
So that we will know whether your claim is really valid or not.
So, this is how you apply this mode of discovery.
What are the requisites for the application of Rule 28?
(1) The physical or mental condition of
a party must be in controversy in the action.
(2) Under Sec. 2, there must be a
motion showing good cause which must be
filed. And;

Page 179 of 296

 (3) Notice of the motion must be
given to the party to be examined and to
all other parties. So, there must be a
motion. Hindi puwede yung without a court
order.
If you try to go back to the modes of discovery
starting from deposition, you will be asked this question: What
modes of discovery require court approval or leave of court?
What modes of discovery do not require leave of court?
(1) Sa deposition, depende whether there is
already an answer served.
(2) Same with interrogatories to parties, leave
of court may or may not be necessary.
(3) Rule 26 on request for admission, it is totally
not required.
(4) Rule 27, production and inspection of
documents, leave of court is 100% required. And
finally,
(5) Rule 28, physical or mental examination of
parties, leave of court is also 100% required.
Sec. 3. Report of findings. - If requested by
the party examined, the party causing the
examination to be made shall deliver to him a
copy of a detailed written report of the examining
physician setting out his findings and conclusions.
After such request and delivery, the party causing
the examination to be made shall be entitled upon
request to receive from the party examined a like
report of any examination, previously or thereafter
made, of the same mental or physical condition. If
the party examined refuses to deliver such report,
the court on motion and notice may make an
order requiring delivery on such terms as are just,
and if a physician fails or refuses to make such a
report the court may exclude his testimony if
offered at the trial. (3a)
Sec. 4. Waiver of privilege. - By requesting
and obtaining a report of the examination so
ordered or by taking the deposition of the
examiner, the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has
examined or may thereafter examine him in
respect of the same mental or physical
examination. (4)
John is subjected to examination by a doctor upon motion by
Rolly under Rule 28. John asks for a copy of the finding after
examination. When John asks for the finding, rolly can also ask
John’s examination by the personal docotor of John,
previously made or thereafter.
The doctor cannot be compelled to relay what the
patient told him even by subpoena duces tecum. So if the
doctor refuses to deliver such report, then under section 3, he
cannot testify. He cannot give evidence.
Also, once a party asks for a report of the
examination, he automatically wiaves the privilege of patient-
physician relationship. So if he doesn’t want to waive the
privilege, he should not ask a copy of the report of the
physician.
Going back to the different modes of discovery,
when is leave of court required & not required?
Required Not required
Deposition – no answer filed Deposition – answer
yet already filed
- before
action or
pending
appeal
Interrogatories – no answer Interrogatories –
filed yet answer filed already
Production or inspection of Request for admission
documents or things
Physical & mental
examination of persons
End of Rule 28.
Rule 29
REFUSAL TO COMPLY WITH
MODES OF DISCOVERY
Rule 29 is still part of our study on the modes of
discovery. The five modes of discovery of the rules are not only
sanctioned or allowed by the rules, they are also encouraged.
Lawyers should avail of the modes of discovery because they
are very helpful in determining the issues and will even provoke
a settlement if you believe na wala kang laban. There were
circulars by the SC, example Circular No. 13 in 1987 where the
SC said lawyers and parties should be encouraged to avail of
discovery procedures provided in the rules. This is a neglected
area in our adversarial process. Its use would greatly expedite
the trial of cases.
The modes of discovery are very popular in the
United States. Ninety-nine percent of lawyers in the US avail of
these procedures. In the Philippines, it is the exact opposite.
Filipino lawyers rarely resort to modes of discovery despite the
admonition by the SC. Siguro, it is our culture. As much as
possible we want to keep things to ourselves.
Remember DBP vs.. CA when we were discussing pre
trial where Justice Narvasa complained of the courts and the
parties to avail 100% of the process of pre-trial? There is
another case naman involving the modes of discovery where
the same Justice bitterly complained on the failure of lawyers
and judges to appreciate discovery under the Rules.
REPUBLIC vs.. SANDIGANBAYAN
204 SCRA 212
It appears to the court among far
too many lawyers and not a few judges,
there is if not a regrettable unfamiliarity with
the modes of discovery. xxx It requires the
parties to play the game with the cards on
the table so that the possibility of
settlements before trial is measurably
increased. The various modes of instruments
of discovery are meant to serve 2 purposes:
(1) As a device along with the pre-trial
hearing to narrow and clarify the basic
issues between the parties, and (2) as a
device of ascertaining the facts relative to
those issues. The discovery rules are to be
accorded broad and literal treatment. No
longer can the time-honored cry of fishing
Page 180 of 296
 expedition serve to preclude a party from
inquiring into the facts underlining his
opponent’s case. Mutual knowledge of
relevant facts gathered by both parties is
essential to proper litigation. To that end,
one party may compel the other to disclose
whatever fact he has in his possession.
Sec. 1. Refusal to answer. - If a party or other
deponent refuses to answer any question upon
oral examination, the examination may be
completed on other matters or adjourned as the
proponent of the question may prefer. The
proponent may thereafter apply to the proper
court of the place where the deposition is being
taken, for an order to compel an answer. The
same procedure may be availed of when a party
or a witness refuses to answer any interro-gatory
submitted under Rules 23 or 25.
If the application is granted, the
court shall require the refusing party or deponent
to answer the question or interrogatory and if it also
finds that the refusal to answer was without
substantial justification, it may require the refusing
party or deponent or the counsel advising the
refusal, or both of them, to pay the proponent the
amount of the reasonable expenses incurred in
obtaining the order, including attorney’s fees.
If the application is denied and the
court finds that it was filed without substantial
justification, the court may require the proponent
or the counsel advising the filing of the application,
or both of them, to pay to the refusing party or
deponent the amount of the reasonable expenses
incurred in opposing the application, including
attorney’s fees. (1a)
If a party or deponent refuses to answer a question
on oral examination or written interrogatories under Rule 25,
you can go to court to get an order to compel him to answer.
And he can be held liable for the reasonable expenses
incurred in obtaining the order including attorney’s fees.
Sec. 2. Contempt of court. - If a party or
other witness refuses to be sworn or refuses to
answer any question after being directed to do so
by the court of the place in which the deposition is
being taken, the refusal may be considered a
contempt of that court. (2a)
That is also a continuation of Sec. 1.
Sec. 3. Other consequences. - If any party
or an officer or managing agent of a party refuses
to obey an order made under section 1 of this Rule
requiring him to answer designated questions, or
an order under Rule 27 to produce any document
or other thing for inspection, copying, or
photographing or to permit it to be done, or to
permit entry upon land or other property, or an
order made under Rule 28 requiring him to submit
to a physical or mental examination, the court
may make such orders in regard to the refusal as
are just, and among others the following:
(a) An order that the matters regarding which the
questions were asked, or the character or
description of the thing or land, or the contents of
the paper, or the physical or mental condition of
the party, or any other designated facts shall be
taken to be established for the purposes of the
action in accordance with the claim of the party
obtaining the order;
(b) An order refusing to allow the disobedient
party to support or oppose designated claims or
defenses or prohibiting him from introducing in
evidence designated documents or things or items
of testimony, or from introducing evidence of
physical or mental condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
judgment by default against the disobedient party;
and
(d) In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest of
any party or agent of a party for disobeying any of
such orders except an order to submit to a
physical or mental examination. (3a)
These are other consequences in addition to Sec. 1.
Aside from violating Rule 27 or Rule 28, it can even cost you
your case. The disobedient party will be penalized. His
complaint will be stricken out if he is the plaintiff. Or if he is the
defendant, judgment of default can be rendered against him.
That is the worst penalty for refusing to cooperate.
Sec. 4 Expenses on refusal to admit. - If a
party after being served with a request under Rule
26 to admit the genuineness of any document or
the truth of any matter of fact, serves as sworn
denial thereof and if the party requesting the
admissions thereafter proves the genuineness of
such document or the truth of any such matter of
fact, he may apply to the court for an order
requiring the other party to pay him the reasonable
expenses incurred in making such proof, including
attorney’s fees. Unless the court finds that there
were good reasons for the denial or that
admissions sought were of no substantial
importance, such order shall be issued. (4a)
Sec. 4 is a sanction for Rule 26, request for admission.
That when you refuse to admit something which later on is
proven to be true, you can be held liable for expenses and
attorney’s fees for refusing to admit something which turned
out to be true. It will really compel you to admit. If it is
something true, you might as well admit. Do not put the other
party into trouble for you might be held liable for the expenses
later on.
Sec. 5 Failure of party to attend or serve
answers. - If a party or an officer or managing
agent of a party willfully fails to appear before the
officer who is to take his deposition, after being
served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25
after proper service of such interrogatories, the
court on motion and notice, may strike out all or
any part of any pleading of that party, or dismiss
the action or proceeding or any part thereof, or
enter a judgment by default against that party,
and in its discretion, order him to pay reasonable
expenses incurred by the other, including
attorney’s fees. (5)
Q: Again, what is the penalty if a party fails to appear
before the deposition officer?
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 A: I will take the deposition of my opponent but he failed
to appear. Or, he is served with interrogatories and he
refused to answer under Rule 25.
He can be penalized with the ultimate penalty of
dismissal of the case or judgment by default. You
automatically lose the case for not cooperating.
Normally, default judgment applies only to a
defendant who failed to file an answer. But Rule 29 allows a
default judgment even if you filed an answer for failure to
comply with the modes of discovery. There were two recent
cases on Sec. 5.
INSULAR LIFE vs.. CA
238 SCRA 88 (1994)
The defendant sent interrogatories
to plaintiff under Rule 25. The plaintiff failed
to answer. The court directed the plaintiff to
answer but still plaintiff did not answer.
Therefore, defendant moved for the
dismissal of the complaint under Sec. 5. The
trial court refused to dismiss the case
holding that substantial justice would be
better served if the case where to be
decided on the merits. Despite the refusal
of the plaintiff to cooperate, the judge still
refused to dismiss the case. So, the
defendant went to the SC contending that
the trial court committed grave abuse of
discretion in refusing to apply Sec. 5 of Rule
29. The issue here is whether it is mandatory
for the court to dismiss the case on the
ground of failure to cooperate.
It would seem that it is not
mandatory because the court said: The
court may opt not to apply Sec. 5.
Meaning, it has to be done on a case to
case basis. The court may apply Sec. 5 or it
may decide to relax the rule. The SC said
there was no grave abuse of discretion. The
matter of how and when the sanctions in
Sec. 5 should be applied is one that
primarily rests in the sound discretion of the
court where the case is having all these in
mind the paramount and overriding interest
of justice. For while the modes of discovery
are intended to attain the resolution of
litigations with great expediency, they are
not contemplated, however, to be the
ultimate causes of justice. It behooves trial
courts to examine well the circumstance of
each case and to make their considered
determination thereafter. It is only in clear
cases of grave abuse of that discretion
where appellate courts can interfere with
their judgments.
The ruling was reiterated in the recent case of:
SANTIAGO LAND DEVT. CO. vs.. CA
July 9, 1996, 258 SCRA 535
On November 20, 1990, petitioner SLDC
served written interrogatories on respondent
Komatsu Industries' counsel. The
interrogatories were not, however,
answered by the respondent by reason of
which petitioner SLDC filed a motion to
dismiss the action with prejudice based on
Sec. 5, Rule 29 of the Rules of Court.
The SC held: The dismissal of the civil action
would allegedly be the proper sanction to
respondent's refusal to answer the
interrogatories. Moreover, justice would
allegedly be promoted considering that the
civil action was purportedly without basis
and was purely for harassment.
Section 5, Rule 29 of the Rules of Court
warrants the dismissal of the complaint
when the plaintiff fails or refuses to answer
the written interrogatories. If plaintiff fails or
refuses to answer the interrogatories, it may
be a good basis for the dismissal of his
complaint for non-suit unless he can justify
such failure or refusal. It should be noted
that it is discretionary on the court to order
the dismissal of the action.
And finally, one last case on modes of discovery is the case of:
FORTUNE CORP. vs.. CA
229 SCRA 355
The question asked is: Are the 5
modes of discovery cumulative or
exclusive? Can a party avail of more than
one mode? Or, are you limited to only one
or 2 modes of discovery? The SC said they
are cumulative as opposed to alternative or
mutually exclusive. Under the present rules,
the fact that a party has resorted to a
particular method of discovery will not bar
subsequent use of other discovery devices
as long as the party is not attempting to
circumvent a ruling of the court or to harass
the other party.
Sec. 6. Expenses against the
Republic of the Philippines. - Expenses and
attorney’s fees are not to be imposed upon the
Republic of the Philippines under this Rule. (6)
That is self explanatory.
So, we are now through with the subject of mode of discovery
from Rule 23 to Rule 29. Take note that under Rule 29, there
are possible sanctions, the worst of which is you lose the case
automatically. If you are the plaintiff, your case will be
completely dismissed. If you are the defendant, a judgment
of default will be rendered against you. So, this is one instance
when a judgment by default can be rendered against a
defendant who filed an answer. Because normally, only
judgments by default are rendered only against a defendant
who failed to file an answer. But here, obviously, the
defendant filed an answer. But he is being penalized for
refusal to comply with the mode of discovery. So, the ultimate
sanctions are found in Rule 29.
End of Rule 29.
Rule 30
TRIAL
Sec. 1. Notice of trial. - Upon entry of a case
in the trial calendar, the clerk shall notify the
parties of the date of its trial in such manner as
shall ensure his receipt of that notice at least five
(5) days before such date. (2a, R22)
You know very well that before a case can be
scheduled for trial, it must pass the pre-trial stage. If it is not
settled or terminated during the pre-trial, we will now go to the
next stage which is the trial. The clerk of court will issue notices
to the parties informing the parties of the date of the trial
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which notice must be issued at least 5 days before such date.
Actually, in real practice, it will even take more than a month.
To give you ample time to prepare for it.
Now, how do you define trial? Law dictionaries
define trial as an examination before a competent tribunal of
the facts or law put in issue in a case for the purpose of
determining such issue. In a trial, there is always a conflict
about something. There is always an issue where we cannot
agree. The issue is either an issue of fact or an issue of law.
Therefore, the purpose of a trial is for the court to resolve that
issue. Who is right and who is wrong?
Sec. 2. Adjournments and postponements. -
A court may adjourn a trial from day to day, and to
any stated time, as the expeditious and
convenient transaction of business may require,
but shall have no power to adjourn a trial for a
longer period than one month for each
adjournment, nor more than three months in all,
except when authorized in writing by the Court
Administrator, Supreme Court. (3a, R22)
Q: What do you mean by “A court may adjourn a trial from
day to day, and to any stated time, as the expeditious and
convenient transaction of business may require xxx”?
For example, normally when you receive a notice, which sets
the case for trial say on Feb. 25 & 26, chances are, you cannot
really finish the trial in 2 days. Because we have to hear the
plaintiff, then the defendant. So, pag-hindi matapos on that
day, that will be postponed on another day. Yan ang ibig
sabihin ng it may be adjourned from day to day to any stated
time. Putol-putol ba. That is how trials are being conducted.
And it is by staggered basis. Everything anyway is recorded. If
you look at the transcript stenographic notes (TSN), it would
seem continuous because everything unfolds there. But
actually, these occurred on different dates. There is even an
instance when the examination of a party is conducted, say,
in February but for some reason or the other, the cross-
examination of the same witness will be 6 or 7 months later.
And the witness is supposed to clarify what he said 7 months
ago. And sometimes the witness would even forget what he
already said. So, the best way is to look it up in the TSN. You
refresh your memory so that tomorrow, during the trial, hindi ka
na mawala. So, yan ang tinatawag na adjournment.
The law says that the court has the power to adjourn
the trial for a longer period than 1 month for its adjournment.
Of course, this is an idealistic provision. The postponement
should not be more than 30 days from now. But that is not
really being followed. In some courts which are clogged, pag-
ipostpone mo yan, the calendar is already full till next month.
The next available date is by April na. Or, worse, May pa. So,
wala kang magawa. So, these are provisions which are good
on paper but sometimes they are not really implemented
seriously.
There is a Circular of the SC about mandatory 90-day
trial period. Meaning, no case should last for than 90 days.
And that is obvious here. Not more than 3 months in all. No
postponement beyond 30 days and not more than 3 months.
Unless when authorized in writing by the court administrator.
He has the authority to give an exemption to the rule. So, if a
judge feels he cannot comply with Sec. 2, technically, he
should seek the authority of the court administrator to go
beyond the period allowed by law.
The next 2 sections deal with postponements. What
are the usual grounds for postponement? Postponements are
very normal in the courts. The usual reasons for postponement
are the witness is not available, the evidence is not available,
the party or the lawyer is ill, etc.
Sec. 3. Requisites of motion to postpone trial
for absence of evidence. - A motion to postpone a
trial on the ground of absence of evidence can be
granted only upon affidavit showing the materiality
or relevancy of such evidence, and that due
diligence has been used to procure it. But if the
adverse party admits the facts to be given in
evidence, even if he objects or reserves the right
(to object) to their admissibility, the trial shall not
be postponed. (4a, R22)
If you want to postpone a trial on the ground of
absence of evidence, absence of document, absence of
witness, your motion must be verified or upon affidavit. There
must first be an affidavit showing the materiality or relevancy
of such evidence. The evidence which is missing is important.
And that (2) you tried your best to procure it earlier. Due
diligence has been used to procure it. But just the same, you
failed. But I tell you, this is not being followed. Motions for
postponement are being made without any affidavit. And
nobody complains. Because there is an unwritten rules of
courtesy among practicing lawyers. If you strictly comply with
this, the lawyers will hit you back and give you a doze of your
own medicine once you are in trouble. Hindi marunong
makisama, eh.
Suppose your evidence is really material, relevant but
is not available despite the fact that you tried to secure it, the
law says xxx But if the adverse party admits the facts to be
given in evidence, even if he objects or reserves the right to
object to their admissibility, the trial shall not be postponed.
This is what it means. For example, the other lawyer would say:
Your Honor I would like to postpone the case my witness is not
available and his testimony is very important. Suppose the
other lawyer would say: What will your witness testify? Well, this
is what he will testify about... Alright, I admit that. I know that
that is exactly what he will say. Although I may object or
reserve my right to object to the evidence. Meaning, I admit
the existence of the evidence but I may not admit the
admissibility. Iba yan, eh. Having the evidence is not the
same as admitting it.
Di ba sa Constitution, if a confession is made by a
suspect without being given the warning that he has the right
to remain silent, that cannot be used against him. Well, the
evidence is there, it exists, but it is not admissible. Iba yung
there is the evidence and it is also admissible. Kaya sasabihin
ko, I admit the evidence although I may object to its
admissibility. With that, there is no more reason for
postponement.
So, those are the requisites for postponement due to
absence of evidence. The second ground for postponement
is illness of a party or a lawyer. What are the requisites for
that?
Republic vs. Sandiganbayan
301 S 327
Ruling: A motion for postponement should
not be filed at the last hour and that judges
are cautioned upon granting improvident
postponements. Thus, when the reason
adduced in support of a motion for
postponement was not unavoidable or
could have foreseen but was presented
only on the day of the trial although there
was no apparent reason why it could not
have been presented earlier, thus avoiding
inconvenience to the adverse party, it is
proper for the court to deny postponement.
Page 183 of 296
Tiomico vs. Court of Appeals
304 S 216
Facts: The lawyer filed the motion for
postponement on the last minute on the
ground of conflict of schedule.
Held: Motions for postponement are
generally frowned upon by the courts if
there is evidence of bad faith, malice or
inexcusable negligence on the part of the
movant. The indavertence of the defense
counsel in failing to take note of the trial
dates and in belatedly informing the trial
court of any conflict in his schedules of trial
or court appearances, constitutes
inexcusable negligence. It should be borne
in mind that a client is bound by his
counsel’s conduct, negligence and
mistakes in handling the case.
Sec. 4. Requisites of motion to postpone trial
for illness of party or counsel. - A motion to
postpone a trial on the ground of illness of a party
or counsel may be granted if it appears upon
affidavit or sworn certification that the presence of
such party or counsel at the trial is indispensable
and that the character of his illness is such as to
render his non-attendance excusable. (5a, R22)
So, I will move to postpone on the ground that my
client is sick. Again it requires an affidavit or sworn certification
that the presence of such party in the trial is indispensable and
that the character of his illness is such as to render his non-
attendance excusable. The best way to support a ground on
illness with an affidavit or sworn statement is when a medical
certificate by the attending physician is attached.
However, there are instances where you cannot
support every illness with a certificate. Like when the party
became ill only a few hours that morning. How can you get a
medical certificate? Kaya nga the SC said: Accidence or
illness, sudden and unexpected cannot always be subject to
the requirement of a medical certificate. Therefore, a motion
for postponement unverified on the ground of illness without a
medical certificate should be granted when it appears that
the claim of the movant is meritorious.
In the ultimate analysis, motions for postponement
are always addressed to the sound discretion of the court. It is
the court which is given the authority whether to grant the
postponement or not. And generally, higher courts do not
interfere with the discretion of the trial court.
How is a trial conducted? Of course, it is similar to
criminal procedure where there is also an order of trial.
Prosecution presents evidence, accused presents evidence,
etc. Well of course, in a civil case it is a little bit more
complicated.
Sec. 5. Order of trial. - Subject to the
provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the
trial shall be limited to the issues stated in the
pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence
in support of his complaint;
(b) The defendant shall then adduce
evidence in support of his defense,
counterclaim, cross-claim and third-party
complaint;
(c) The third-party defendant, if any,
shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party
complaint;
(d) The fourth-party, and so forth, if any,
shall adduce evidence of the material facts
pleaded by them;
(e) The parties against whom any
counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their
defense, in the order to be prescribed by the
court;
(f) The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice,
permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, the
case shall be deemed submitted for decision,
unless the court directs the parties to argue or to
submit their respective memoranda or any
further pleadings.
If several defendants or third-party
defendants, and so forth, having separate
defenses appear by different counsel, the court
shall determine the relative order of presentation
of their evidence. (1a, R30)
According to the opening clause of Sec. 5, the trial
shall be limited to the issues stated in the pre trial order. This
coincides with the provision of Rule. 18, Sec. 7 on Pre Trial. Let
us go back to Rule 18, Sec. 7:
Sec. 7. Record of pre-trial. - The
proceedings in the pre-trial shall be recorded.
Upon the termination thereof, the court shall issue
an order which shall recite in detail the matters
taken up in the conference, the action taken
thereon, the amendments allowed to the
pleadings, and the agreements or admissions
made by the parties as to any of the matters
considered. Should the action proceed to trial, the
order shall explicitly define and limit the issues to
be tried. The contents of the order shall control the
subsequent course of the action, unless modified
before trial to prevent manifest injustice. (5a, R20)
We have already discussed that. The pre trial shall
limit the issues to the case and when entered, shall control the
subsequent course of the proceedings. As we said, the pre
trial order has the effect of superseding the complaint and the
answer. Whatever issues stated in the pre trial are the ones
controlling. And that is reaffirmed in Rule 30, Sec. 5. The trial
shall be limited to the issues stated in the pre trial order. That is
what is more important than what originally appeared in the
complaint or the answer.
Now, of course, there is an order of trial. Sino ang
mauna? Sino ang susunod? Why should there be an order?
For an orderly procedure. Can you imagine a case where a
plaintiff files a case against 2 defendants and one defendant
files a cross-claim against the other defendant and the 2
defendants file a counterclaim against the plaintiff? Then the
defendant also files a third-party complaint against somebody
who will also file a fourth party complaint. There must be a
way of trying this. There must be a pattern. Kaya nga, in civil
cases, it is more complicated than in a criminal case.
Yung pattern ganito minus the counterclaim, cross-
claim, etc. I-simplify natin:
1. Plaintiff presents evidence in chief to
prove claim. (a)
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 2. Defendant presents evidence in chief
to prove defense. (b)
3. Plaintiff presents rebuttal evidence to
rebut Defendant’s main evidence in chief.
(f)
4. Defendant presents sur-rebuttal
evidence to rebut Plaintiff’s rebuttal
evidence.(f)
5. Arguments ( in the form of
memoranda). (g)
It is the plaintiff who presents evidence first. After
plaintiff, defendant. Normally, the defendant does not present
evidence to prove his defense first. Why will I prove my
evidence if you have not proven your cause of action?
YU vs. MAPAYO
44 SCRA 163
Plaintiff filed a case against
defendant to collect an unpaid loan.
When the defendant filed an answer, he
admitted that there was a loan, that the
amount was correct, it fell due but that it
was already paid. He had an affirmative
defense of payment. During the trial, sabi
ng plaintiff: Your Honor, we are not going to
present evidence anymore. Let him prove
that the obligation is paid because
defendant has already admitted that there
was a loan, that this was the amount and
that it fell due. Only he says that it has
already been paid. So, let him prove that.
And the court said: Yes, defendant, why
don’t you prove your defense of payment?
That kind of procedure was challenged by
the defendant. Why will I prove my defense
before the plaintiff? It is practically requiring
the defendant his defense ahead when
under the order of trial, plaintiff shall
adduce evidence first in support of his
complaint. Is the procedure correct?
The SC said it is correct. There is
nothing more for the plaintiff to prove.
Since the defendant is asserting an
affirmative defense of payment, he must
prove it. But is it not unprocedural that a
defendant is being asked to present ahead
his defense which is contrary to the
procedure? And the SC said no. That
procedure is allowed.
Let us try to go back to Rule 16 on Motion to Dismiss,
Sec. 6:
Sec. 6. Pleading grounds as affirmative
defense. - If no motion to dismiss has been filed,
any of the grounds for dismissal provided for in this
Rule may be pleaded as an affirmative defense in
the answer and, in the discretion of the court, a
preliminary hearing may be had thereon as if a
motion to dismiss had been filed. (5a)
xxx
We have learned that the filing of a motion to dismiss
is not actually compulsory because you can convert your
ground into affirmative defenses. One of the grounds for a
motion to dismiss under Rule 16 is the claim or demand set
forth in the plaintiff’s pleading has been paid. I can file a
motion to dismiss but instead of filing a motion to dismiss, I can
file an answer raising the affirmative defense of payment. In
order to hurry up things, I can ask the court for a preliminary
hearing on my affirmative defense. Meaning, before my case
will proceed to trial, I want the court to immediately rule on
whether my affirmative defense of payment is correct or not.
And if the court allows you, then the defendant will prove the
affirmative defense of payment ahead and it has the same
effect as if a motion to dismiss has been filed.
So, that is an instance where a defendant is being
given the right to present his evidence even before the
plaintiff. So, what is so unprocedural by saying that it is always
the plaintiff who will present evidence ahead when even Rule
16 allows the affirmative defense of payment to be proven
even before the trial as if a motion to dismiss has been filed?
So, there is nothing wrong in the order of the court in directing
the defendant to prove his defense of payment ahead of the
cause of action.
As a matter of fact, if you remember the rules in
criminal procedure, the pattern is the same. Prosecution
presents evidence, accused presents evidence, rebuttal.
Tapos, when the accused does not dispute the facts to be
given in evidence but relies, say, on his defense of insanity to
escape liability, or self-defense, the court can order the
reversal of the trial where the accused will present evidence
ahead of the prosecution. Halimbawa, you are accused of
homicide, and your defense is self-defense. Therefore, you are
admitting you killed the victim. So, there is nothing for the
prosecution to prove anymore. Inamin mo na, eh. Mauna ka
para ma-justify na self defense yun at hindi homicide. So, that
is where trial in reverse is allowed. And that is also allowed in
civil cases.
So, plaintiff presents evidence. Then defendant
presents evidence. And the next important part is par. (f).
(f) The parties may then respectively adduce
rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits
them to adduce evidence upon their original case;
Kaya nga, plaintiff presents rebuttal evidence to
rebut defendant’s evidence in chief. And then, defendant will
present sur-rebuttal to rebut plaintiff’s rebuttal.
Q: During the rebuttal stage, is plaintiff allowed to present
evidence to prove or to strengthen his cause of action?
A: The general rule is NO. That should have been done in
step No. 1. You cannot do that in step No. 3. Kaya nga,
during the rebuttal, you are only allowed to present rebuttal
evidence only. You are not allowed to present evidence to
prove your cause of action. You should have done that
earlier. Bawal na yan.
Unless the court for good reasons and in the
furtherance of justice permits them to adduce evidence upon
their original case. That is the exception. What it means is the
parties are not allowed to present evidence in chief to prove
their cause of action or defense during rebuttal stage unless
the court for good reasons and in the furtherance of justice
permits them to adduce evidence upon their original case.
Meaning, evidence in chief. Para bang dagdag ba.
Evidence in chief is allowed for the first time in the 3rd or 4th
stage when it should be done in the 1st or 2nd stage.
Q: When can this happen? When may the court possibly
allow the presentation of additional evidence in the rebuttal
stage? Because you are deviating from the usual pattern.
A: SC said this can happen when
(1) the additional evidence is newly
discovered. When I was presenting my evidence
earlier, wala pa yun,eh. Hindi ko nakita.
(2) the evidence was committed through
inadvertence or mistake
(3) the additional evidence offered is material
and not merely cumulative or irrelevant.
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 You know, there are many ways of skinning a cat. I
remember there was a damage suit filed by some people in
Davao against the KLM Royal Dutch Airlines for breach of
contract of carriage. So, they went to trial. When they where
already here in par. (f) presenting rebuttal evidence, the
lawyer of KLM was presenting his evidence and the other
lawyer objected because it was an improper rebuttal. The
evidence being offered is not rebuttal but evidence in chief.
And he said this is not evidence in chief. This is rebuttal
evidence. Our evidence is rebuttal evidence. But the other
lawyer said no and there was an exchange of arguments.
Then the court said, I believe that is evidence in chief.
So, you are not allowed to present that. He asked for
reconsideration but was denied. You cannot introduce that.
You should have done that earlier. This is already the stage of
rebuttal. So, wala siyang magawa. Then the lawyer of KLM
closed his eyes and paused for a minute or less. Okay your
Honor, the court has ruled that the evidence is evidence in
chief and not rebuttal evidence. So be it. In that case your
honor, in the interest of justice may we be allowed to present
evidence in chief on the rebuttal stage? And the court
granted it. So, pasok pa rin. By invoking the exception under
par. (f) of Sec. 5. So, nakalusot pa rin.
Last night, we discussed par. (f). After the
presentation of each party’s main evidence to prove his
cause of action or his defense which is technically known as
evidence in chief, the parties will now be allowed to offer
rebuttal evidence. Rebuttal evidence is not the same as
evidence in chief. Evidence in chief is to build your main case.
So, during the rebuttal, you are not allowed to present
evidence in chief because you should have done that earlier.
But by way of exception, the court for good reasons and in the
furtherance of justice, permits them to adduce evidence upon
their original case.
Now, after the presentation of evidence has already
been finished and there is nothing more to offer, the last step is
upon the admission of the evidence, the case shall be
deemed submitted for resolution. The case is now ready to be
decided unless the court directs the parties to argue or to
submit their respective memoranda or any further pleadings.
Argue orally or in writing. But normally, the argument is done in
writing. And that is done through the memorandum. So, there
is a memorandum for the plaintiff and a memorandum for the
defendant.
What is a memorandum? Actually, this is where your
prowess in writing, your persuasive power and the strength of
your case and your research will have to be explained. It is just
like a thesis. This is what plaintiff maintains. This is the
defendant’s. Issues. Arguments. And convince the court that
you are right by citing evidences. Then you say that the other
party has not proven its case, etc. That is where arguments
and conclusions come out. Not in the pleadings. Because
when you file your complaint, you do not argue. You simply
state your position. So, you file your memorandum. That is the
final step and you will wait for the decision of the court.
Sec. 6. Agreed statement of facts. - The
parties to any action may agree, in writing, upon
the facts involved in the litigation, and submit the
case for judgment on the facts agreed upon,
without the introduction of evidence.
If the parties agree only on some of
the facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall
prescribe. (2a, R30)
Suppose the parties agree in writing on the facts of
the case. Meaning, both parties agree as to the facts of the
story, what happened. If we agree on the facts, how come
we are quarreling? Because according to plaintiff, based on
these facts, he should win. Defendant would also say that
based on these facts, he ought to win. There is no
disagreement as to the facts, but they are disagreeing as to
the conclusions. Then, that is what you call a pure question of
law. There is nothing anymore to be proven because
everybody agrees on what has happened.
But we disagree on who should win. If that is so, we
can put down in writing all the facts, submit to the court and
let the court decide. So, there is no more trial. There is no
more presentation of evidence. So, if you go back to Sec. 5,
we do not have to pass through pars. (a) to (f). Derecho na
tayo sa (g) because there is no more evidence to be offered.
Evidence is supposed to prove facts. Then we can proceed
immediately to par. (g). Let us submit our memorandum and
ask the court to decide. And that is what is called judgment
on agreed statement of facts. Or more popularly known as
agreed stipulation of facts. This is a type of situation which the
law encourages. Kita niyo sa pre-trial? The parties are
encouraged to stipulate on the facts. Because that would
really shorten the trial.
Suppose we can agree only on some facts but
disagree on some others. So, there is only a partial stipulation.
The second paragraph says: If the parties agree only on some
of the facts in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe. No problem
there because at least the disputed facts are less. And
according to the SC, when there is an agreed statement of
facts, that would be sufficient basis for a judgment because
the agreement as to the facts is conclusive on the parties as
well as on the court. The court is not required to state a fact
other than what the parties themselves agreed. Neither of the
parties may withdraw from the agreement nor may the court
ignore the facts agreed upon. So, that is one way of
expediting things.
Sec. 7. Statement of judge. -
During the hearing or trial of a case any statement
made by the judge with reference to the case, or
to any of the parties, witnesses or counsel, shall be
made of record in the stenographic notes. (3a,
R30)
In a trial, everything is recorded. So, the judge should
be very careful about saying anything about the case, the
parties, the witnesses or lawyers which may cast doubt on his
objectivity or partiality. Because there are some judges who
are careless. In the course of the trial, may itatanong, tapos
sasabihing off the record ito ha. That is uncalled for.
Sec. 8. Suspension of actions. - The
suspension of actions shall be governed by the
provisions of the Civil Code. (n)
We have already touched this when we were in pre
trial. Let us go back to Rule 18, Sec. 2:
Sec. 2. Nature and purpose. - The
pre-trial is mandatory. The court shall consider:
xxx
h) The advisability or necessity of
suspending the proceedings
xxx
In other words, in a pre trial, we can discuss the
advisability of proceedings. and what is one good reason why
the case should be suspended for the meantime? One good
reason here is Art. 2030 of the Civil Code.
Page 186 of 296
 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 party refused
the offer.
The duration and terms of
the suspension of the civil action or proceeding
and similar matters shall be governed by such
provisions of the rules of court as the Supreme
Court shall promulgate. Said rules of court shall
likewise provide for the appointment and duties
of amicable compounders.
One good reason for suspending a proceeding in a
civil action under Art. 2030 is where one of the parties voices
out his desire to talk about amicable settlement. Because that
is encouraged by the law. But of course, as the parties are
encouraged to settle, the court cannot compel the parties to
settle.
GOLDLOOK PROPERTIES, INC. vs. CA
212 SCRA 498
The parties in a civil action
manifested the possibility of submitting an
amicable settlement. The court gave them
15 days to submit their compromise
agreement. After the lapse of 15 days,
there was no compromise agreement. The
court dismissed the case.
The SC said the dismissal was
precipitate since there is nothing in the rules
that imposes the sanction of dismissal for
failing to submit a compromise agreement.
Then, it is obvious the dismissal of the
complaint on the basis thereof amounts no
less to gross procedural infirmity. It is
practically making the defendant win.
What the court should have done was to
continue with the case.
Take note however, that under the civil code, while amicable
settlement is encouraged on any matter, there are certain
matters which cannot be the object of compromise. And
these are found in Art. 2035 of the Civil Code:
Art. 2035. No compromise
upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage
or a legal separation;
(3) Any ground for legal
separation;
(3) Future support;
(4) The jurisdiction of courts;
(5) Future legitime.
Alright, let us go to the last section:
Sec. 9. Judge to receive evidence;
delegation to clerk of court. - The judge of the
court where the case is pending shall personally
receive the evidence to be adduced by the
parties. However, in default or ex parte
hearings, and in any case where the parties
agree in writing, the court may delegate the
reception of evidence to its clerk of court who is
a member of the bar. The clerk of court shall
have no power to rule on objections to any
question or to the admission of exhibits, which
objections shall be resolved by the court upon
submission of his report and the transcripts within
ten (10) days from termination of the hearing. (n)
During the trial, the judge is there hearing the parties
and receiving evidence. However, there is an exception. In
default or ex parte hearings, and in any case where the
parties agree in writing, the court may delegate the reception
of evidence to its clerk of court who is a member of the bar. I
think that is related to Rule 9, Sec. 3:
Sec. 3. Default; declaration of. - 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. Thereupon, the court
shall proceed to render judgment granting the
claimant such relief as his pleading may warrant,
unless the court, in its discretion requires the
claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
(1a, R18)
So, the court in its discretion may require the plaintiff
to present evidence to prove his action and such reception of
evidence may be delegated to the clerk of court. Now, it is
clear that the clerk of court must be a member of the bar.
Actually, that is supposed to be the main qualification. Under
the judicial plantilla, the clerk of court should be a lawyer. In
Davao City, I think all clerks of court are members of the bar.
But in some places, for lack of lawyers, a clerk of court is not a
member of the bar. He cannot be allowed to receive
evidence because the law is very specific. He must be a
member of the bar.
Of course, it is not the clerk of court who will rule on
the objections to any questions or admission of exhibits.
Because hearing before a clerk of court does not only refer to
default hearings. Any case where the parties agree in writing.
Because in some cases, if you will wait for the court to hear,
the judge is very busy. So, you can ask the clerk of court and
the judge can delegate the hearing in non-controversial
cases. It is still the judge who will decide on the case.
End of Rule 30.
Rule 31
CONSOLIDATION OR SEVERANCE
What do you understand by the word consolidation?
To join. Pinagsama. When you consolidate actions, you are
joining together two or more actions.
Sec. 1. Consolidation. - When
actions involving a common question of law or fact
are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in
the actions; it may order all the actions
consolidated; and it may make such orders
concerning proceedings therein as may tend to
avoid unnecessary costs or delay. (1)
When may two or more actions be consolidated?
There are 2 requisites:
(1) When two or more actions
involve the same or a
Page 187 of 296
 common question of law or
fact; and
(2) The said actions are
pending before the same
court.
Where did we meet the phrase actions involving the
same or a common question of law or fact? In joinder of
causes of action. Two or more causes of action can be joined
in one pleading if they involve a common question of fact or
law. Rule 3, Sec. 6:
Sec.6. Permissive joinder of
parties. - All persons in whom or against any
right to relief in respect to or arising out of the
same transaction or series of transactions is
alleged to exist, whether jointly, severally, or in
the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where
any question of law or fact common to all such
plaintiffs or to all such defendants may arise in
the action; but the court may make such orders
as may be just to prevent any plaintiff or
defendant from being embarrassed or put to
expense in connection with any proceedings in
which he may have no interest. (6)
Q: When may 2 or more parties be joined together in one
pleading?
A: When there is a common question of fact or law involved in
the case.
So, practically, the same language as in Rule 31. Let us go
back to our favorite example: Ten passengers were riding on
a bus which meets an accident causing injuries to the
passengers. There are 10 causes of action there. Therefore,
each plaintiff may file his own case. But if the 10 plaintiffs
hired the same lawyer, it would be more convenient and there
would be economy of procedure if the lawyer will file only one
complaint embodying the 10 causes of action of the 10
passengers. That is the practice of joinder of causes of action
and that is permissive. And that is encouraged.
But suppose the 10 passengers hired different
lawyers. There could be no joinder as there are 10 lawyers. So,
each plaintiff will file his own case. So, you end up with 10
cases in court. And we will assume that the 10 cases were all
filed in the RTC of Davao City. So, filed in the same court. One
case went to this branch. The other case went to the other
branch. So, practically nakakalat. Kapoy. Lalo na kung ikaw
ang defendant. Kung plaintiff, walang problema. Imagine 10
cases sa 10 salas. So, if I am the defendant, I would file a
motion in court to consolidate 10 cases under Sec. 1 citing that
there is a common question of fact or law, there are all
pending before the RTC of Davao scattered in different
branches. It would be more convenient and there would be
economy of procedure. The court, to my mind will order for
the consolidation of the cases. So, ire-raffle para isang judge
na lang. So, it will have the same effect as joinder of causes of
action. That is what is meant by consolidation.
And take note that it can only be done when the
cases are pending in the same court. So, if one of the plaintiff
is from Mati and he filed his case there, and the other one from
Tagum filed the case in Tagum also, you cannot consolidate
these cases with that in Davao City. Because the law says it
must be in the same court.
Q: And when can consolidation be made?
A: Actually, it can be done at any time even on appeal. If
you will notice even in the SCRA, sometimes a decision
covers 2 or more cases. Same issues. Halimbawa the
Kilosbayan case, etc. And the court will come out with one
decision but the parties are different.
One of the things that I want you to compare
because you have taken up criminal procedure is the
concept of consolidation in Rule 31, Sec. 1 with the concept of
consolidation of criminal actions described in Rule 119, Sec.
14.
Sec. 14. Consolidation of
trials of related offenses. - Charges for offenses
founded on the same facts, or forming part of a
series of offenses of similar character may be
tried jointly at the court’s discretion. (Rule 119)
That is consolidation of criminal cases when they arise
out of the same facts. And a good example of that is where a
man went out of his house and starts to shoot people and shot
3 one after the other. Three shots, three dead bodies. There
are 3 crimes there. It cannot be a complex crime because
there are three separate acts of shooting. So, since there are
three crimes of homicide, how many information should the
fiscal file? Three. Suppose the fiscal will file only one
information charging the three homicides. Can that be done?
Hindi puwede yan. There is no such thing as an information
charging more than one offense. That is duplicitous complaint
or information which is subject to a motion to quash. Kaya
walang joinder of crimes sa criminal cases.
So, there are 3 cases. But we cannot deny the fact
that it is better to try these in one court because anyway the
witnesses are identical.
Q: So, what is the remedy?
A: Apply for consolidation of the three criminal cases under
Sec. 14, Rule 119.
That is why, the difference in civil cases is if there is a
common question of fact or law involving 2 or more causes of
action, they can be embodied under one complaint under
the rules on civil procedure. But in criminal cases, even if they
arose out of the same occasion but there are 2 or more
crimes, they cannot be embodied in the same complaint or
information. The most that can be done is they should be tried
jointly. So, consolidation in criminal cases under Rule 119 is
actually joint trial. There is no such thing as consolidating 2
criminal cases into one. They only refer to joint trial.
But there is another law in criminal procedure on
consolidation. But that is consolidating the criminal case with
the civil case which is already filed ahead. That is found in
Rule 111, Sec. 2:
Sec. 2. Institution of separate civil
action. - Except in the cases provided for in Sec.
3 hereof, after the criminal action has been
commenced, the civil action which has been
reserved cannot be instituted until final judgment
has been rendered in the criminal action.
(a) Whenever the offended
party shall have instituted the civil action as
provided for in the first par. of Sec. 1 hereof
before the filing of the criminal action and the
criminal action is subsequently commenced, the
pending civil action shall be suspended, in
whatever stage before final judgment it may be
found, until final judgment in the criminal action
has been rendered. However, if no final
judgment has been rendered by the trial court in
the civil action, the same may be consolidated
with the criminal action upon application with
the court trying the criminal action. If the
application is granted, the evidence presented
Page 188 of 296
 and admitted in the civil action shall be deemed
automatically reproduced in the criminal action,
without prejudice to the admission of additional
evidence that any party may wish to present. In
case of consolidation, both the criminal and the
civil actions shall be tried and decided jointly.
(Rule 111)
xxx
The accused may reserve the right to file the civil action
separately. Because the rule is when the criminal action is
filed, the civil action is deemed instituted unless the offended
party will make a reservation to file it separately. Or, when the
civil action was instituted ahead, the subsequent filing of the
criminal case will mean there is no more civil action there.
Sec. 2 says the filing of the criminal action will bar the
offended party from filing the civil. He has to wait for the
criminal case to be decided. unless the civil action is classified
as an independent one. Yan ang exception. Paano kung
nauna na yung civil pag-file? Under Sec. 2(a), the filing of the
criminal will now suspend the civil. Tulog muna yan. It will
have to wait for the outcome of the criminal case. Yan ang
tinatawag na the criminal case takes precedence. But If I am
the offended party, alkansi ako. Matutulog yung kaso ko kahit
nauna pa pag-file. Your remedy is to move to consolidate the
criminal and the civil case. So that whatever evidence
already received in the civil case is deemed automatically
reproduced in the criminal action. Therefore Rule 111
authorizes the consolidation of the criminal and the civil action
arising from the criminal case if it was separately filed ahead.
The consolidation of a criminal case with a civil case
is found in Rule 111 in the Rules of criminal procedure.
However, even before that procedure came our in 1985,
there was already a procedure for the consolidation of the
criminal and the civil actions to be tried together. The SC said
yes. A criminal case and civil case which have a common
question of fact and law can be consolidated under Rule 31,
Sec. 1. That was said in the case of:
CANIOS vs. PERALTA
115 SCRA 843
This case originated in Digos,
Davao del Sur. There was a criminal case
filed against A. The offended party reserved
his right to file a separate civil action. A
separate civil action was filed. So, there are
now 2 cases. The accused in the criminal
case is the defendant is the civil case. The
offended party in the criminal case is the
plaintiff in the civil case. Both cases were
raffled to the sala of the former CFI Judge
before Judge Peralta. When Judge Peralta
noticed that the 2 cases arose out of the
same incident, he issued an order to
consolidate them under Rule 31, Sec. 1
because there is a common question of law
or fact involved in the 2 cases and they are
pending before him in the same court. So,
why try them separately when they can be
tried together? Canios objected to the
consolidation under Rule 31 arguing that
what can be consolidated under Rule 31
are 2 or more civil cases involving a
common question of fact or law. but when
one action is criminal, and the other is civil,
they are not covered by rule 31. Moreover,
you cannot consolidate together the
criminal and the civil case because the
degree of proof required for the court to
decide are not the same. In criminal cases,
the judge will decide the fate of the
accused based on the criterion of guilt
beyond reasonable doubt. Whereas in a
civil case, the judge will determine whether
the cause of action is proven based on
preponderance of evidence. Yan ang mga
arguments ni Canios. But Judge Peralta
insisted on consolidating them. So, the issue
was brought to the SC.
The SC sustained the procedure.
Yes, you can consolidate and try together
because there is a common question of
fact or law and they are pending before
the same court. You are going to avoid
multiplicity of suits. How about the
argument that the degree of proof in the 2
cases are not the same? The SC said there
is no problem about that because we are
just going to try them together. When the
court will now decide, the court in
determining whether the accused is guilty
or not will now apply the criterion of proof
beyond reasonable doubt. In deciding the
civil case, the court will apply the criterion
of preponderance of evidence. Meaning,
that will come later when the court will
already decide. So, this case laid down the
rule that a criminal case and a civil case
can also be consolidated under Rule 31.
Sec. 2. Separate trials. - The court,
in furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue or of any
number of claims, cross-claims, counterclaims,
third-party complaints or issues. (2a)
Sec. 2 is the exact opposite of Sec. 1. In
consolidation, we will try them together. Ito naman, we will try
them separately. Example, what happens in a case where
there are so many claims? There is a complaint, there is a
permissive counterclaim, a cross-claim, or a third-party
complaint? Suppose my counterclaim is permissive. I can ask
the court for a separate schedule for my counterclaim. Of
course, under the order of trial, I have to wait for my turn to
prove my counterclaim. But I can ask for a separate trial for
my counterclaim. Hihiwalayin ba. Anyway, there is no
connection between my permissive counterclaim with the
main action. Under Sec. 2, the court may grant it. Kasi if I
follow the order of trial, masyadong matagal pa for my turn.
And that is allowed.
End of Rule 31.
Rule 32
TRIAL BY COMMISSIONER
Sec. 1. Reference by consent. - By
written consent of both parties, the court may
order any or all of the issues in a case to be
referred to a commissioner to be agreed upon
by the parties or to be appointed by the court.
As used in these Rules, the word “commissioner”
includes a referee, an auditor and an examiner.
(1a, R33)
We already touched briefly on what reference to a
commissioner is all about because it is one of the purposes of a
pre-trial (Rule 18, Sec. 2(f)).
Sec. 2. Nature and purpose. - The
pre-trial is mandatory. The court shall consider:
Page 189 of 296
 xxx
f) The advisability of a preliminary
reference of issues to a commissioner;
xxx
So, even in a pre-trial, you can already discuss the
advisability of a preliminary reference of issues to a
commissioner. Who is this commissioner? He is the person
mentioned in Rule 32. So, if a matter to be decided involves
some technical knowledge or expertise which the judge does
not possess aside from the fact that it would be time
consuming for the court to personally hear the evidence. Like
accounting, ba. Reconciliation of accounting records of
plaintiff and defendant where they have to go over hundreds
of documents to find out whose position is correct. Who is
indebted to whom? It would be better therefore to get the
aid of a CPA who will render a summary report on the matter.
He is in a better position to analyze and determine the
correctness of the accounting records.
Or, in a land conflict where the parties quarrel over
the boundaries. What does the judge know about boundary
conflict, encroachment? Suppose, I will appoint a surveyor or
geodetic engineer. Sukatin niya and he will know whether
there is indeed encroachment by one party on the land of the
other. So, I will enlist the help of a surveyor. And he is called a
commissioner. So, by written consent of the parties, the court
may order any or all the issues in the case to be referred to a
commissioner to be agreed upon by the parties or to be
appointed by the court. Either you can agree on who is the
CPA, who is the engineer, or you can ask the court to appoint
somebody.
Now, do they always have to agree? Is it necessary that both
parties should agree? If they both agree, the better but even
if they do not agree, the court may order that the case be
referred to a commissioner. So, it is either by agreement or
upon motion, or motu propio by the court.
Sec. 2. Reference ordered on
motion. - When the parties do not consent, the
court may, upon the application of either or of its
own motion, direct a reference to a
commissioner in the following cases:
(a) When the trial
of an issue of fact requires the examination of a
long account on either side, in which case the
commissioner may be directed to hear and
report upon the whole issue or any specific
question involved therein;
(b) When the
taking of an account is necessary for the
information of the court before judgment, or for
carrying a judgment or order into effect;
(c) When a
question of fact, other than upon the pleadings,
arises upon motion or otherwise, in any stage of
a case, or for carrying a judgment or order into
effect. (2a, R33)
So, even if there is no agreement, the court may upon the
application of either one or on its own motion may direct a
reference to a commissioner in the following cases: Under par.
(a), it requires an examination of a long account. Example is
the accounting case involves going over hundreds of receipts
and invoices. So, the CPA is in a better position to do that. Or
when it is necessary under par (b). And under par. (c), when a
question of fact arises upon a motion in any stage of the case.
Or for carrying a judgment or order into effect.
Take note that reference to a commissioner is not
only allowed in order for the court to arrive at a decision. Even
for carrying a judgment into effect. So, tapos na ang kaso.
Because sometimes, problems arise when there is already a
decision. Example: According to plaintiff when defendant
constructed his house, a portion pumasok sa kanyang lupa.
Maliit lang mga 30 sq. meters. The defendant lost. And the
court said: Alright, defendant is hereby ordered to return to
plaintiff the portion of the property - 30 sq. meters. So, punta
ang sheriff. Saan dito ang 30 sq. meters? Ito sa may kusina.
And they started quarreling on how to measure the 30 sq.
meters. In other words, saan ba dito ang boundary line? The
manner of demolishing a portion of the kitchen, they could not
agree on how to do it. Even the sheriff does not know on how
to implement the order of the court. So, we will appoint a
commissioner. Sukatin niya ang kusina. Is that allowed? Yes
because there is a problem on how to carry out the judgment
of the court. So, the appointment of a commissioner is still
possible even at that point where the court has already
rendered a decision. That is the value of trial by commissioner
under Rule 32.
Sec. 3. Order of reference; powers
of the commissioner. - When a reference is made,
the clerk shall forthwith furnish the commissioner
with a copy of the order of reference. The order
may specify or limit the powers of the
commissioner, and may direct him to report only
upon particular issues, or to do or perform
particular acts, or to receive and report evidence
only, and may fix the date for beginning and
closing the hearings and for the filing of his report.
Subject to the specifications and limitations
stated in the order,the commissioner has and
shall exercise the power to regulate the
proceedings in every hearing before him and to
do all acts and take all measures necessary or
proper for the efficient performance of his duties
under the order. He may issue subpoenas and
subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of
reference, he may rule upon the admissibility of
evidence. The trial or hearing before him shall
proceed in all respects as it would if held before
the court. (3a, R33)
You will notice the commissioner has powers. He can
issue subpoenas. Parang assistant judge na rin. Because he is
an extension of the judge. So, he has the power also to
require the parties to appear, to present evidence, swear
witnesses, etc. Kaya nga the best persons to be appointed
commissioners like if the case involves accounting, mga CPAs.
Mga knowledgeable and competent accountants. But to my
mind, because there are also quasi-judicial like he may rule on
the admissibility of evidence, the best is a CPA-lawyer
because he knows the principle of accounting and law. Kung
mga land conflict, the best is a geodetic engineer-lawyer.
That is a very rare combination.
Sec. 4. Oath of commissioner. -
Before entering upon his duties the
commissioner shall be sworn to a faithful and
honest performance thereof. (14, R33)
Self-explanatory.
Sec. 5. Proceedings before
commissioner. - Upon receipt of the order of
reference and unless otherwise provided therein,
the commissioner shall forthwith set a time and
place for the first meeting of the parties or their
counsel to be held within ten (10) days after the
date of the order of reference and shall notify
the parties or their counsel. (5a, R33)
Page 190 of 296

Self-explanatory.
Sec. 6. Failure of parties to appear
before commissioner. - If a party fails to appear
at the time and place appointed, the
commissioner may proceed ex parte or, in his
discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his
counsel of the adjournment. (6a, R33)
That is also self-explanatory.
Sec. 7. Refusal of witness. - The
refusal of a witness to obey a subpoena issued
by the commissioner or to give evidence before
him, shall be deemed a contempt of the court
which appointed the commissioner. (7a, R33)
There is no problem there.
Sec. 8. Commissioner shall avoid
delays. - It is the duty of the commissioner to
proceed with all reasonable diligence. Either
party, on notice to the parties and
commissioner, may apply to the court for an
order requiring the commissioner to expedite the
proceedings and to make his report. (8a, R33)
That is now kung tapos na. You will submit to the
court his written report. These are my findings, Judge. There is
an encroachment by defendant on plaintiff’s land. And these
are the bases of my report.
Sec. 9. Report of commissioner. -
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall
file with the court his report in writing upon the
matters submitted to him by the order of
reference. When his powers are not specified
or limited, he shall set forth his findings of fact
and conclusions of law in his report. He shall
attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of
the testimonial evidence presented before him.
(9a, R33)
There is nothing much there.
Sec. 10. Notice to parties
of the filing of report. - Upon the filing of the
report, the parties shall be notified by the clerk,
and they shall be allowed ten (10) days within
which to signify grounds of objections to the
findings of the report, if they so desire.
Objections to the report based upon grounds
which were available to the parties during the
proceedings before the commissioner, other
than objections to the findings and conclusions
therein set forth, shall not be considered by the
court unless they were made before the
commissioner. (10, R33)
Of course, the parties are given a copy of the report.
And if it is against you, you can question the findings of that
commissioner. Sometimes, it is very difficult because there is
already a court appointed commissioner but you have to get
another CPA to check on his report.
Sec. 11. Hearing upon
report. - Upon the expiration of the period of ten
(10) days referred to in the preceding section,
the report shall be set for hearing, after which
the court shall issue an order adopting,
modifying, or rejecting the report in whole or in
part, or recommitting it with instructions, or
requiring the parties to present further evidence
before the commissioner or the court. (11a, R33)
So, the report will be set for hearing. Then you are
given the chance to comment or object. After that, the court
may adopt or approve the report. So, whatever findings the
commissioner has, the court adopts the same. Or modify.
Meaning, some portions may be changed. Or reject the
report. Or re-commit it to the commissioner kasi may kulang
pa. Or, require the parties to present further evidence. So,
these are the options. Normally ano ang mga objections?
Mali or kulang lalo na kung against sa isang party. And the
court has the power to listen to you. But based on experience,
it is very hard to overturn the findings of a commissioner.
Sec. 12. Stipulations as to
findings. - When the parties stipulate that a
commissioner’s findings of fact shall be final,
only questions of law shall thereafter be
considered. (12a, R33)
Are the findings of the commissioner final or they can
be questioned? They can be questioned under Sec. 11.
Exception: when the parties already stipulate. For example,
even before the report came out, the parties entered into an
agreement that the findings of fact by the commissioner are
final, then you are now in estoppel. Mayroon ng agreement,
eh. Only questions of law shall be considered.
Sec. 13. Compensation of
commissioner. - The court shall allow the
commissioner such reasonable compensation
as the circumstances of the case warrant, to be
taxed as costs against the defeated party, or
apportioned, as justice requires. (13, R33)
May bayad ang commissioner. Biro mo you will hire a
reputable CPA tapos walang bayad? Sinong papayag
niyan? Actually in most cases, 50-50 yan. The parties will
apportioned the payment of fees.
End of Rule 32.
Rule 33
DEMURRER TO EVIDENCE
Sec. 1. Demurrer to evidence. -
After the plaintiff has completed the
presentation of his evidence, the defendant may
move for dismissal on the ground that upon the
facts and the law the plaintiff has shown no right
to relief. If his motion is denied, he shall have
the right to present evidence. If the motion is
granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived
the right to present evidence. (1a, R35)
This is one of the more important provisions on the
rules on demurrer to evidence. Demurrer to evidence is a
concept which you have already met in the study of criminal
procedure.
Page 191 of 296
Q: What is the counterpart of demurrer to evidence in civil
cases in criminal cases?
A: That is Rule 119, Sec. 15 of the rules on criminal procedure.
Distinguish the rule on demurrer to evidence in criminal cases
from the rules on demurrer to evidence in civil cases. May
similarity, meron ding kaibahan. Let us review what you have
learned in criminal cases.
There is trial.
Q: Who presents evidence first?
A: Prosecution will prove the guilt of the accused.
Afterwards, the accused will prove his defense.
Q: What is his demurrer?
A: That there is insufficiency of evidence by the prosecution
to prove the guilt of the accused.
Q: What will the accused do?
A: He will file a motion to dismiss on the ground that the
prosecution has not proven the guilt of the accused.
Meaning, you have not even proven my guilt. Therefore,
the presumption of evidence has never been rebutted.
Remember in criminal cases, the accused is presumed
innocent until his guilt is proven. That is your obligation to
prove that the accused is guilty.
Q: But after resting the case, you have not proven his guilt
where the evidence that you presented is not even
sufficient to prove that he is guilty of the crime, so why will
he present evidence to prove that he is innocent? Why will
he present evidence to prove that he is innocent when you
have not even rebutted the presumption of innocence?
A: So, instead of presenting evidence, the accused will file
a motion to dismiss because the prosecution has failed to
establish his guilt. And that motion to dismiss is called a
demurrer.
Q: Paano naman sa civil case?
A: The same thing. In civil cases, according to Rule 33,
plaintiff presents evidence to prove his cause of action.
After he is through, defendant will present his evidence to
prove his defense. But we are assuming that plaintiff has
proved his cause of action.
Q: Suppose plaintiff has not proven his cause of action,
why will I defend myself when you have not proven your
claim?
A: So, instead of presenting my evidence, I will file a motion
to dismiss and that is called a demurrer also.
Q: So, how do you define a demurrer?
A: It is a motion to dismiss filed by the defendant after the
plaintiff has rested his case on the ground of insufficiency of
evidence. That is what a demurrer is all about. So, based
on the facts and the law, since the plaintiff has not shown
his right to relief, so instead of presenting my evidence, I will
file a motion to dismiss.
Q: Now suppose my motion to dismiss (my demurrer) is
denied. Meaning, the court is of the opinion that plaintiff’s
evidence was sufficient to prove his cause of action, what
will happen?
A: In that case, I will have to present my side. The
defendant will have the right to present evidence. So, no
harm done. There is no risk there. The risk will come in
when your demurrer is granted.
Q: Suppose the court will agree with me. Suppose after
reviewing the evidence it is of the opinion that plaintiff has
not proven his cause of action?
A: So, in effect the court will grant my motion to dismiss and
the complaint is ordered dismissed without the defendant
presenting anything. Dismissed na. Guwapo no? Pero ito
ngayon ang delikado. The plaintiff now will appeal to the
CA citing that his evidence was sufficient. And on appeal,
the CA will agree with plaintiff. Bakit ba ito dinismiss? So,
the CA will now reverse the order of dismissal.
Q: So, pag-reverse, who wins?
A: The plaintiff will automatically win. Judgment will be
rendered for the plaintiff. Defendant will say, okay reverse,
so balik tayo sa kaso. I will now present my evidence. No
more. You lost your right to present your evidence forever.
So, that is why the law says if your motion is granted but on
appeal the order of dismissal is reversed, he shall be
deemed to have waived the right to present evidence.
And that is the end of the case. Plaintiff automatically wins
and the defendant has no longer the right to present his
evidence.
Do you see the situation? If I file a demurrer and it is
denied, no problem because I can still present my side. But if
my demurrer is granted and the case is dismissed but on
appeal, it is reversed, I automatically lose the case. I no longer
have the right to present my evidence. So, it is a very risky
remedy. So, parang default judgment.
Now, in criminal cases, there is also a demurrer to
evidence, Rule 119, Sec. 15.
Sec. 15. Demurrer to
evidence. - after the prosecution has rested its
case, the court may dismiss the case on the
ground of insufficiency of evidence: (1) on its
own initiative after giving the prosecution an
opportunity to be heard; or (2) on motion of the
accused filed with prior leave of court. (Rule
119)
If the court denies the motion for dismissal, the
accused may adduce evidence in his defense. When the
accused files such motion to dismiss without express leave of
court, he waives the right to present evidence and submits the
case for judgment on the basis of the evidence for the
prosecution.
So, that is the rule on demurrer to evidence in
criminal cases. One of the nice questions in remedial law is
distinguish the rule on demurrer to evidence in criminal cases
from demurrer to evidence in civil cases. Actually, the
similarity is demurrer in criminal cases is after the prosecution
has rested its case, the accused instead of presenting
evidence, will also file a motion to dismiss on the ground of
insufficiency of evidence to prove his guilt. So, pareho. So,
what is the difference? Let us try to compare.
In civil cases, if the motion to dismiss (the demurrer) is
denied, does he have the right to present his evidence to
prove his defense? Answer: yes. In criminal case, if the
demurrer of the accused under Rule 119, does the accused
have the right to present evidence to prove his defense? It
would depend if before filing the demurrer, the accused
sought leave of court.
And if the court grants the motion for leave of court,
the accused now files his demurrer. What if his demurrer is
denied? Will the accused have the right to present evidence
if there is prior leave of court? Yes. But if the accused filed
the demurrer right away without asking prior leave of court,
and the demurrer is denied, does the acccused have the right
to present his evidence? No more. Yun ang kaibahan. The
accused retains his right to present evidence if there was prior
leave of court. If there was none, he loses the right to present
evidence. In civil cases, hindi kailangan ang leave of court.
Basta file ka lang ng demurrer. Automatic the defendant is
given the right to present his side if the demurrer is denied.
Going back to Rule 33, in a civil case, if the demurrer
is granted and the case is dismissed but the plaintiff appealed
the order of dismissal and the order of dismissal is reversed by
the appellate court, will the defendant have the right to
present evidence, no more. He is deemed to have waived his
right to present evidence. Now, in criminal cases after the
prosecution has rested and the accused filed a motion to
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dismiss on the ground of insufficiency of evidence, and what
happens after that? In criminal cases, when the demurrer is
granted, there is no appeal because the accused is already
acquitted. It will place the accused in double jeopardy.
Walang appeal. The prosecution cannot appeal because it is
an acquittal already.
Now, in criminal cases under Rule 119, can the court
dismiss the case on the ground of insufficiency of evidence
without any motion to dismiss filed by the accused? No
motion, no demurrer? Motu propio ba. That is allowed. The
law says the court on its own initiative xxx but after giving the
prosecution the right to be heard. In civil cases, can the court
dismiss the complaint on the ground of insufficiency of
evidence without the demurrer of the defendant? No. There
must be a motion filed by the defendant under Rule 33.
So, those are the distinctions of demurrer to evidence
in criminal and demurrer to evidence in civil cases.
CRIMINAL CIVIL
After prosecution has rested its case, accused
instead of presenting evidence will file motion to
dismiss on the ground of insufficience of evidence to
prove guilt
1 denied – right to 1. denied – has right to
present evidence present evidence
depends if before
filing demurrer,
accused sought leave
of court
2. w/ leave of court – 2. no leave of court
yes
w/o leave of court –
no
3. when demurrer is 3. demurrer granted,
granted, accused is on appeal reversed by
ACQUITTED, no appellate court,
appeal, double WAIVE right to present
jeopardy evidence
4. could be done 4. there must be
muto proprio motion by defendant
In the case of:
Enojas vs COMELEC
283 S 229
Ruling: “The motion to dismiss on the
ground of jurisdiction can be easily
differentiated from a motion to dismiss on
demurrer to evidence in that, in the latter
case, the movant admits the truth or factual
allegations in the complaint and moves for
the dismissal of the case on the ground of
insufficiency of evidence. The legal effect
and consequence of a demurrer to
evidence is that in the event that the
motion to dismiss on demurrer to evidence is
granted and the order of dismissal is
reversed on appeal, the movant loses his
right to present evidence on his behalf.
However, in a motion to dismiss on the
ground of lack of jurisdiction, the movant
does not lose his right to present evidence.”
“It likewise bear stressing that a demurrer to
evidence under Rule 33 is in the nature of a
motion to dismiss on the ground of
insufficiency of evidence and is presented
after the plaintiff rests its case. It thus differ
from a motion to dismiss under Rule 16
which is grounded on preliminary objections
and is presented at the outset of the case,
that is before responsive pleading is filed by
the movant and within the period for the
filing thereof”.
End of Rule 33.
Rule 34
JUDGMENT ON THE PLEADINGS
Sec. 1. Judgment on the
pleadings. - Where an answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse party’s pleading, the
court may, on motion of that party, direct
judgment on such pleading. However, in actions
for declaration of nullity or annulment of
marriage or for legal separation, the material
facts alleged in the complaint shall always be
proved. (1a, R19)
Plaintiff files a complaint against the defendant.
Defendant files an answer. But when plaintiff went over the
answer, no defense was interposed. All the allegations in the
complaint were admitted. No affirmative defense.
Q: So, what kind of answer is that?
A: It is an answer which has not put up a defense.
Q: So would you wait for a trial? What is there to prove
when the defendant has already admitted what plaintiff
had said in the complaint? What will the plaintiff do?
A: He will apply Rule 34. He should file immediately in court
what is known as a motion for judgment on the pleadings.
Meaning, he is asking for a judgment based on what my
complaint is saying and based on what defendant is
saying. This is what I say in my complaint. This is what he
says in his complaint. Lahat ng sinasabi ko totoo daw. He
is not denying anything. So, decision. With that the court
will render judgment for the plaintiff. No more evidence.
What is there to prove? Admitted na nga. It will only be
based on the pleadings. That is what is known as judgment
on the pleadings.
So, how do you describe this remedy? It is one of the
speedy devices under the rules of court for the immediate
resolution of a civil action. Because you don’t have to go
through a trial.
Q: What are the grounds for a judgment on the pleadings?
A: There are two (2) according to section 1.
First ground: When an answer fails to tender an issue,
Second ground: When the answer admits the material
allegation of the adverse party’s pleading. A good example
of the second ground is what I mentioned earlier. It is an
answer na lahat admitted. The answer admits the material
allegations of the adverse party’s pleading.
Q: On the first ground, the answer fails to tender an issue.
When does an answer fail to tender an issue?
A: The SC said an answer fails to tender an issue if it neither
admits nor denies the material allegations in the complaint.
You cannot do that. Either you admit or deny. Evasive, di
ba? If that is the answer, it does not tender an issue.
Or the second type of answer which does not tender
an issue is where the answer contains general denials. All
the denials are general and not specific. Like defendant
has no knowledge or information sufficient xxx. Maski klaro,
Page 193 of 296
 no knowledge pa rin. So, if the modes of denial are not
followed under rule 8, then the denials are general and
therefore, the answer fails to tender an issue. And you can
claim also that the answer impliedly admits all the material
allegations or averments in the complaint or the adverse
party’s pleading. Take note, adverse party’s pleading
because it could be an answer to a complaint, an answer
to a counterclaim, etc.
On the other hand, the rule on judgment of the
pleadings is not applicable to certain types of civil cases. An
action for declaration of nullity of marriage, or annulment of
marriage or an action for legal separation. Because the law
says the material facts alleged in the complaint shall always
be proved. If we will allow Rule 34 to apply to these cases,
then an annulment and the like would be very easy. The
husband and the wife who are seeking annulment would just
agree among themselves. I-admit mo lahat para judgment on
the pleadings na. My golly. The court will never allow that to
succeed simply because the other party admitted everything.
That would be a license for collusion.
We can relate this rule also on default judgment.
Pareho rin ang epekto. Sadyain ng defendant not to file an
answer so that only the plaintiff will be heard. In Rule 34, file ka
nga ng answer pero inadmit mo naman lahat. The same
philosophy.
By the way judgment on the pleadings was
mentioned in the previous rule, Rule 18, Sec. 2 (g) on pre-trial.
Sec. 2. Nature and purpose. - The
pre-trial is mandatory. The court shall consider:
g) The propriety of rendering
judgment on the pleadings, or summary
judgment, or of dismissing the action should a
valid ground therefor be found to exist;
In a pre-trial conference, if a ground for summary
judgment exists, the court can render judgment on the
pleadings even in a pre-trial conference because of Sec. 2,
(g). Tapos na ang kaso.
End of Rule 34.
Rule 35
SUMMARY JUDGMENTS
The rule on summary judgments is closely related on
the rule on judgment of the pleadings in the sense that they
are a speedy manner of terminating a civil case where there is
no more trial.
Sec. 1. Summary judgment for
claimant. - A party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain
a declamatory 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. (1a, R34)
We will try to compare this with judgment on the
pleadings later on. But first, let us go to a direct example. I will
file a case against you. You filed an answer where everything I
said in my complaint has been admitted by you. So, your
answer puts up no defense at all. What is my remedy? I will
file a motion for judgment on the pleadings under Rule 34.
Second case: You filed a complaint against me to
and I have no defense. Like utang, unpaid loan. Anong
depensa mo diyan? If I will file an answer and I will admit
everything, yari ako. Judgment on the pleadings. So, para
magkaroon ng depensa, I will allege the affirmative defense
of payment. Kunwari lang. Of course, in that situation, you
cannot apply judgment on the pleadings. You file a
complaint. I file my answer. And you know that my defense is
false. You cannot file a motion for judgment on the pleadings
under Rule 34. Unlike in the first example, there was no issue
because there was no defense. So, a motion for judgment on
the pleadings is proper. Here in the second example, there is
an issue because there is a defense, although the defense is
false. Basta may depensa sa answer, hindi puwede ang
judgment on the pleadings. You can only avail of Rule 34 if an
answer puts up no defense at all. Pero pag may depensa na,
wala na because it tenders an issue. Sabi ng plaintiff, hindi
nagbayad. Sabi naman ng defendant, nagbayad na ako.
Wala na. So, you do not say all the allegations in the
complaint are admitted.
But plaintiff knows that the defense is false. Kunwari
lang yan. It is a false defense. It is not a genuine issue but only
interposed for delay. And the defendant deep in his heart
knows also that his defense is false. But defendant will
succeed in delaying the case with an answer which puts up a
false defense. The falsity will be exposed in the course of the
trial.
Q: If that is defendant’s tactic, as the plaintiff I want to get
immediate judgment against you. But I have to expose
that your defenses are not genuine. What is my remedy?
A: Rule 35. I will avail of summary judgment. I will file a
motion for summary judgment. How? Under Sec. 1 in
relation to Secs. 3 and 5, I will file a motion for summary
judgment where I will say: in my complaint I alleged that
defendant has not paid his loan. In his answer, defendant
raised the affirmative defense of payment. I will now say
that the defense is 100% false. That it is not true but is
merely interposed for delay. And to convince the court
that I am telling the truth, I am attaching to this motion my
affidavit under oath where I will say that defendant has not
paid me a single centavo. He is lying. And I know the
consequence if I lie because I will go to jail for perjury. So, I
will file a motion for summary judgment.
Under Sec. 3, ikaw ang defendant and you think my
motion is without merit, you are obliged to oppose it. I am
telling the truth and to show that, I will also execute an
affidavit under oath that I have paid the account. And if I am
lying, I am willing to go to jail.
Now, kung talagang nagbayad siya, matapang siya.
Subukan mo. Chances are, you will not oppose it because
wala ka naman talagang payment. Mag-under oath ka na
nagbayad ka na? Matapang ka. So, the defendant will not
oppose it. Or, if he will, walang affidavit. Takot iyan sa perjury.
So, the court can see clearly now who is telling the truth.
Decision kaagad in favor of the plaintiff. Yan ang summary
judgment. It is not only based on the pleadings but also
through affidavits, depositions. So, similar to judgment on the
pleadings, mabilis.
Q: So, define summary judgment.
A: As defined by the SC, it is a method of promptly
disposing of actions in which there is no genuine issue as
to any material fact. The emphasis there is genuine issue.
There is an issue but the issue is not genuine. It is merely
interposed for delay. Kaya some writers would call this the
law on accelerated judgment. So, summary or
accelerated judgment.
Take note that the remedy of a motion for summary
judgment has already been mentioned in previous rules that
we discussed:
Page 194 of 296
 Sec. 1. Dismissal upon notice by
plaintiff. - A complaint may be dismissed by a
plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for
summary judgment. xxx
So, the plaintiff can withdraw his complaint before
service of the answer for a motion for summary judgment.
Sec. 2. Nature and purpose. - The
pre-trial is mandatory. The court shall consider:
XXX
g) The propriety of rendering
judgment on the pleadings, or summary
judgment, or of dismissing the action should a
valid ground therefor be found to exist;
XXX
Sec. 2. Summary judgment for
defending party. - A party against whom a
claim, counterclaim, or cross-claim is asserted
or a declamatory 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. (2a, R34)
Q: Did you notice that summary judgment is available to
both parties?
A: Sec. 1, it is available for the claimant. The plaintiff, or the
defendant in a counterclaim or cross-claim. Sa sec. 2,
summary judgment for the defending party. So, the
defendant although very rare yan. In most cases, it is the
plaintiff filing the motion because the defendant’s answer
tenders no genuine issue. Ito naman, it is the defendant
filing a motion for summary judgment because it is the
complaint which tenders no genuine cause of action.
Meaning, the cause of action is false. Manifest. It is only
interposed to harass the defendant. So, instead of filing an
answer, I will file a motion for summary judgment under
Sec. 2.
Q: And how do I prove that the complaint is false?
A: By supporting again my motion with affidavits,
depositions or admissions for a summary judgment.
Sec. 3. Motion and proceedings
thereon. - The motion shall be served at least ten
(10) days before the time specified for the
hearing. The adverse party may serve opposing
affidavits, depositions, or admissions at least
three (3) days before the hearing. After the
hearing, the judgment sought shall be rendered
forthwith if the pleadings, supporting affidavits,
depositions, and admissions on file, show that,
except as to the amount of damages, there is no
genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law. (3a, R34)
: If I file a motion for summary judgment, I must serve you a
copy at least 10 days before the date of the hearing. Under
Rule 15, the minimum notice is 3 days. But in motion for
summary judgment, 10 days. The reason is to give the other
party also the chance to oppose your motion. Under Sec, 3,
the opposing party may serve opposing affidavits, depositions
or admissions at least 3 days. Kaya nga you are given 10 days
eh. After the hearing, the summary judgment shall be
rendered according to the law. If the pleadings, supporting
affidavits, depositions, and admissions show that there is no
genuine issue as to material fact and the moving party is
entitled to a judgment as a matter of law.
Take note that the court will render judgment except
as to the amount of damages. Meaning, the amount of
damages cannot be granted by summary judgment. There
has to be evidences. The exact amount is subject to proof.
This is related to Rule 8, Sec. 11:
Sec. 11. Allegations not
specifically denied deemed admitted. - Material
averment in the compliant, other than those as
to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied.
Material averment in the complaint other than those
as to the amount of unliquidated damages shall be deemed
admitted when not specifically denied. Allegations are
deemed admitted when not specifically denied except as to
the amount of unliquidated damages. Tapos, here is now Rule
35. Except as to the amount of damages, there is no genuine
issue as to material fact. Meaning, even if you are entitled to
a summary judgment, you must present evidence as to how
much you are entitled. Because this must be established.
Take note that an opposition for summary judgment
must be supported by affidavits, depositions and admissions
on file. This is related to Rule 23, Sec. 4:
Sec. 4. Use of depositions.
- At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules
of evidence, may be used against any party
who was present or represented at the taking of
the deposition or who had due notice thereof,
xxx.
Q: Where will you use a deposition?
A: Trial, xxx upon the hearing of a motion.
Q: Give an example of a motion where you can use
deposition.
A: Hearing of a motion for summary judgment under Rule
35. You can always support your position by way of the
evidence taken in the deposition.
Q: Ano yang admissions on file?
A: Yung mga request for admission where I can establish
that there is no genuine issue. Kaya the modes of
discovery can be used in order to file a motion for summary
judgment.
Q: Are there cases where a summary judgment is not
possible? Remember a summary judgment is similar to
judgment on the pleadings. Are there cases where Rule 35
will not apply?
A: It will not apply to the same actions mentioned in Rule
34. Declaration of nullity of marriage, annulment of
marriage and legal separation. All these cases require a
full blown trial where evidences must be presented. So, if
you will notice, even default judgment is not allowed in
these types of actions.
Sec. 4. Case not fully adjudicated
on motion. - If on motion under this Rule,
judgment is not rendered upon the whole case
or for all the reliefs sought and a trial is
necessary, the court at the hearing of the
motion, by examining the pleadings and the
evidence before it and by interrogating counsel
shall ascertain what material facts exist without
substantial controversy and what are actually
and in good faith controverted. It shall
thereupon make an order specifying the facts
that appear without substantial controversy,
Page 195 of 296
 including the extent to which the amount of
damages or other relief is not in controversy,
and directing such further proceeding in the
action as are just. The facts so specified shall be
deemed established, and the trial shall be
conducted on the controverted facts
accordingly. (4a, R34)
Is there such a thing as partial summary judgment?
Yes, that is a case not fully adjudicated on motion. That will
happen if there are several issues which are raised in the case
and some issues are genuine and some are not? Or a
complaint which joins 2 causes of action? One cause of
action is genuine, the other is not. The court can dispose
immediately of the action which is not genuine. But the rest of
the case will be tried. So, the trial would be faster because
only genuine issues will be adjudicated.
Sec. 5. Form of affidavits and
supporting papers. - Supporting and opposing
affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters
stated therein. Certified true copies of all papers
of parts thereof referred to in the affidavit shall
be attached thereto or served therewith. (5a,
R34)
So, summary judgment is actually a trial by affidavits
or depositions. There is no more presentation of witnesses in
court. The affidavits of the parties will suffice. The procedure is
similar to preliminary investigation in criminal cases. A fiscal or
prosecutor conducts a preliminary investigation on the
affidavits lang. The complainant will submit his affidavit. The
respondent will file his counter-affidavit. Then the fiscal will go
over the affidavits and will resolve the issues. So, the resolution
is practically based on affidavits. Now, rule 35 is similar to that.
The court will decide the case simply o affidavits without
requiring the parties to testify in court.
If that is so, the affidavits must be based on personal
knowledge. Because if you are a witness, when you testify in
court, you testify on matters that you actually know. Not on
matters which were whispered to you. If that is the
qualification of a witness to testify in court, that is also the
qualification for those who will execute the affidavits. They
should talk of matters that they know and the affidavit will
show they are really in a position to know. Those are the types
of affidavits mentioned in Sec. 5.
Sec. 6. Affidavits in bad faith. -
Should it appear to its satisfaction at any time
that any of the affidavits presented pursuant to
this Rule are presented in bad faith, or solely for
the purpose of delay, the court shall forthwith
order the offending party or counsel to pay to
the other party the amount of the reasonable
expenses which the filing of the affidavits
caused him to incur, including attorney’s fees. It
may, after hearing, further adjudge the
offending party or counsel guilty of contempt.
(6a, R34)
So, if a party or counsel presents affidavits which are
in bad faith, or for the purpose of delay, they are held liable to
pay attorney’s fees or held in contempt of court not to
mention the fact that under the RPC , there is a risk of perjury.
Now, we will go to this important question. Distinguish
the remedy of summary judgment from the remedy on
judgment on the pleadings. Of course they are similar in the
sense that they are methods for promptly disposing of actions.
The main distinction is based on the grounds for which they are
used. Summary judgment is proper if there is no genuine issue
to be tried whereas judgment on the pleadings is proper if
there is no issue at all to be tried.
What is the difference between the two? No issue to
be tried - judgment on the pleadings. No genuine issue to be
tried - summary judgment. No issue because the answer of
the defendant puts up no defense at all. If I will file an answer
without putting up any defense, everything that the complaint
says are admitted. There is nothing to be tried. So, the
remedy is a motion for judgment on the pleadings. When you
say genuine issue, if you look at the answer, there is a defense
so there is an issue to be tried. the trouble is that issue is false.
That is a dilatory defense. So, the remedy there is summary
judgment.
Another difference. Summary judgment is rendered
by the court on the basis of facts appearing in the pleadings
and affidavits, depositions and admissions. The facts are
established on what the plaintiff says, the affidavits submitted
by the parties, admissions and depositions whereas under Rule
34, a judgment on the pleadings is rendered on the basis only
of the pleadings. Complaint - answer lang. There are no
affidavits, no depositions, etc.
And finally, who can avail of these remedies? If you
look at Rule 35, summary judgment is a remedy which can be
availed of by both parties. The claimant or the defending
party. On the other hand, judgment on the pleadings can
only be availed of by the plaintiff or the claimant. Because
the ground for judgment of the pleadings is where the answer
of the defendant tenders no issue. So, it is the plaintiff who will
move for the judgment on the pleadings.
Vergara, Sr. vs. Suelto, Et Al
156 S 753
Issue: When does an answer fail to
tender an issue? When is there no
genuine issue?
Ruling: Rule 34 of the Rules of
Court provides that where an
answer fails to tender an issue, or
otherwise admits the material
allegation of the adverse party’s
pleading the court may, on
motion of that party, direct
judgment on such pleading. The
answer would fail to tender an
issue, of course, if it does not
comply with the requirements for a
specific denial set out in section 8
of Rule 8 and it would admit the
material allegations of the adverse
party’s pleading not only when it
expressly confesses the truthfulness
thereof, but also if it commits to
deal with them at all.
If an answer does in fact
specifically denies the material
averments of the complaint in the
manner indicated of the said
section of Rule 8, and or asserts
affirmative defenses in
accordance with section 4 and 5,
Rule 6, a judgment on the
pleadings would naturally be not
proper.
Page 196 of 296
 But even if the answer does tender
issues and therefore a judgment
on the pleadings is not proper, a
summery judgment may still be
rendered on the plaintiff’s motion if
he can show to the court
satisfaction that except as to the
amount of damages there is not
genuine issue as to any material
fact, that is to say, the issues thus
tendered are not genuine, or in
other words sham, fictitious,
contrived, set up in bad faith and
patently unsubstantial. The
determination may be made by
the court on the basis of the
pleading, and the depositions,
admissions and affidavit that the
movant may submit, as well as
those the defendant may present
in his turn.
Before we leave Rule 35 because we have gone
three unique judgments –
1. Rule 33 Demurrer to Evidence,
2. Rule 34 Judgment on the Pleadings, and
3. Rule 35 Summary Judgment.
Rule 36
JUDGMENTS, FINAL ORDERS
AND ENTRY THEREOF
.
If you look at the rules, there are supposed to be 3
important stages in a civil action:
1. Issue Formulation Stage - The stage where we are trying
to find out the issues in the case. I file a case. You file an
answer. I will not know the issue until you file an answer.
We do not know what mattes are admitted and what
matters are denied. So, we are still trying to formulate the
issues. That is manifested during the filing of the pleadings.
After the last pleading is filed, you go to pre-trial where we
will try to secure admissions in order to avoid unnecessary
proof. Simplification of issues. Possible amendments of
pleadings. So, even in the pre-trial stage, it is still
considered as part of the first stage.
2. Stage of Proof - The pre-trial is over. The issues are
now defined in the pre-trial order. What is now the next
step? Rule 30 - Trial. Plaintiff presents evidence to prove his
claim. Defendant presents evidence to prove his defense.
Parties present rebutting evidence. So this is the stage
where the parties will prove their respective contentions.
Then after the trial, arguments. After the presentation of
evidence, the parties will now be allowed to argue.
Usually, written memorandum yan.

To secure these types of judgments, motion di ba.

Let us try to go back to the basic concept of a motion. Define 3. Judgment Stage - This is the last stage where the court
motion. Rule 15, Sec. 1: renders a decision.

A motion prays for a relief other than the relief prayed
for in the pleading. So, actually, a motion prays only for minor
orders. A motion cannot pray for a judgment. You cannot
secure a judgment by mere motion because the relief there is
found in the pleading.
We are now here in that stage in the life of a civil
action, Rule 36. Let us define judgment. The SC defined
judgment as the final consideration and determination by a
court of the rights of the parties as those rights presently exist,
upon matters submitted to it in an action or proceeding.

General rule: a motion cannot pray for a judgment but only for What are the requisites of a valid judgment? It would
minor orders. either be essential or formal requisites. What are the essential
Exceptions: Rules 33,34, and 35. requisites where without anyone of them the judgment would
be null and void?

Summary judgment (R35) Judgment on pleadings 1. The court rendering the judgment
(R34) must have jurisdiction over the subject
Both methods for promply disposing of actions matter.
1. no genuine issue to 1. no issue at all to be
be tried – issue is false, tried – answers has no 2. The court rendering the judgment
dilatory defense defense must have jurisdiction over the person of
2. rendered by the 2. rendered on the the defendant. And in case the
court based on facts basis of pleadings: defendant is a non-resident, the court
appearing in the complaint & answer rendering the judgment must have
pleadings & affidavits, jurisdiction over the res.
depositions &
admissions 3. The court rendering the judgment
3. can be availed by 3. can only be availed must have jurisdiction over the issues,
both parties by plaintiff or claimant that is, the judgment shall decide only
the issues raised by the parties in their
End of Rule 35 pleadings.

4. The court rendering the judgment

must have be a validly constituted court
and the judge thereof a judge de jure or
de facto. So, if the court is abolished,
the judgment is void. Or the judge who
has retired a month ago is no longer a
de jure or de facto judge. He is already
retired. He is already out of the judiciary.
The judgment there is necessarily null
and void.

5. The judgment must be rendered after

lawful hearing, meaning that due
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 process must be observed. Kaya nga
after plaintiff, defendant naman. Paano
yung na-default? Well, there is still due
process because you were given the
opportunity to be heard but you refused
to defend yourself. So, you cannot
complain anymore. Because that is
what is due process. The right or
opportunity to be heard.
ABC Davao Auto Supply vs. Court of Appeals
284 S 218
Facts: The case was tried by a judgment
which was temporarily assigned to Mati. He
wrote the decision and had it released but
by that time he was already back in Mati.
The losing party contented that the
judgment was not valid.
Ruling: The judgment is valid because when
the new judge denied the motion for
reconsideration, he effectively adopted in
toto the decision of the Mati judge and
besides the Mati judge was still the judge
when he rendered his decision.
As to form, what are the requisites of a valid judgment? That is
Sec. 1:
Sec. 1. Rendition of judgments and
final orders. - A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and
the law on which it is based, signed by him, and
filed with the clerk of the court. (1a)
First, the judgment shall be in writing. So, there is no
such thing as oral judgment. Walang oral decision. There was
a problem before in the bar. Something like this: After the trial,
the court asked the lawyer if he was still going to argue or file a
memorandum. No more, Your Honor. We are going to submit
the case for judgment without any argument. And the judge
said: Okay, submitted for decision. Stenographer, I will now
dictate my decision. Derecho no? So, that is not official
because every decision must be in writing. If you want to
appeal, you have to wait for the written decision.
Second, it must be personally and directly prepared
by the judge. The presumption is he is the one who writes the
decision and not somebody else from his office. Or worse,
your own opponent will write it. My golly. And that is
happening, rarely though.
The third which is the most important requisite is that it
must state clearly and distinctly the facts and the law on which
it is based.
And fourth, it shall be signed by the judge, filed in the
clerk of court.
Let us discuss more the third requisite. The judgment
must state clearly and distinctly the facts and the law on which
it is based. Meaning, there must be a reason for the decision.
The facts and the law. You can also find that requirement in
the Constitution, Art. VIII, Sec. 14:
Sec. 14. No decision shall
be rendered by any court without expressing
therein clearly and distinctly the facts and the
law on which it is based. xxx (1987 Constitution)
So, you cannot say: This is an action to collect an
unpaid loan. According to the plaintiff, defendant borrowed
money amounting to P40T and did not pay. According to the
defendant, the obligation is fully paid. The parties presented
evidence to prove each other’s contention. Wherefore,
judgment is hereby rendered in favor of the plaintiff. In other
words, walang discussion on why the defense of payment was
not considered. Basta ganoon lang. What kind of decision is
that?
In another case, a judgment stated: After a
meticulous analysis and study of the evidences presented by
both parties, the court is of the view that plaintiff’s evidence is
more logical, acceptable, probable and worthy or credit.
Wherefore, judgment is hereby rendered in favor of plaintiff
ordering defendant xxx. The SC said the decision is wrong
because there is no discussion of the facts and the law. Why is
it logical, acceptable, probable and worthy of credit?
Walang explanation. There is no finding of conclusion of fact
or law. So, it does not comply with the formal requirement that
a valid judgment must state clearly and distinctly the facts and
the law on which it is based. If you look at SC decisions, there
is a thorough discussion. Every point disputed by a party is
discussed by the SC. Why you are right. Why you are wrong.
Q: Now, is this third requirement applicable to all courts?
A: Yes, whether SC or an MTC. The Constitutional provision
on this requirement applies to all courts from the highest to
the lowest. Here is an interesting question. The RTC
rendered a decision in favor of the plaintiff. Of course,
there was a discussion of the facts and the law. The
defendant appealed to the CA. After reviewing the
decision of the trial court, the CA affirmed the former’s
decision. Of course, the CA has to write its own decision.
And having affirmed the RTC’s decision, identical yung
decision. Inadopt ng CA ang decision ng RTC. Kinopya ba
verbatim, anyway, 100% tama man ang RTC.
Q: Now, is the CA allowed to do that? Or must it write its
own decision although pareho ang sinasabi. But it must
write in its own language.
A: There is now a specific provision in the judiciary law
governing that point on whether an appellate court which
affirms a decision of the lower court can simply quote
verbatim the findings of the lower court and adopt it. BP
129, Sec. 40:
Sec. 40. Form of decision
in appealed cases. - Every decision or final
resolution of a court in appealed cases shall
clearly and distinctly state the findings of fact
and the conclusions of law on which it is based,
which may be contained in the decision or final
resolution itself, or adopted by reference from
those set forth in the decision, order , or
resolution appealed from. (BP 129)
So, the CA may adopt or simply copy the findings of
fact of the RTC as its own. And this provision which authorizes
the appellate court to do that is what is known briefly as a
memorandum decision. What is a memorandum decision?
That is what is mentioned in Sec. 40. It is a decision of the
appellate court affirming that of the lower court and therefore,
since it has been affirmed, it will simply adopt the findings of
fact and conclusions of law of the trial court as its own findings
and conclusions. And the concept of memorandum decision
is now found in the 1997 rules on evidence, Rule 51, Sec. 5:
Sec. 5. Form of decision.- Every
decision or final resolution of the court in
appealed cases shall clearly and distinctly state
the findings of fact and the conclusions of law on
which it is based, which may be contained in
the decision or final resolution itself, or adopted
from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg. 129)
(n)
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Did you notice? Every decision of the court in
appealed cases, etc. shall clearly and distinctly state the
findings of fact and the conclusions of law on which it is based.
That is actually reiterating Sec. 1, Rule 36. xxx Which may be
contained in a decision or final resolution itself or adopted
from those set forth in the decision, order or resolution
appealed from. That is taken from Sec. 40 of BP 129.
The obvious purpose of this provision is to hurry up the
work of the CA judges. So, faster. Kopyahin mo na lang, eh. If
I rewrite everything and still say the same thing, the process
becomes longer. Although some people remark that this is an
invitation to laziness by appellate judges. Lahat ng decisions i-
affirm na lang kasi kopyahin man lang. Kung i-reverse ng CA,
malaking trabaho pa. We will discuss this further when we
reach Rule 51.
Q: How are decisions to be prepared or written?
A: Every judge has his own writing style. There are those
who write well. They have the facility and mastery of the
language. As to style, the law cannot impose that. But
what is important is it must state the facts and the law on
which the decision or judgment is based. Like when you
answer questions during exams. That is your training.
Parang sumusulat ka na rin ng decision. In the SC, I
consider Justice Renato Puno as a good writer. Justice
Artemio Panganiban. They were campus writers during
their college days. Latest SC appointee, Leonardo
Quisumbing. Also retired justices Isagani Cruz, one of the
best. The late justice Conrado Sanchez in the late 60s.
They write masterpieces. Beautiful and forceful language.
They are just a few of the many. Here are some cases on
decision writing penned by Justice Cruz:
NICOS INDUSTRIES CORP. vs. CA
206 SCRA 127
Justice Isagani Cruz said:
Kilometric decisions without much
substance must be avoided to be sure. But
the other extreme where substance is also
lost in the wish to be brief is no less
unacceptable either. The ideal decision is
that which with welcomed economy of
words arise at the actual findings, reaches
the legal conclusions, renders its ruling and
having done so ends.
What he is saying is you must be brief but
comprehensive. Covered lahat. This I say is a God-given gift.
But you can develop this skill by reading a lot and practice a
lot.
PEOPLE vs. GONZALES
215 SCRA 592
Every judge has his own writing
style. Some tedious. Some terse. Some
pedestrian. Some elegant depending upon
his training and outlook. Each is
acceptable as long as the factual and
legal basis are clearly and distinctly stated
therein.
PEOPLE vs. AMONDINA
220 SCRA 6
The judgment of the RTC judge
was affirmed. But Justice Cruz who was the
ponente cannot help but comment on the
writing style of the judge. He criticized the
decision. He said: The decision of the trial
court is exceedingly long without any effort
to trim the fat and keep it lean. Judges are
not stenographers transcribing the
testimonies of witnesses word for word.
Judges must know how to synthesize, to
summarize, to simplify. Their failure to do so
is one of the main reasons for the delay in
the administration of justice. It also explains
the despair of the public over the foot-
dragging of many courts and their inability
to get to the point and to get there fast.
Alright. Is there a difference between a judgment of
a court and the decision of a court? You look at the pattern of
decisions. Meron diyang caption: A vs.. B. Tapos, may title:
Decision. It starts normally: This is an action for sum of money
xxx. Then summary of the cause of action, the evidence, then
issues, then discussions of fact and law. Then, Wherefore
judgment is hereby rendered dismissing the complaint xxx. Di
ba ganyan?
Ang decision lahat, mula sa umpisa hanggang sa
huli. Ang judgment is how the case is disposed of. A judgment
is a portion of the decision stating how the court disposed of
the case. Wherefore, judgment is hereby rendered ordering
defendant to pay the loan xxx. This is what is called the
dispositive portion. Or also called decretal portion because
the court decreed something to happen. Or sometimes in
some decided cases, the fallo of the case. Yan ang
judgment, yung may wherefore. Ang decision, lahat yan. This
is a case for legal separation.
Yung pre-decision, why plaintiff is correct, why
defendant is wrong, mga justifications or findings of fact, those
are the ratio decidendi, the reason for arriving at the
judgment. The ratio decidendi or the body is sometimes
called the opinion of the court. Because when the court says
this is what happened xxx, actually it is an opinion but it is
binding.
Q: Suppose there is a conflict between the body and the
wherefore portion?
A: The latter will prevail. Because sometimes, if you read
the body, parang panalo ka na. Tapos sa wherefore, the
complaint is hereby dismissed. The wherefore is the official
disposition of the case.
At this stage, let us try to classify and know the types
of certain kinds of judgments. There is of course the ordinary
judgment, meron ding queer type. May defective judgment.
And these are the unusual types:
1. Sin perjuicio - it is a judgment which
contains only the dispositive portion of the decision
and reserves the making of findings of fact and
conclusions of law in a subsequent judgment. So, this
is a wherefore without a ratio decidendi. This is a
void judgment because it violates the constitutional
provision that no decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
2. Conditional judgment - it is a judgment
which is subject to the performance of a condition
precedent and is not final until the condition is
performed. Example: A vs.. B. Then the court said:
The position of A is correct because xxx. However,
there is another case now pending before the SC
where the same issue is being raised. In the
meantime, A is correct. but in the event that SC
decision comes out and is not favorable to A, then
this decision should also be automatically changed
to favor B. So, conditional judgment.
The court said that such judgment contains no
disposition at all. It is a mere anticipated statement of what
the court shall do in the future when a particular event should
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happen. For this reason, judgment of such kind condition
upon a contingency are held to be null and void.
3. Incomplete judgment - It is a judgment
which leaves certain matters to be settled in a
subsequent proceeding. Example: You filed a
damage suit against somebody. Moral, exemplary.
Decision: Wherefore the court finds plaintiff’s cause
of action meritorious and hereby renders judgment in
favor of plaintiff ordering defendant to pay plaintiff
moral damages and exemplary damages. Period.
Without stating any amount as to how much. Kulang.
That kind of judgment does not settle any question
that would be the subject of execution. There is
nothing to enforce. The judgment can never
become final it having left certain matters to be
settled for its completion in a subsequent
proceeding. So, the judgment is again defective.
In one bar examination, the examiner asked this
question. Define a judgment nunc pro tunc. Literally, it means
“now for then”. Example: In my hurry to prepare the decision,
there are some important matters brought out during the trial
which I was not able to incorporate in my decision. Na-
overlook. I would therefore to modify my judgment by
incorporating matters of record which are important in my
decision which somehow I overlooked. So, in effect, I will
amend my judgment and the amended judgment is called a
judgment nunc pro tunc. But definitely, what you can amend
in that kind of judgment are things which really happened.
You cannot place there matters which never really occurred.
That would be irregular. How could you quote something
which never transpired during the trial.
To borrow the language of the court in explaining the
function of a judgment nunc pro tunc, it said: Its function is to
record some act of the court done at a former time which was
not then carried into the record. And the power to make such
entries is restricted to placing upon the record evidence of
judicial action which has actually been taken. It may be used
to make the record speak the truth but not to make it speak
what it did not speak but ought to have spoken.
The SC said: A judgment nunc pro tunc is not proper
in the following instances:
1. It cannot remedy errors or omission in an imperfect
or improper judgment;
2. It cannot change the judgment in any material
respect; and
3. It cannot correct judicial errors however flagrant
and glaring they may be.
Another term of judgment which is very common and
encouraged by the law is judgment upon a compromise,
sometimes called amicable settlement where the parties settle
amicably, write down the agreement and submitted to the
court which will render a decision. The court will simply copy
the agreement. This is a type of judgment with the consent of
the parties for the purpose of effecting a compromise or
settlement of an action. Usually mga collection cases ito.
Tawaran. Like i-condone ang interests. Or half of the amount
na lang, etc. Once submitted the court will say: Finding the
agreement to be legal, not contrary to morals, public policy,
etc. the same is hereby approved. So, the agreement now
becomes a court decision and it is called judgment upon a
compromise. Here, the court is not required to make findings
of fact and conclusions of law. In contemplation of law, the
court is deemed to have adopted the statement of facts and
conclusions of law made and resolved by the parties
themselves in their compromise agreement and their consent
has made it both unnecessary and improper for the court to
make a preliminary adjudication of the matters there under
covered.
How do you define a compromise? The civil code
has a definition.
Art. 2028. A compromise is
a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put
an end to one already commenced. (NCC)
There are other definitions given by the SC like in the
case of:
SMITH BELL & CO. vs. CA
197 SCRA 201
A compromise is an agreement
between two or more persons who in order
to forestall or put an end to a lawsuit, adjust
their differences by mutual consent an
adjustment which everyone of them prefers
in the hope of gaining more balance
against the danger of losing more.
Kaya in a compromise agreement, there are no
winners and there are no losers.
REPUBLIC vs. SANDIGANBAYAN
226 SCRA 314
This is the compromise between
the government and the Benedicto family,
a crony of former Pres. Marcos. The SC said
a compromise has its very essence
reciprocal concessions. One must give if
one must take. If only one takes all, then
one must first win. But in a compromise, all
win by taking some and giving some.
Q: Who can enter into a compromise agreement which will
be the basis of the court’s decision?
A: Only the parties. The lawyers have no authority to enter
into a compromise agreement. Except if he is authorized in
writing by a special power of attorney. That is the reason
why in a pre trial conference, the law requires the personal
presence of the parties, not only the lawyers.
Q: Suppose the lawyer enters into a compromise
agreement without the authority of his client. What kind of
compromise agreement is that?
A: I do not think it is void. That is what you call an
unenforceable agreement. You try to look at
unenforceable contracts. But it can be ratified. If his client
learns about it and he does not repudiate it, in effect he
has ratified the agreement entered into by his lawyer and
the other party.
Finally, what are the legal effects of a judgment upon
a compromise?
1. A judgment upon a compromise is
not appealable and is immediately
executory. No appeal because you
yourselves enter into it.
2. It cannot be annulled unless it is
vitiated by error, deceit, violence or
forgery of documents.
3. It constitutes res adjudicata.
Meaning, the issue can no longer be
litigated. It is barred by prior judgment.
Q: This has been a perennial problem in the bar. Suppose
you want to set aside a compromise agreement because
it was vitiated by error, deceit, etc. How do you get out of
it?
A: You cannot appeal kasi hindi appealable. Of course,
you can initially file a motion to set aside the compromise
Page 200 of 296
 agreement citing those grounds. But the other party does
not agree with you. Kung nag-agree, walang problema.
Puwedeng i-set aside. Kung hindi? The court might deny
your motion to set aside.
There was a decided case before where the SC said:
You appeal from the order denying your motion to set it aside,
You cannot appeal from the judgment upon a compromise.
Let us go to Rule 41, Sec. 1:
Sec. 1. Subject of appeal. - An
appeal may be taken from a judgment or final
order that completely disposes of a case or of a
particular matter therein when declared by
these rules to be appealable.
No appeal may be taken
from: xxx
(e) An order denying a motion
to set aside a judgment by consent, confession
or compromise on the ground of fraud, mistake,
or duress or any other ground vitiating consent.
xxx
In all the above instances
where the judgment or final order is not
appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
(n)
So, an order denying a motion to set aside a
compromise judgment is not appealable. The former answer
which was given by the SC may no longer be correct right
now because of this new provision. You cannot appeal from
that order denying your motion to set it aside. So, what is your
remedy? To my mind the remedy is what the SC said in the
recent case of:
DOMINGO vs. CA
March 20, 1996, 255 SCRA 189
The remedy is you file a civil action
before the CA for annulment of judgment.
The SC through Justice Kapunan said: A
compromise may be disturbed or set aside
for vices of consent or forgery. Hence,
where an aggrieved party alleges mistake,
fraud, violence, intimidation or undue
influence or falsity in the execution of a
compromise embodied in a judgment, an
action to annul it should be brought to the
CA in accordance with Sec. 9, par. (2) of BP
129 which gives that court exclusive original
jurisdiction over actions for annulment of
judges of regional trial courts.
Another type of judgment which is very rare but
recognized in law is what is called judgment upon a
confession. Or some writers call it cognovit judgment.
(Pronounced conyuvit.) A judgment upon a confession is a
judgment entered against a person upon his admission or
confession of liability without the formality, time and expense
involved in an ordinary proceeding. Example. You file a case
against me. Without filing an answer, I can simply manifest in
court I am confessing liability. I am willing to have judgment
immediately rendered against me. Or, I can also file my
answer. Kunwari lang and then in court I admit my liability.
That would be the basis of the judgment upon a confession.
In criminal law, that is when you plead guilty. So,
tapos na ang kaso. In American Law, they call it no lo
contendere, meaning no contest. Hindi ako lalaban. So,
render judgment against me.
There was a case decided by the SC on the issue of judgment
upon a confession:
NATIONAL BANK vs. MANILA OIL CO.
43 PHIL 444
During the early part of the
century after the Spanish regime but during
the American regime (1900-1945), there
were American lawyers who practiced law
in the Philippines. They introduced to us
especially in contracts certain clauses
which are used in contracts in the US. The
clause is Warrant of Attorney to Confess
Judgment.
Example, you borrowed money
from the bank and signed a promissory
note. The lawyers insert this clause: In case
the bank will file a case against you under
that promissory note to collect from you, the
defendant is confessing judgment. He is not
going to contest the case. Meaning for the
purpose of confessing judgment, he is
appointing the bank as his representative to
confess judgment for him. So, pag-file ng
kaso, the bank will say: Your honor, I am the
plaintiff and also the representative of the
defendant. And as representative of the
defendant, I admit liability in accordance
with this clause. So, as representative of the
defendant I admit liability in favor of myself.
So, even before the case is filed, you are
already admitting liability. And you are
confessing judgment in advance. So, that
was a standard clause found in American
contracts which was introduced by
American lawyers to the Philippines.
The SC declared that clause as
illegal. It is a stipulation contrary to law,
morals, order, public policy. Because it is
contrary to public policy for a defendant to
confess liability even before he is sued. He is
waiving his right to defend himself in
advance. That is very unfair.
With that, is confession of judgment illegal? I am not
saying that. What I am saying is confession of judgment in
advance. Even before the case is filed, you are already
waiving your right to defend yourself. That is definitely unfair.
But if you are sued and you tell the court you are admitting,
there is nothing wrong with that.
Final point. Is there a difference between a
judgment upon a compromise and a judgment upon a
confession? In a judgment upon a compromise, the liability of
the defendant is to be determined in accordance with the
terms of the agreement, whereas in a judgment upon a
confession, defendant confesses the action and consents to
the judgment that the court may render in accordance with
the complaint and the prayer therein. So, unilateral. The
defendant on his own will admit liability. In a compromise
agreement, give and take, eh. Reciprocal concessions.
Ano ang kaibahan niyan sa judgment on the
pleadings? Actually the difference is very slight. A judgment
on the pleadings under Rule 34, defendant will file an answer.
The answer contains no defense. Dito, he may not even file an
answer. Upon receiving the complaint, he just says I am
admitting liability. There is no need of a default.
Judgment upon a confession. Judgment upon the
pleadings. Default judgment. Magkahawig sila. Only they
vary a little bit. In default judgment, the defendant failed to
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file an answer. So, he is declared in default. In judgment upon
the pleadings, defendant filed an answer but the answer
contains no defense. In judgment upon a confession, he will
not file an answer but will tell the court that he is admitting
liability. So, lahat will end up on the same thing: There will be
a judgment rendered against the defendant.
Judgment upon Judgment upon Judgment on
compromise confession pleadings
Liability of Defedant Defendant will
defendant is to confesses the file answer
be determined in action & consents
accordance w/ to the judgment
the terms of the that the court
agreement may render in
(reciprocal) accordance w/
the complaint &
the prayer
(unilateral,
defendant
admits, may not
file an answer)
Sec. 2. Entry of judgments and final
orders. - If no appeal or motion for new trial or
reconsideration is filed within the time provided
in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be
the date of its entry. The record shall contain the
dispositive part of the judgment or final order
and shall be signed by the clerk, with a
certificate that such judgment or final order has
become final and executory. (2a, 10, R51)
The rule is similar in criminal cases.
Q: Suppose you are convicted, what are your options as
the accused?
A: You can appeal within the time provided in the rules.
Generally 15 days. Or, in criminal case, you can file a
motion for new trial Rule 121 or a motion for
reconsideration. If denied, puwede pa akong mag-
appeal. In civil cases, the rule is the same. If there is no
appeal or motion for new trial or motion for reconsideration
within the time provided in the rules, the judgment or order
shall become final. With that, the case is finished and the
judgment can no longer be changed. And according to
the law, the clerk of court shall make an entry of final
judgment in its book of entries of judgment.
Sa office ng clerk of court, may tinatawag sila na
Book of Entries. That is a listing of all cases filed there
chronologically arranged. Malaking libro yan. Tapos,
nakalagay doon judgment rendered where the dispositive
portion is stated. If there is no appeal within 15 days, the
judgment becomes final and the clerk of court will record it.
Judgment became final and executory as of say, February 15,
1998.
When did the judgment become final? February 15,
1998. When was the entry made? Say, February 26, 1998. The
date of finality and the date of entry are not the same
because it would take the clerk of court some time to note it in
the book of entries. Now, under the new rules, for the first time
in 1997, the rules say that the date of finality of the judgment or
final order shall be deemed to be the date of its entry. So,
going back to my example. Judgment became final on
February 15. The clerk of court will know today February 26
that the judgment is final. Now, when is the entry? The entry
retroacts to February 15. The date of entry and date of finality
are now considered as the same. Whether you delayed the
entry or not, the date of entry retroacts to the date of finality.
And that is a good rule. You know why? Under the
old rule, magkaiba yung dates nila. And as we shall see later,
there are certain remedies under the rules where you count
the period from the date of entry. The reckoning point is
computed from the date of entry of final judgment and not
the date of finality. Suppose the clerk of court is lazy. He
placed to forgot the date of entry. Therefore, you won’t even
know when you will start computing. Normally, you start
computing from the date of finality. But since the law says it
shall start from the date of entry of judgment, tapos the clerk
of court made the entry six months later pa. So, I start
counting six months pa when the judgment became final six
months ago. Ngayon, even if you make the entry after 3
months, everything goes back to the date of finality. It is a
very simple sentence but it meant a lot.
And before we proceed further, when the judgment
in a civil case becomes final because no appeal was made
within the 15 day period to appeal, or there is no motion for
new trial or reconsideration, what are the legal effects of the
finality of a judgment or order in a civil case? If a judgment or
order becomes final, what are its important effects?
1. The prevailing party is entitled to have the judgment
executed as a matter of right and the issuance of
corresponding writ of execution becomes a ministerial duty
of the court.
Example, you lose a case and you are ordered to pay me
P100T. No appeal, no nothing. So, final. With that, I will now
file a motion for execution under Rule 39. I will ask the court for
a writ of execution and the court has to issue automatically an
order directing the sheriff to enforce the judgment. And the
court cannot refuse that because once the judgment has
become final, the prevailing party is entitled to have the
judgment executed as a matter of right and the judge has the
ministerial duty to issue the writ of execution.
2. The court rendering the judgment loses jurisdiction over the
case so that it can no longer correct the judgment in
substance to make corrections of clerical errors or mistakes.
Meaning, I am the court, I render a judgment. Now,
one party files a motion for reconsideration saying that the
judgment is wrong. Can I change it? Of course, because the
judgment has not yet become final. But once it becomes
final, I no longer have the power to change my own judgment
in substance.
Halimbawa, mali talaga. There is a wrong
application of the law. You can no longer change it. The error
also has become final. Puwede ko lang palitan kung mali ang
spelling, clerical errors. Actually you are not changing it, you
are merely polishing it. Yan ang mga puwede.
But there are some well-known exceptions to that.
There is a type of judgment where it can be changed even
after it had long become final. Even in substance by way of
exception to the general rule. An action for support under the
family code. When the judgment was rendered 5 years ago,
P1,000 yung nakuha mong monthly support. Eh ngayon
malaki ka na, nag-aaral, bagsak pa ang piso, hindi na
magkasya ang P1000. You can go to court and ask that the
judgment of P1,000 for your support be increased to say,
P3,000. And that is allowed. Exception nga eh. Because
support depends on the needs of the obligee and the
resources of the obligor. So, if the father naman ang nawalan
ng trabaho, he can also ask the court to reduce the amount
of support. Wala kang magawa. So, a judgment for support
can be modified at any time.
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3. The principle of res adjudicata supervenes.
Meaning, the same action can no longer be filed in
the future because any case involving the same subject
matter will be dismissed. Any subsequent case is barred by
prior judgment.
Sec. 3. Judgment for or against
one or more of several parties. - Judgment may
be given for or against one or more of several
plaintiffs, and for or against one or more of
several defendants. When justice so demands,
the court may require the parties on each side
to file adversary pleadings as between
themselves and determine their ultimate rights
and obligations. (3)
What is contemplated here is that there is more than
one plaintiff or more than one defendant.
Q: Is it possible that in one case, one defendant will win
and the other defendant will lose?
A: Of course because we do not know their defenses.
kanya-kanya yan eh. So, the court can render judgment
for or against one or more plaintiffs or one or more
defendants. So, it does not follow that everyone on your
side will win.
Sec. 4. Several judgments. - In an
action against several defendants, the court
may, when a several judgment is proper, render
judgment against one or more of them, leaving
the action to proceed against the others. (4)
Same concept. The court may decide for one
defendant and leave the case for trial as to the rest. That is
possible. The trial has already ended as far as one defendant
is concerned. but the case will continue with respect to the
others. You look at the order of trial. It is possible na putol-
putol eh. If that is so, it is possible for the court to render
judgment insofar as one defendant is concerned. I-continue
naman yung iba. This was applied by the court in the case of:
MUNICIPALITY OF BINAN vs. GARCIA
The municipality of Binan, Laguna
filed an expropriation case against several
landowners. One complaint against several
defendants. One landowner asked that his
case be tried ahead of the others. So, the
court rendered a judgment as far as that
one landowner was concerned. His land
was ordered expropriated. So, continue
yung trial with the other landowners. Is that
type of procedure correct? Or kailangan
ba sabay-sabay silang lahat? Isang
complaint, isang decision lang?
The SC said Sec. 4 allows several
judgments depending on how many parties
there are.
Sec. 5. Separate judgments. - reconsideration in criminal cases?
When more than one claim for relief is presented
in an action, the court, at any stage, upon 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 the claim, may render a
separate judgment disposing of such claim. The
judgment shall terminate the action with respect
to the claim so disposed of and the action shall
proceed as to the remaining claims. In case a
separate judgment is rendered, the court by
order may stay its enforcement until the
rendition of a subsequent judgment or
judgments and may prescribe such conditions
as may be necessary to secure the benefit
thereof to the party in whose favor the judgment
is rendered. (5a)
This is similar to Sec. 4.
Sec. 6. Judgment against entity
without juridical personality. - When judgment is
rendered against two or more persons sued as
an entity without juridical personality, the
judgment shall set out their individual or proper
names, if known. (6a)
In relation to:
Rule 3, Section 15 – file a case against entity w/o
judicial personality
Rule 14, Section 8 – how to summon them
Rule 36, Section 6 – how judgment is rendered
End of Rule 36.
Rule 37
NEW TRIAL OR RECONSIDERATION
In criminal procedure, there is also a counterpart rule.
If there is a motion for new trial or motion for reconsideration in
criminal cases (Rule 121), there is also the same remedy in civil
cases.
Sec. 1. Grounds of and period for
filing motion for new trial or reconsideration. -
Within the period for taking an appeal, the
aggrieved party may move the trial court to set
aside the judgment or final order and grant a
new trial for one or more of the following causes
materially affecting the substantial rights of said
party:
(a) Fraud, accident,
mistake or excusable negligence which
ordinary prudence could not have guarded
against and by reason of which such aggrieved
party has probably been impaired in his rights:
or
(b) Newly discovered
evidence, which he could not, with reasonable
diligence, have discovered and produced at
the trial, and which if presented would probably
alter the result.
The rule is the same in criminal cases.
Q: When do you file a motion for new trial or a motion for
A: Within the period to appeal before the judgment
becomes final and executory. And as a general rule just
like in criminal cases, the period to appeal is 15 days. So,
the same story although as we shall we in civil cases, there
are 2 periods to appeal, 15 or 30 days. But the general rule
is 15. So, if you receive the decision today, Feb. 27, your
last day to appeal is March 14. Between tomorrow and
March 14, you can file a file a motion for new trial or a
motion for reconsideration. So, I cannot file it after March
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 14 because by that time, the judgment is already final and
executory. And one of the effects of a final judgment that
we have already discussed last night is that the court can
no longer change its judgment. It can no longer change
or reconsider.
Q: If you file a motion for new trial or a motion for
reconsideration, and your motion is denied, can you still
appeal?
A: Yes, but by that it might already be beyond 15 days.
But no problem because as we shall we, when you file a
motion for new trial or a motion for reconsideration, the
running of the period to appeal stops. It is just like filing a
motion to dismiss, it stops the running of the period to
answer. Or when you file a motion for a bill of particulars.
Now, when you receive the order denying your motion,
you still have the balance of the 15 day period to make an
appeal.
What are the grounds for a new trial in civil cases?
There are two and the first is:
1. Fraud, accident, mistake or
excusable negligence which ordinary
prudence could not have guarded
against and by reason of which such
aggrieved party has probably been
impaired in his rights.
We have already met this fraud, accident, mistake or
excusable negligence in R.9, Sec. 3 (b):
(b) Relief from order of default. - A party
declared in default may at any time after notice
thereof and before judgment file a motion under
oath to set aside the order of default upon
proper showing that his failure to answer was
due to fraud, accident, mistake or excusable
negligence and that he has a meritorious
defense. In such case, the order of default may
be set aside on such terms and conditions as the
judge may impose in the interest of justice.
So, FAME is a ground for a motion to lift the order of
default and you want to regain your standing. Under Rule 37,
if you lose a case, you can also file motion for new trial or a
motion for reconsideration on the ground that you have been
a victim of FAME that had substantially prejudiced you. So,
there must be a relationship between these two that is why I
did not bother to explain this FAME in Rule 9 because we will
meet them again here.
So, what is the connection? A defendant is declared
in default. He received a copy of the order declaring him in
default. And the reason why he is declared in default is FAME.
If you are the lawyer of the defaulted defendant, will you file a
motion for new trial under Rule 37 or will you file a motion
lifting the order of default under Rule 9 because anyway the
grounds are identical?
Q: What does Sec. 3(b), Rule 9 say?
A: A party declared in default may at any time after notice
thereof and before judgment file a motion under oath to
set aside the order of default xxx. At any time after notice.
Meaning, you are notified that you are declared in default
but before judgment.
Q: Eh, halimbawa, meron ng judgment? There is now a
default judgment against the defendant.
A: This time he can longer file a motion to lift the order of
default. Meron ng decision, eh. So, the correct remedy is
to apply Rule 37. I will move to set aside the judgment and
grant a new trial because of FAME. So, Rule 37 is a possible
remedy of a defaulted defendant on the assumption that
he already lost his remedy under Rule 9. That is the
connection.
However, you might think that Rule 37, Sec. 1(a)
applies only to a defaulted defendant. Even if a defendant
has not been declared in default for as long as he is a victim of
FAME, he can file a motion for new trial. Even if he is not
declared in default.
Q: How about the plaintiff? Can he file a motion for new
trial under par. (a)?
A: Yes if the plaintiff lost the case because he was also a
victim of FAME. Kaya the remedy of new trial is broader. It
applies to a plaintiff. It applies to a defendant. Or to a
defendant declared in default. Rule 9 is more limited. It
only apples to a defaulted defendant but there is still no
default judgment. Because if there is already a default
judgment, his remedy is to file a motion for new trial. That is
why the grounds are identical.
Therefore we will explain what do you mean by
Fraud? By Accident? By Mistake? And by Excusable
negligence?
FRAUD - Panloloko. There are 2 kinds of fraud.
Extrinsic (or collateral fraud) and Intrinsic fraud. Of the two,
the extrinsic fraud is a ground for a motion for new trial. How
do you distinguish one from the other? There are many cases
where the SC defined these two:
GARCIA vs. CA
202 SCRA 248
Extrinsic fraud is a fraud which has
prevented a party from having a trial or
from presenting all of his case to the court.
Intrinsic fraud is a fraud which takes the form
of acts of the party in a litigation during the
trial, such as the use of forged instruments or
perjured testimony which did not affect the
presentation of the case, but did prevent a
fair and just determination of the case. And
that is not a ground for new trial.
In another case, the SC said extrinsic fraud is where
he was misled by the adverse party and by reason thereof, he
was prevented from presenting his case properly.
Example: The plaintiff sues defendant. The trial is
next week. Suppose the plaintiff’s lawyer will call up
defendant’s lawyer and say: Are you ready for trial next
week? Yes. Postpone na lang natin because you see I will be
busy and I still lack some evidence. Okay, so hindi na ako
magsipot. Oo, I will just tell the court. So, the defendant did
not go to court. But during the trial, when the case was called,
the plaintiff says: I am ready. Saan ang defendant? Wala,
your honor. So, naisahan yung defendant. So, the case was
heard ex parte. There was a judgment rendered against
defendant. Meaning, what the plaintiff did was a form of
panloloko which prevented you from having your day in court.
Yan ang extrinsic fraud. That is a ground for new trial. The
fraud exercised by the other party which has probably
impaired you in your rights.
An example of intrinsic fraud is this. Trial. You are the
lawyer for the defendant. I am the lawyer for the plaintiff.
Now, I present a witness who is a liar. So, ang testimony niya is
false. He lied under oath. False testimony. Then I will present
evidence to prove my case but all these evidence are
falsified. Manufactured. So everything is a perjured and
falsified documents. Then nadaog mi sa kaso. Later you
found out that the evidences and documents were perjured
and falsified. those witnesses pala are liars. So file ka ng
motion for new trial on the ground that the other party is guilty
of fraud. Actually, he fooled everybody including the court.
Q: Is that a ground for new trial?
A: The answer is no. That is intrinsic fraud. Fraud in the
presentation of the case. But the defendant was not
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 prevented from going to court. You had participated in
the trial. Did I prevent you from going to court? No, you
were there. You were given the chance to be heard. That
is supposed to be your duty as a lawyer to expose these
witnesses. It is your duty to discover that the witness is lying,
that the documents are falsified. And during rebuttal, you
can present proof that this person is lying, etc. But you
failed to do it because you did not study the case. So,
pasensiya ka.
So, intrinsic fraud should be exposed during the trial.
And therefore, if you failed to expose it, you cannot complain
later na natalo ka because of fraud. That is intrinsic fraud. Ang
ground for new trial, extrinsic fraud. I saw to it that you will not
be in court. So, that is the distinction between intrinsic and
extrinsic fraud.
ACCIDENT - it is something like fortuitous event.
Something unforeseen happened. Or for example, I lost the
case, I failed to file an answer and because of that there was
a declaration of default and judgment by default. Or, I failed
to appear in court and therefore my complaint was dismissed.
Or, I failed to appear in court and therefore the plaintiff was
allowed to present evidence ex parte. Now there is a
judgment. And you tell the court: Your Honor, I failed to
appear in court because on that day I got sick. Bigla. And
there was no way for me to communicate my condition. That
is accident.
Or I was declared in default and there was judgment
against me because I did not file an answer. I filed an answer.
As a matter of fact I have the copy of the answer and the
registry receipt that I mailed it in the post office. Meaning, ang
nakawala ang post office. So, bakit ako ang sisihin? That is an
accident. Unforeseen.
Or, you are notified by the court that the trial will be
next week. But the notice never reached you. So, you never
came to know about it. Tapos natalo ka. So, you would argue
in court na you never received the notice. There is no
evidence that I have received it. So, a new trial is proper on
the ground of accident.
MISTAKE - Mali. An example of this was the old case of:
SALAZAR vs. SALAZAR
The defendant was served with
summons and a copy of the complaint. Of
course, he is supposed to answer within 15
days otherwise he will be declared in
default. Instead of hiring a lawyer,
defendant went to the plaintiff and offered
settlement. Areglo. However, the
settlement did not materialize. But in the
meantime, the period to answer expired
without defendant filing an answer. So,
after 15 days, na-default siya. So, this time
he hired a lawyer who in turn asked the
court for a new trial on the ground that
defendant did not know about the rules.
He thought that by directly talking to the
plaintiff, ayos na. And the SC said that the
failure to file an answer was caused by
mistake. Mistake made by an ordinary
man/ layman can be a ground for new
trial.
In another case, a mistake was committed by a
lawyer kaya natalo ang client. After he lost, he hired another
lawyer. After studying the case, the second lawyer said mali
man yung first lawyer mo. So, we will file a motion for new trial
on the ground of mistake committed by the first lawyer. The
SC said mistake of a lawyer is not a ground for new trial.
Because the rule is: the client is bound by the mistakes
committed by his lawyer. Otherwise, if we will grant the motion
for new trial, and then the client lost again, he will again file a
motion for new trial because his second lawyer committed a
mistake. And so on. Walang katapusan ang trial. Everytime
you lose, your new lawyer will blame the previous lawyer.
The only decision is based on equity decision like the
case of:
PEOPLE VS MANZANILLA
43 P 167
Ruling: A new trial is sometimes granted
where the incompetency or negligence of
the party’s counsel in the conduct of the
case is so great, the party’s right is
prejudiced and he is prevented in
presenting his cause of action or defense.
EXCUSABLE NEGLIGENCE - Nagkamali yung party or
lawyer. Of course, if there is excusable negligence, there is
must be an inexcusable negligence. It is very hard sometimes
to determine when negligence is excusable and when it is not.
Our only guide here is to go to jurisprudence where a lawyer
files a motion for new trial citing excusable negligence. Let us
find out how the court ruled on them.
A lawyer failed to file an answer to a complaint.
Defended was declared in default. The lawyer said: Your
Honor, I am a busy man, hindi ko nasulat na ito yung deadline.
I simply failed to note it down because I am so busy. Sabi ng
SC, that is not a ground for new trial. That is inexcusable
negligence. A lawyer has no reason to say I failed to file an
answer because I forgot to note it down in my calendar.
Or you failed to appear for trial. So, natalo ang
kliyente mo. Your honor, motion for new trial. Excusable
negligence. I failed to appear in court because hindi ko
nasulat sa kalendaryo ko ang date of trial. Patay ka diyan.
That is never considered an excusable negligence. Or hindi
ako nakapunta judge because the night before I attended a
party. Nahubog ko. I failed to wake up for the trial. Pasensiya
na lang.
Or, his secretary failed to note it in his calendar. She
received the notice but hindi binigay or pinaalam sa akin. You
see judge my secretary is newly hired. Hindi pa niya alam
masyado ang patakbo sa office. Kulang pa ng training. And
the SC said that is not an excuse. You will always blame your
staff. Why did you not teach her? do not blame your
secretary. Blame yourself.
There are other cases naman na lumusot yung
lawyer. The lawyer filed an answer. The deadline is tomorrow.
He told his secretary to have it filed today because he was
leaving tonight for an out of town trip. He will be out for a
week. Pero the following day, nagkasakit naman yung
secretary. Hindi nag-report. So, hindi na-file. Na-default. And
the SC granted the motion for a new trial.
Or your trial is in the afternoon pero nasa Manila ka
pa. You took the flight in the morning para makahabol. But
because of some delay, the plane departed late so, hindi ka
umabot sa trial. Okay naman sabi ng SC.
There is one case where the SC gave a very nice test
to gauge whether the negligence is excusable or not. The SC
said the standard of care required of a party is that which an
ordinarily prudent man bestows on his important business.
Example: If an appointment is not so important and
you forgot all about it, can I accuse you of gross negligence?
I don't think so. Anyway it is not really something important.
But, if a matter is so important and you forgot all about it, I
don't think that is an excuse. You are a businessman and you
have a transaction with somebody involving millions of pesos.
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Tapos, you just say sorry ha, nakalimutan ko. I think there is
something wrong with you. The standard of care on your part
is not excusable.
Or, after class hours, a friend tells you kita ta sa balay
ugma. Inom-inom lang. Tapos, hindi ka nakasipot dahil
nakalimot ka. Sorry, ha? Excusable man yan ba. Hindi
naman yan importante, eh. Pero sa isang linggo kasal mo,
tapos hindi ka nakapunta ng simbahan. Sorry, nakalimutan
ko. Patay. If you forget something which you have no reason
to forget, that constitutes inexcusable negligence. That is also
the same standard of care in cases.
The second ground for new trial is (b):
Newly discovered evidence, which he could
not, with reasonable diligence, have discovered
and produced at the trial, and which if
presented would probably alter the result.
This is identical with that in criminal procedure. Newly
discovered evidence. What are the requisites for this ground
to be invoked?
1. The evidence was discovered after
trial.
2. It could not have been discovered
before trial even with the exercise of
reasonable diligence.
3. That if admitted, such evidence
would probably alter the result.
Suppose the evidence was all along in the presence
of the party but somehow nalimutan niya. Then, natalo siya.
He realizes ito pala ang dokumento. Sayang, if this document
had been presented, puwede pala akong manalo. So,
motion for new trial. Newly discovered evidence. The SC said
that that is not newly discovered evidence. That is forgotten
evidence.
But suppose may decision na. Talo ka. Tapos here
comes somebody who tells you na-witness niya yung
pagbayad mo sa complainant. Bayad ka na. Kita ko pa nga,
eh. So, you file a motion for new trial because you never knew
of about this person before who is a reliable witness. Pag
ganyan, okay yan. It is not necessary that the newly
discovered evidence, if admitted would entirely change the
result of the case. At least there is a chance that I would win.
May fighting chance ba.
Distinguish a motion for new trial from reopening of
trial.
New trial is of course governed by Rule 37. The case
is already decided and then the losing party files a motion to
reopen the case, set aside the judgment. Let us have a new
trial based on 2 possible grounds.
Reopening of trial is a recognized practice without
any definite rule. There is no specific rule in the rules of court
telling us this is the procedure, etc. But reopening is related to
Rule 30 on trial. Let us go back to trial. How is trial conducted?
Plaintiff presents evidence. Defendant presents evidence.
Both sides present rebuttal evidence. Then arguments.
Decision. Tapos na. There is no more presentation of
evidence kasi tapos na eh. But in reopening of trial, the court
will order the trial to be reopened for the presentation of
additional evidence. What kind of additional evidence?
Newly discovered? Not necessarily. Because according to
the SC, new trial has to be distinguished from the exercise of
the discretionary of the court to reopen a trial for the
introduction of additional evidence to clarify its doubts on
material points. That is the only difference. This discretionary
power is subject to no rule other than the paramount interest
of interest of justice and will not be reviewed on appeal unless
the exercise thereof is abused. What is the rule? There is no
rule. It is subject to no rule.
Is it done upon motion by a party? Yes, but it can
also be done by the court motu propio. Example: A case
involving the ownership of a piece of land. The land is situated
somewhere there, several kilometers away. Of course, the
property was described during the trial. May mapa, tax
declaration, etc. So the court has an idea how big is the
property, the improvements, etc. So, the court will now
decide who should be the owner of the property. But the
court may say teka muna, before I would render my decision I
think I would want to see the area. Ocular inspection. Despite
the fact that the trial is through. Alright, reopen the trial
because would like to see the property itself. Let us find out
whether the improvements are really existing. That is what is
called a reopening of trial. Nobody asked for it. The court
decided to have it reopened. Can you prevent the court from
doing that? No because the intention of the court is to clarify
its doubts. Kaya nga it is subject to no rule other than the
paramount interest of justice.
Or it can also be done by motion of a party.
Example: The court will now render a decision. One of the
parties stumbled on newly discovered evidence which even
with reasonable diligence could not have discovered and
produced during the trial and when presented would
probably make that party win. Should I file a motion for new
trial based on newly discovered evidence under Sec. 1(b) of
Rule 37? No. Why will I file a motion for new trial na wala pa
namang decision? Because you can file a motion for new trial
when there is already a judgment against you and you would
like to have a new trial based on newly discovered evidence.
But suppose there is still no decision but I came across
a newly discovered evidence which I was not able to present
during the trial? The trial is over. I want to convince the court
to reopen para I can present this new evidence. So, new trial
is not the appropriate remedy as there is still no judgment.
How will I do it? You file a motion for reopening of the trial. In
other words, we will go back to Rule 30. That is the difference
between a motion for new trial and a motion for reopening of
trial. What is closed bubuksan naman natin.
There is a second type of motion governed by Rule
37 which is more common. A motion for reconsideration.
What is the ground for a motion for reconsideration. That is the
last paragraph of Sec. 1:
Within the same period, the
aggrieved party may also move for
reconsideration upon the grounds that the
damages awarded are excessive, that the
evidence is insufficient to justify the decision or
final order, or that the decision or final order is
contrary to law. (1a)
You file a motion for reconsideration also within the
same period. Within the period to make the appeal - 15 days.
When a part loses he files a motion in court to convince the
court to change its mind. The grounds are:
1. the damages awarded are
excessive;
2. the evidence is insufficient to justify
the decision or final order; or
3. the decision or final order is
contrary to law.
You are going to convince the court to reverse itself.
From losing, ikaw dapat ang manalo. So, this is more
common. And if you succeed, the court will issue an order
reducing the damages. Or it will entirely render a new
decision and reverse itself. The first decision will be set aside
Page 206 of 296
and a new one is entered in your favor. That is what
reconsideration is all about.
Sec. 2. Contents of motion for new
trial or reconsideration and notice thereof. - The
motion shall be made in writing stating the
ground or grounds therefor, a written notice of
which shall be served by the movant on the
adverse party.
A motion for new
trial shall be proved in the manner provided for
proof of motions. A motion for the cause
mentioned in paragraph (a) of the preceding
section shall be supported by affidavits of merits
which may be rebutted by affidavits. A motion
for the cause mentioned in paragraph (b) shall
be supported by affidavits of the witnesses by
whom such evidence is expected to be given,
or by duly authenticated documents which are
proposed to be introduced in evidence.
Let us just stop there first. What is the form of a motion
for new trial or reconsideration? The first paragraph says it
must be in writing, state the ground whether it is FAME or newly
discovered evidence. And as in all motions, there must be
notice to the parties. Then the second paragraph says xxx A
motion for new trial shall be proved in the manner provided for
proof of motions. xxx How do you prove a motion? It depends.
If it requires an affidavit, you attach the affidavit. If it does not
require one, no need. In other words, you go back to the
basics. How do you convince the court that your position is
correct? Let us go back to Rule 15, Sec. 3:
Sec. 3. Contents. - A motion shall
state the relief sought to be obtained and the
grounds upon which it is based, and if required
by these Rules or necessary to prove facts
alleged therein, shall be accompanied by
supporting affidavits and other papers. (3a)
Meaning, if required by these rules, it must be
supported by supporting affidavits and other papers. Like
when you file a motion on the ground of illness of a party or a
witness or a counsel, you support it with a verified medical
certificate.
Q: Going back to Rule 37, what are the legal requirements
if you file a motion on the first ground (FAME)?
A: Sec. 2 says xxx A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported
by affidavits of merits which may be rebutted by affidavits.
xxx So, here is one instance where the rule of court require
that a motion be supported by affidavits.
If your ground is FAME, it must be supported by affidavits of
merits. That is the term. The SC said that an affidavit of merits is
one which recites the nature, character of the FAME on which
the motion is based and the movant’s good and substantial
cause of action or defense and the evidence he intends to
present if the motion is granted which evidence must be such
as to warrant a reasonable belief that the result of the case
would probably be otherwise if a new trial is granted.
Meaning, the party filing a motion for new trial will now state
his ground. I was a victim of FAME. What really happened?
You have to prove why is there FAME. Kulang pa yan. Aside
from being a victim of FAME. I have a good cause of action or
defense which if there will be a new trial, I might win.
Q: Therefore what happens if a party files a motion for new
trial without any affidavit of merits?
A: The defect or omission is fatal. The motion will
automatically be denied. And that is what is called a pro
forma motion. A pro forma motion for new trial is a motion
which does not comply in substance and in form with the
requirements of Secs. 1 & 2 of Rule 37. And the best
example of this is a motion for new trial based on par. (a)
of Sec. 1 and it is not supported by an affidavit on merits.
Effect: The motion for new trial is automatically denied.
That is the first effect.
Q: If a motion for new trial is denied, can the movant still
appeal the decision? Normally, if you lose a case and you
file a motion for new trial, what happens to the period to
appeal?
A: The running of the 15 day period will automatically stop
and it will remain uninterrupted until the motion is denied.
When the motion is denied and you receive the order, you
can still appeal because the period will now start to run
again. Even if your appeal is more than 15 days, no
problem because I still have the balance to make my
appeal. Yan ang normal rule.
But in the case where you file a motion for new trial
and it turns out to be pro forma and it is denied, you cannot
appeal because the filing of the motion for new trial did not
interrupt the running of the period. Without realizing it, the 15
day period continues to run. Well, if your motion for new trial is
denied on some other ground, hindi pro forma, you can still
appeal. Pero pag pro forma, patay. Your right to appeal is
considered as lost. And this principle is now incorporated in
Sec. 2 which is the last paragraph. Let us jump to that:
A pro forma motion for new
trial or reconsideration shall not toll the
reglementary period of appeal. (2a)
Suppose I will file a motion for new trial. Merong
affidavit of merits. Pero you did not recite why you are a
victim of FAME. You only said you have a good cause of
action but failed to elaborate further. Meaning, you should
have gone into details.
MALIPOL vs. LIM TAN
55 SCRA 202
An action for damages filed
against an operator of a bus company for
bumping and running over a pedestrian.
Damages arising from culpa aquiliana. The
defendant defaulted and a decision was
rendered where he was held liable for the
damages. the defendant filed a motion for
new trial arguing that the reason why he
failed to file an answer was because of
FAME. And then he recited the
circumstances surrounding the FAME.
Affidavit of merits plus a meritorious
defense. He intended to prove that he
exercised due diligence in the selection
and supervision of his employee the driver
and which if proven, he will not be held
liable. The issue was whether the affidavit of
merits is in accordance with those listed or
not? Parang sufficient na. He says he was
a victim of FAME. He recited why. He has a
meritorious defense which is he exercised
due diligence in the selection and
supervision of his employee. And if he
succeeds, he would be absolved of the
liability.
The SC said your motion is pro
forma. It is not enough to say that you have
a meritorious cause of action or defense
and this is my defense. You must state in
your defense how you exercised diligence
in the selection and supervision of his driver.
Page 207 of 296
 Meaning, you should go to the details. You
narrate how did you choose him? How did
you supervised him? So, practically the
court requires you to lay down your
evidence. To resort to generalities is not
enough. The law is very strict on motions for
new trial.
The second requirement is the most important. What
is the use of being a victim of FAME and despite in your trial
you still have no chance of winning? To borrow the language
of the SC, it would be pointless to reopen a case if the party
does not have any meritorious cause of action or defense. For
like a mirage it would merely raise false hopes and in the end
avail him nothing. Mirage or illusion. Seeing things which are
not there.
PCIB vs. ORTIZ
150 SCRA 382
(Mentioned already in Rule 13.)
The real affidavit of merits is in no. 2, that
you have a meritorious cause of action or
defense. In effect, the SC said there are 2
affidavits here. An affidavit reciting the
FAME and another affidavit reciting the
meritorious cause of action. The court said:
The motion for new trial grounded on FAME
should thus be accompanied by 2
affidavits, one setting forth the facts and
circumstances alleged to constitute such
FAME and the other an affidavit of merits
setting forth the particular facts claimed to
constitute the movant’s cause of action or
defense. Reason for the first affidavit is quite
obvious. It is to enable the court to
determine that the movant’s claim of FAME
is not a mere conclusion but is indeed borne
out by relevant facts. The reason for the
second affidavit is equally evident. It would
be useless and a waste of time to set aside
a judgment to allow the movant to present
evidence where he has no valid cause of
action or meritorious defense.
Q: Suppose your ground for new trial is newly discovered
evidence.
A: The law says xxx A motion for the cause mentioned in
paragraph (b) shall be supported by affidavits of the
witnesses by whom such evidence is expected to be given,
or by duly authenticated documents which are proposed
to be introduced in evidence. Meaning the affidavit of the
newly discovered witness or a copy of the newly
discovered document. This is new and not found in the old
rules. If you will not attach these, your motion is considered
a pro forma motion and it never tolled the reglementary
period to appeal.
Let us go to the third paragraph.
A motion for reconsideration shall
point out specifically the findings or conclusions
of the judgment or final order which are not
supported by the evidence or which are
contrary to law, making express reference to the
testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such
findings or conclusions.
That is the ground for reconsideration.
Q: What is the most common ground for a motion for
reconsideration?
A: The decision is wrong. It is not supported by the
evidence. Or the conclusion of the court is contrary to law.
And just like in the previous grounds, you have to be
specific. Point out what part of the decision is erroneous.
Which is not supported by law? And what therefore is the
correct law? You argue. Point it out clearly. Otherwise, it is
a pro forma motion. And therefore, it will be denied and
you cannot appeal anymore. The same effect.
The SC said a pro forma motion for reconsideration is
one filed for the sake of form. That is the literal translation. It is
pro forma if it does not specifically point out the findings,
conclusions or judgment which are not supported by evidence
or which are contrary to law.
MARIKINA VALLEY vs. FLOJO
(1995) 251 SCRA 87
A motion for reconsideration which
is not starky bare but which as it were has
some flesh on its bones may nevertheless be
rendered pro forma if the movant fails to
make reference to the testimonial and
documentary evidence on record or the
provisions of law said to be contrary to the
trial court’s conclusions. In other words, the
movant is also required to point out
succinctly why reconsideration is warranted.
It is not enough that a motion for
reconsideration should state what part of
the decision is contrary to law or evidence,
it should also point out why it is sought.
Failure to explain why will render the motion
for reconsideration pro forma.
In the Marikina case, there was a
decision. Then you attack it. This point is
wrong because of this. According to the
trial court, the motion for reconsideration
was pro forma for the movant is touching
points which the court had already touched
in the decision. So, practically a repetition.
But the SC said the trial court is wrong.
When you file a motion for reconsideration
touching on the points in the decision, that
is not pro forma. Precisely you touch on
points which have already been touched.
Meaning, you point out on the very same
points. And simply because you do not
agree with me that does not automatically
mean that your motion is pro forma.
Sec. 3. Action upon motion for new
trial or reconsideration. - The trial court may set
aside the judgment or final order and grant a
new trial, upon such terms as may be just, or
may deny the motion. If the court finds that
excessive damages have been awarded or that
the judgment or final order is contrary to the
evidence or law, it may amend such judgment
or final order accordingly. (3a)
Let us take this with Sec. 6 altogether:
Sec. 6. Effect of granting of motion
for new trial. - If a new trial is granted in
accordance with the provisions of this Rule, the
original judgment or final order shall be
vacated, and the action shall stand for trial de
novo; but the recorded evidence taken upon
the former trial, in so far as the same is material
and competent to establish the issues, shall be
used at the new trial without retaking the same.
(5a)
Page 208 of 296
 Q: A motion for new trial is either granted or denied.
Suppose the court grants a new trial. What will happen?
A: Under Sec. 3, the trial court may set aside the judgment
or final order. Meaning, the judgment which has been
secured through, say FAME, is set aside as if no judgment
has been rendered. After that, under Sec. 6, the original
judgment or final order shall be vacated and the action
shall stand for trial de novo. That is the latin word for new
trial. Literally, if the judgment is set aside, the case will be
tried anew.
Q: Suppose the ground for new trial is newly discovered
evidence and the motion for new trial is granted. Will the
judgment be set aside and everything will start from the
beginning?
A: According to Sec. 6, the recorded evidence taken upon
the former trial in so far as the same is material and
competent to establish the issues shall be used during the
new trial without retaking the same. The court will simply
open the case, allow the new witnesses testify, close the
case again and it will render another decision. The former
witnesses will not be required to testify all over again. So, it
will be reopened only for the purpose of receiving the
testimony of the additional or newly discovered witness.
The previous testimonies will remain as they are. So, there is
no trial de novo because trial de novo means trial all over
again.
Q: How about a motion for reconsideration? Suppose it is
granted, will we have a new trial?
A: Under Sec. 3, the second sentence says xxx If the court
finds that excessive damages have been awarded or that
the judgment or final order is contrary to the evidence or
law, it may amend such judgment or final order
accordingly. So, the court will just change its judgment. If
the judgment is against you, the court will render a new
one in your favor.
Q: This question was asked in the bar: If a motion for new
trial or reconsideration is filed and it is granted, will there be
a trial de novo?
A: It depends on what is the ground. If the ground is that
the previous proceeding is tainted with FAME, then there
will be a trial de novo because everything will be set aside
as if nothing happened and we will start all over again. But
if the ground is newly discovered evidence, we will not start
all over again. We will just open the trial and receive the
newly discovered evidence and the court will decide all
over again. But there will be no retaking of testimony of
witnesses. On the other hand, if a motion for
reconsideration is granted, there will even be no new trial
at all. The court will simply render another decision and
change the first one. So, this is the effect of a motion for
new trial or reconsideration which is granted.
Sec. 4. Resolution of motion. - A
motion for new trial or reconsideration shall be
resolved within thirty (30) days from the time it is
submitted for resolution. (n)
That is self explanatory. In other words, there is a
deadline. Noon, walang deadline. Now the court is given 30
days to resolve the motion.
Sec. 5. Second motion for new trial.
- A motion for new trial shall include all grounds
then available and those not so included shall
be deemed waived. A second motion for new
trial, based on a ground not existing nor
available when the first motion was made, may
be filed within the time herein provided
excluding the time during which the first motion
had been pending.
No party shall be
allowed a second motion for reconsideration of
a judgment or final order. (4a; 4, IRG)
A motion for new trial shall include all grounds then
available and those not so included shall be deemed waived.
There are 2 grounds for a motion for new trial, FAME, and
newly discovered evidence. Suppose I am a party to the case
and I lost. I receive the judgment and I have FAME and newly
discovered evidence as my grounds. Under the rules, when I
file my motion for new trial, I should include the 2 grounds. All
grounds available.
Q: But suppose I will only file a motion for new trial on the
first ground FAME. And when my motion is denied, I will file
a second motion for new trial on the ground of newly
discovered evidence. What will happen?
A: The second motion for new trial will be denied because I
failed to raise it earlier. If it was already existing, I should
have raised it. So, what do you call this type of motion? It
is an omnibus motion as defined in Rule 15, Sec. 8:
Sec. 8. Omnibus motion. - Subject
to the provisions of section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or
proceeding shall include all objections then
available, and all objections not so included
shall be deemed waived. (8a)
That is the definition of an omnibus motion. Give an
example of an omnibus motion. An example is a motion for
new trial, Rule 37, Sec. 5.
Q: Suppose I file a motion for new trial on the ground of
FAME because it was my only ground. And then after it is
denied, I came across a newly discovered evidence. Can
I file a second motion for new trial?
A: The answer is yes because there is a new ground. What
the law prohibits is you file a motion for new trial and you
do not include all the grounds then available. If the
ground surfaced only later, then it is allowed.
Suppose I will violate this rule. I filed the second
motion for new trial when I should have raised the 2 grounds
which I had earlier. Under the rules, the second motion is
automatically a pro forma motion. The filing of the second
motion for new trial never interrupted the running of the period
to appeal. But if it is based on a new ground, the period to
appeal is interrupted because it is not pro forma.
So, if you are asked this question, what are the types
of motion for new trial which are pro forma:
1. Sec. 2 - A motion for new trial which is
not supported by affidavits. It does not
comply with the substance and form in
Secs. 1 and 2 of Rule 37.
2. Sec. 5 - A second motion for new trial
which invokes already available to the
movant when he filed his first motion.
The last paragraph says: No party shall be allowed a
second motion for reconsideration of a judgment or final
order. There is a difference between a motion for
reconsideration and a motion for new trial, di ba.
Q: Is a second motion for new trial allowed?
A: Yes, provided it invokes a ground which is existing for the
first time, not available earlier.
Q: Is a second motion for reconsideration allowed?
A: No, it is prohibited by the rules. So, the party is allowed
to file only one motion for reconsideration. That is taken
from the Interim Rules and Guidelines. Kaya nga may IRG
annotated sa last part ng paragraph.
Page 209 of 296
Distinguish a motion for new trial from a motion for That’s a new provision. There can be no appeal from
reconsideration. the order denying the motion for reconsideration or new trial.
Ganito and sequence: Judgment. Talo ka. File ka ng motion
Motion for new trial Motion for reconsideration for new trial or reconsideration. Denied, so there is an order
Grounds Grounds denying your motion for new trial or reconsideration. Appeal.
(1) FAME which (1) the You will appeal from what? From the judgment not the order
ordinary prudence damages denying the motion for new trial or reconsideration. And the
could not have awarded are filing of the appeal will interrupt the period to appeal which
guarded against and excessive; will continue to run again when you receive the order
(2) newly (2) the provided your motion is not pro forma. So, the order denying
discovered evidence evidence is the motion is not appealable. What is appealable is the
insufficient to justify original judgment.
the decision or final
order; or End of Rule 37.
(3) the
decision or final
order is contrary to
law.
Rule 38
If granted If granted
RELIEF FROM JUDGMENT, ORDERS,
there is no trial de novo, the
there could be a trial de novo OR OTHER PROCEEDINGS
court will simply amend its
or there could be an opening decision.
of the trial to receive newly
discovered evidence
Sec. 1. Petition for relief from
A second motion for new trial A second motion for judgment, order, or other proceedings. - When a
maybe allowed if the ground reconsideration is totally judgment or final order is entered, or any other
alleged was not existing earlier prohibited by the rules. proceeding is thereafter taken against a party in
when the first motion for new There is no such thing as a any court through fraud, accident, mistake, or
trial was filed second motion for excusable negligence, he may file a petition in
reconsideration. such court and in the same case praying that
the judgment, order or proceeding be set aside.
(2a)
Sec. 7. Partial new trial or
reconsideration. - If the grounds for a motion
under this Rule appear to the court to affect the The remedy is known as a petition for relief from
issues as to only a part, or less than all of the judgment or final order. So, there is a judgment or final order
matter in controversy, or only one, or less than which is entered and you want to question the said judgment
all, of the parties to it, the court may order a new on the ground of FAME. This is the third time that we are
trial or grant reconsideration as to such issues if encountering FAME. The first time was in Rule 9, motion to lift
severable without interfering with the judgment the order of default. The second time was in Rule 37, motion
or final order upon the rest. (6a) for new trial. Now, in Rule 38, motion for relief from judgment.
Conclusion: There must be a relationship between all these
So, there is such a thing a partial new trial or three. They have a common denominator which is FAME. We
reconsideration. If there are many issues and the motion for will try to connect.
new trial or reconsideration affects only one issue, so there
could be a motion for new trial or reconsideration only on that If a defendant has been declared in default and
issue. The rest will not be affected. Or, suppose there are there is already an order of default and he wants to restore his
several parties involved but one files a motion for new trial or standing in court, under Rule 9 he will file a motion to lift the
reconsideration as far as he is concerned only, and the court order of default on the ground that he is a victim of FAME.
grants it, so there will be a partial new trial or reconsideration And such motion to lift the order of default must be filed after
sa kanya lang. notice but that there is no judgment by default.

Q: Suppose there is already a judgment by default, can he

Sec. 8. Effect of order for partial
new trial. - When less than all of the issues are
ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the
enforcement of such judgment or final order until
after the new trial. (7a)
If there is a new trial, the court will grant a trial in one
issue and allow the judgment to become final insofar as the
other issues are concerned. Or the court will hold the finality of
everything until it resolves all the issues. It will wait for the new
trial before it renders judgment. So, it is up for the court
whether to hold the enforcement of the rest of the judgment
or not.
Sec. 9. Remedy against order
denying a motion for new trial or
reconsideration. - An order denying a motion for
new trial or reconsideration is not appealable,
the remedy being an appeal from the judgment
or final order. (n)
still file a motion to lift the order of default?
A: No more. So, his next remedy is Rule 37, motion for new
trial on the ground of FAME. Because there is already
judgment here.
Q: Is the judgment here final and executory?
A: Not yet.
Q: Why?
A: Because a motion for new trial is filed within the period
to appeal. So, the period to appeal has not yet expired so
there is a judgment but it is not yet final and executory.
Q: Suppose the defendant failed to file a motion for new
trial within 15 days. Therefore, the judgment by default has
become final and executory. Can he still file a motion for
new trial after 15 days?
A: No more.
Q: Can he appeal from the judgment after 15 days?
A: No more. So final na. Meaning, you cannot appeal,
you cannot file a motion for new trial if you are a victim of
FAME.
Page 210 of 296

Q: Meron pa bang pag-asa?
We will go to the third remedy. The next remedy is to file a
petition for relief from judgment. So, it is one step after the
other.
Q: So, when do you file a petition for relief?
A: When the period to file a motion for new trial has
already lapsed. The judgment has already been entered.
Q: And when is it entered?
A: After it has become final and executory. So, the
aggrieved party will now file a petition for relief from
judgment alleging FAME. That is the connection between
those three remedies.
Q: Where will you file the petition for relief?
A: xxx In such court. Meaning, in the court where you lost.
xxx And in the same case praying the judgment, order or
proceeding be set aside. Meaning, kung natalo ka sa
RTC, you file a petition for relief in the same RTC in the
same case. So para ka na ring nag-file ng motion for new
trial. So, same case, same case number.
Suppose I lost in the MTC and the judgment became
final and I believe I was a victim of FAME. If I will file a petition
for relief I will file it in the same MTC. And this is not the same as
the old law. Under the old rules, if I would like to file a petition
for relief from judgment of either an MTC or RTC, I must file it in
the RTC. The MTC has no power to grant a petition for relief
from its own judgment. Under the new rules, the MTC is now
empowered to entertain petitions for relief from judgment from
its own decision. Kaya nga xxx in such court xxx, even in the
MTC. That is a radical change compared with the old law.
Q: So, what is the difference between a motion for new
trial on the ground of FAME from a petition for relief from
judgment also based on the same ground?
A: The SC said a motion for new trial under Rule 37 on the
ground of FAME is substantially similar to the remedy of
relief from judgment under Rule 38. The only difference
being the remedy is called a motion for new trial if filed
before the judgment or order has become final and
executory and it is called petition for relief if filed after it has
already become final and executory. So, it is the same
dog wearing a different collar.
Kaya nga I met SC decisions before. Within the
period to appeal, the aggrieved party filed a petition for relief.
Ultimately the case reached the SC. Actually, he should have
filed a petition for new trial because the judgment is not yet
final and executory. the correct remedy is not petition for
relief from judgment. However, we will just treat the petition for
relief as a petition for new trial. Meaning, caption lang ang
magkaiba, pareho naman ang ground. In the same manner,
the judgment has become final and executory and the
movant filed a motion for new trial alleging FAME. And the
court said you cannot file a motion for new trial. That is no
longer the remedy. It is called petition for relief but we will
consider your motion for new trial as a petition for relief from
judgment. Anyway, the ground is identical.
But remember, ang ground FAME lang. Walang
newly discovered evidence dito. Newly discovered evidence
is not a ground for petition for relief from judgment. Pag newly
discovered evidence ang ground mo, after Rule 37, tapos ka
na. Your ride ends. Dito sa FAME, meron ka pang pag-asa.
Sec. 2. Petition for relief from denial
of appeal. - When a judgment or final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented
from taking an appeal, he may file a petition in
such court and in the same case praying that
the appeal be given due course. (1a)
Many people believe, including lawyers that when
you avail of Rule 38, you are questioning the judgment. But
actually it is not only a remedy for judgment but it can also be
orders or proceedings. So, there are instances when you can
file a petition for relief not from a judgment but from an order
or proceeding. Example: A judgment was rendered against
me. I have only 15 days to appeal. But I failed to appeal
because when I filed my appeal, it was filed out of time. So,
denied. So, I was prevented from taking an appeal because
of FAME.
Q: What is my remedy?
A: File a petition for relief from the order denying my
appeal. And if the motion is granted, the court will allow
the appeal to continue. So, you are not appealing, you
are not filing a petition for relief from judgment but from
the order disallowing your appeal. Because in most
cases, petitions for relief are based on the judgment. But
that is not true because there could be a petition for relief
from an order denying an appeal. Although that could
be rare. So, if you lose your right to appeal, you can
attempt to restore it by way of petition for relief from the
order denying your appeal.
Sec. 3. Time for filing petition;
contents and verification. - A petition provided
for in either of the preceding sections of this Rule
must be verified, filed within sixty (60) days after
the petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not
more than six (6) months after such judgment or
final order was entered, or such proceeding was
taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial
cause of action or defense, as the case may be.
(3)
What are the requirements under the law as to the petition for
relief?
1. The petition for relief must be verified.
2. It must be accompanied with
affidavits showing the FAME and the
facts constituting the petitioner’s good
and substantial cause of action or
defense, as the case may be.
Does this sound familiar? Yes in the previous rule.
Motion for new trial on the ground of FAME. So, a petition for
relief must also be accompanied by affidavit of merits.
Pareho. And suppose a petition for relief is filed without an
affidavit of merits, what is the effect? The omission is fatal. It
will be denied immediately. The same effect as in a motion for
new trial. So, the 2 remedies are almost identical. Fatal kung
walang affidavit of merits. The recital of the affidavit of merits
ganoon din.
Q: Is there a deadline for the filing of a petition for relief?
A: We know very well that under Rule 9, there is a deadline
for the filing of a motion to lift the order of default. Motion
to lift order of default must be filed before a default
judgment is rendered. There is an order of default but
before judgment. Sa Rule 37, there is already a judgment,
so your next remedy is motion for new trial. When will you
file it? Within the period to appeal which is within 15 days.
So, after 15 days, wala ka ng motion for new trial. Then the
judgment has become final and executory. After 15 days,
wala ng new trial. Remember that.
Page 211 of 296
 Ngayon, meron ka pa bang pag-asa? Yes, petition
for relief. Can I file it any time? No, it must be filed within 60
days after petitioner learns of the judgment, final order, etc.
and not more than six months after such judgment, final order,
etc. was entered/taken. So, meron pa ring deadline. ngayon
pag hindi ka pa naka-file niyan within that period, gago ka na.
Ang tanga mo. You are given remedy by the law three times.
You have a remedy under Rule 9, you squandered it. You
have a remedy under Rule 37, you squandered it again. Now,
meron pang pangatlo, Rule 38, you squandered it again.
Pasensiya ka na. Kumbaga, first trip na-miss mo. Second trip,
na-miss mo rin. Ito ang last trip, Rule 38 pero na-miss mo pa rin.
Maglakad ka na lang.
So, you file it within 60 days from the time you learn of
the judgment and not more than 6 months from the date of its
entry. So there are 2 periods no. Sixty days from the time you
learn of the judgment. Example: The judgment against you
became final in June 1997. You learned about it only last Feb.
15, 1998. You would like to file a petition for relief from
judgment. Today is March 4, 1998. You learned about it on
Feb. 15. From Feb. 15 up to March 4, it is within 60 days. So, it is
filed within 60 days from the time you learned about it. But
from June 1997 to March 4, 1998, is it within or beyond 6
months? It is beyond. Therefore, the petition is denied. The
first period was met but the second period was not.
Puwedeng baliktarin yan. You learned of the
decision last Dec. 20, 1997. That judgment became final on
Dec. 10, 1997. Today, March 4, you will file your petition for
relief. From Dec. 10 to March 4, is it filed within 6 months? Yes.
Is it within 60 days? No, lampas na. Therefore, petition is
denied. You met the second but not the first. You must meet
both periods.
Q: When do you start counting the 6 month period?
A: The law says six months after such judgment or final
order was entered. Hindi finality. But entry. It is the date
when the clerk of court will make an entry in the final
judgment. In most cases, the finality is on this date and the
entry is on another date. But the reckoning point is date of
entry. Suppose it became final more than a year ago but
even up to now, the clerk of court has not made its entry.
The amendment under Sec. 2, Rule 36 has changed that.
Sec. 2. Entry of judgments and final
orders. - If no appeal or motion for new trial or
reconsideration is filed within the time provided
in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be
the date of its entry. xxx
Where the date of entry and the date of finality do
not coincide, Sec. 2 of Rule 36 has resolved that. The date of
finality of the judgment or final order shall be deemed to be
the date of its entry.
The SC said: The 60 day period provided for can
never be extended. The remedy allowed by Rule 38 is merely
an act of grace or benevolence intended to afford a litigant
an opportunity to protect his interest. Considering the nature
of such relief and of the purpose behind it, the periods fixed by
said rules are non-extendible and never interrupted. So, after
that, pasensiya ka na.
Sec. 4. Order to file an answer. - If
the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall
issue an order requiring the adverse parties to
answer the same within fifteen (15) days from the
receipt thereof. The order shall be served in
such manner as the court may direct, together
with copies of the petition and the
accompanying affidavits. (4a)
You will file your petition for relief and the court will
issue an order directing the other party to answer within 15
days. It is like a new complaint but it is not really a complaint.
Sec. 5. Preliminary injunction
pending proceedings. - The court in which the
petition is filed, may grant such preliminary
injunction as may be necessary for the
preservation of the rights of the parties, upon the
filing by the petitioner of a bond in favor of the
adverse party, conditioned that if the petition is
dismissed or the petitioner fails on the trial of the
case upon its merits, he will pay the adverse
party all damages and costs that may be
awarded to him by reason of the issuance of
such injunction or the other proceedings
following the petition; but such injunction shall
not operate to discharge or extinguish any lien
which the adverse party may have acquired
upon the property of the petitioner. (5a)
Let us illustrate this. Mr. Mayor filed a case against Mr.
Lopos. Lopos lost the case and the judgment became final.
Lopos files a petition for relief from judgment under Rule 38. In
the meantime, Mayor filed in court a motion to execute the
judgment because when a judgment becomes final it can be
executed. So, here is Mr. Lopos asking that the judgment be
set aside and here is Mr. Mayor insisting that the judgment be
enforced. Under the rules, since their is a pending petition for
relief filed by Mr. Lopos, he can ask that the enforcement be
stopped while his petition is pending. But he will have to put
up a bond. The bond according to the law is a condition that
if Mr. Lopos’ petition is dismissed or he fails on the trial of the
case upon the merits, that he will pay Mr. Mayor all damages
and costs that may be awarded to Mayor by reason of the
issuance of such injunction or other proceeding.
Sec. 6. Proceedings after answer is
filed. - After the filing of the answer or the
expiration of the period therefor, the court shall
hear the petition and if after such hearing, it finds
that the allegations thereof are not true, the
petition shall be dismissed; but if it finds said
allegations to be true, it shall set aside the
judgment or final order or other proceeding
complained of upon such terms as may be just.
Thereafter the case shall stand as if such
judgment, final order or other proceeding had
never been rendered, issued or taken. The court
shall then proceed to hear and determine the
case as if a timely motion for a new trial or
recon-sideration had been granted by it. (6a)
So, going back to the previous example, the court will conduct
a hearing to determine whether Mr. Lopos’ petition is
meritorious or not. And if the court finds that there is no
meritorious ground or that there is no proper affidavit of merits,
the petition for relief filed by Mr. Lopos will be dismissed. And
that is the end.
Q: But suppose the court is convinced otherwise?
A: It will issue an order granting the petition for relief and
setting the judgment aside as if it never rendered it. then a
new trial will be conducted. It has the same effect as a
motion for new trial. That is the procedure.
In one bar examination, this was asked: When a party
files a petition for relief under Rule 38, how many hearings
should the court conduct? The court will conduct two
hearings:
Page 212 of 296
 1. to determine whether to grant or
deny the petition for relief;
2. if the court determines that the
petition for relief is meritorious, the court will
set aside the judgment and will conduct a
new trial as if no judgment was ever
rendered.
Some people confuse this petition for relief with the
remedy of appeal. Appeal is different. As a matter of fact,
there is no more appeal here. Kaya nga na-final because
there is no appeal. When the petition for relief is granted, will it
have the same effect? No, when you lose the case and you
make an appeal and you win in the appeal, the court will
reverse its decision. From talo, panalo ka na.
That is the effect of an appeal. You are asking that the
decision na baliktarin. But in a petition for relief, I am not
asking the court to change its decision. I am asking the court
to declare the decision as if it never existed. So, you do not
say you won. For all you know, after the new trial, talo ka pa
rin. So you are simply asking that the judgment be set aside as
if it was never rendered. So, if it is set aside, we can start all
over again.
Sec. 7. Procedure where the denial
of an appeal is set aside. - Where the denial of
an appeal is set aside, the lower court shall be
required to give due course to the appeal and
to elevate the record of the appealed case as if
a timely and proper appeal had been made.
(7a)
This is related to Sec. 2. Remember that relief is not
only directed against a judgment but even upon a order or
other proceedings. Going back to Sec. 2, I lost a case, I must
appeal within 15 days but because of FAME, I failed to appeal.
So my appeal is more than 15 days. The court will dismiss my
appeal because it is filed out of time.
Q: So, what will I do?
A: I can file a petition for relief from the order denying my
appeal. Not from the judgment but from the order
denying my appeal.
Q: And suppose I can prove that my petition is meritorious,
what will the court do?
A: Under Sec. 7, the court will set aside the order denying
the appeal and allow the appeal to proceed. So, you are
not questioning the judgment but the order denying your
right appeal. And under Sec. 7, where the denial of the
appeal is set aside, the lower court shall be required to
give due course to the appeal and to elevate the records
to the appealed case as if a timely and proper appeal
had been made.
End of Rule 38.
Rule 38
RELIEF FROM JUDGMENT, ORDERS,
OR OTHER PROCEEDINGS
Sec. 1. Petition for relief from
judgment, order, or other proceedings. - When a
judgment or final order is entered, or any other
proceeding is thereafter taken against a party in
any court through fraud, accident, mistake, or
excusable negligence, he may file a petition in
such court and in the same case praying that
the judgment, order or proceeding be set aside.
(2a)
The remedy is known as a petition for relief from
judgment or final order. So, there is a judgment or final order
which is entered and you want to question the said judgment
on the ground of FAME. This is the third time that we are
encountering FAME. The first time was in Rule 9, motion to lift
the order of default. The second time was in Rule 37, motion
for new trial. Now, in Rule 38, motion for relief from judgment.
Conclusion: There must be a relationship between all these
three. They have a common denominator which is FAME. We
will try to connect.
If a defendant has been declared in default and
there is already an order of default and he wants to restore his
standing in court, under Rule 9 he will file a motion to lift the
order of default on the ground that he is a victim of FAME.
And such motion to lift the order of default must be filed after
notice but that there is no judgment by default.
Q: Suppose there is already a judgment by default, can he
still file a motion to lift the order of default?
A: No more. So, his next remedy is Rule 37, motion for new
trial on the ground of FAME. Because there is already
judgment here.
Q: Is the judgment here final and executory?
A: Not yet.
Q: Why?
A: Because a motion for new trial is filed within the period
to appeal. So, the period to appeal has not yet expired so
there is a judgment but it is not yet final and executory.
Q: Suppose the defendant failed to file a motion for new
trial within 15 days. Therefore, the judgment by default has
become final and executory. Can he still file a motion for
new trial after 15 days?
A: No more.
Q: Can he appeal from the judgment after 15 days?
A: No more. So final na. Meaning, you cannot appeal,
you cannot file a motion for new trial if you are a victim of
FAME.
Q: Meron pa bang pag-asa?
We will go to the third remedy. The next remedy is to file a
petition for relief from judgment. So, it is one step after the
other.
Q: So, when do you file a petition for relief?
A: When the period to file a motion for new trial has
already lapsed. The judgment has already been entered.
Q: And when is it entered?
A: After it has become final and executory. So, the
aggrieved party will now file a petition for relief from
judgment alleging FAME. That is the connection between
those three remedies.
Q: Where will you file the petition for relief?
A: xxx In such court. Meaning, in the court where you lost.
xxx And in the same case praying the judgment, order or
proceeding be set aside. Meaning, kung natalo ka sa
RTC, you file a petition for relief in the same RTC in the
same case. So para ka na ring nag-file ng motion for new
trial. So, same case, same case number.
Suppose I lost in the MTC and the judgment became
final and I believe I was a victim of FAME. If I will file a petition
for relief I will file it in the same MTC. And this is not the same as
the old law. Under the old rules, if I would like to file a petition
for relief from judgment of either an MTC or RTC, I must file it in
the RTC. The MTC has no power to grant a petition for relief
from its own judgment. Under the new rules, the MTC is now
empowered to entertain petitions for relief from judgment from
its own decision. Kaya nga xxx in such court xxx, even in the
MTC. That is a radical change compared with the old law.
Page 213 of 296

Q: So, what is the difference between a motion for new
trial on the ground of FAME from a petition for relief from
judgment also based on the same ground?
A: The SC said a motion for new trial under Rule 37 on the
ground of FAME is substantially similar to the remedy of
relief from judgment under Rule 38. The only difference
being the remedy is called a motion for new trial if filed
before the judgment or order has become final and
executory and it is called petition for relief if filed after it has
already become final and executory. So, it is the same
dog wearing a different collar.
Kaya nga I met SC decisions before. Within the
period to appeal, the aggrieved party filed a petition for relief.
Ultimately the case reached the SC. Actually, he should have
filed a petition for new trial because the judgment is not yet
final and executory. the correct remedy is not petition for
relief from judgment. However, we will just treat the petition for
relief as a petition for new trial. Meaning, caption lang ang
magkaiba, pareho naman ang ground. In the same manner,
the judgment has become final and executory and the
movant filed a motion for new trial alleging FAME. And the
court said you cannot file a motion for new trial. That is no
longer the remedy. It is called petition for relief but we will
consider your motion for new trial as a petition for relief from
judgment. Anyway, the ground is identical.
But remember, ang ground FAME lang. Walang
newly discovered evidence dito. Newly discovered evidence
is not a ground for petition for relief from judgment. Pag newly
discovered evidence ang ground mo, after Rule 37, tapos ka
na. Your ride ends. Dito sa FAME, meron ka pang pag-asa.
Sec. 2. Petition for relief from denial
of appeal. - When a judgment or final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented
from taking an appeal, he may file a petition in
such court and in the same case praying that
the appeal be given due course. (1a)
Many people believe, including lawyers that when
you avail of Rule 38, you are questioning the judgment. But
actually it is not only a remedy for judgment but it can also be
orders or proceedings. So, there are instances when you can
file a petition for relief not from a judgment but from an order
or proceeding. Example: A judgment was rendered against
me. I have only 15 days to appeal. But I failed to appeal
because when I filed my appeal, it was filed out of time. So,
denied. So, I was prevented from taking an appeal because
of FAME.
Q: What is my remedy?
A: File a petition for relief from the order denying my
appeal. And if the motion is granted, the court will allow
the appeal to continue. So, you are not appealing, you
are not filing a petition for relief from judgment but from
the order disallowing your appeal. Because in most
cases, petitions for relief are based on the judgment. But
that is not true because there could be a petition for relief
from an order denying an appeal. Although that could
be rare. So, if you lose your right to appeal, you can
attempt to restore it by way of petition for relief from the
order denying your appeal.
Sec. 3. Time for filing petition;
contents and verification. - A petition provided
for in either of the preceding sections of this Rule
must be verified, filed within sixty (60) days after
the petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not
more than six (6) months after such judgment or
final order was entered, or such proceeding was
taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial
cause of action or defense, as the case may be.
(3)
What are the requirements under the law as to the petition for
relief?
1. The petition for relief must be verified.
2. It must be accompanied with
affidavits showing the FAME and the
facts constituting the petitioner’s good
and substantial cause of action or
defense, as the case may be.
Does this sound familiar? Yes in the previous rule.
Motion for new trial on the ground of FAME. So, a petition for
relief must also be accompanied by affidavit of merits.
Pareho. And suppose a petition for relief is filed without an
affidavit of merits, what is the effect? The omission is fatal. It
will be denied immediately. The same effect as in a motion for
new trial. So, the 2 remedies are almost identical. Fatal kung
walang affidavit of merits. The recital of the affidavit of merits
ganoon din.
Q: Is there a deadline for the filing of a petition for relief?
A: We know very well that under Rule 9, there is a deadline
for the filing of a motion to lift the order of default. Motion
to lift order of default must be filed before a default
judgment is rendered. There is an order of default but
before judgment. Sa Rule 37, there is already a judgment,
so your next remedy is motion for new trial. When will you
file it? Within the period to appeal which is within 15 days.
So, after 15 days, wala ka ng motion for new trial. Then the
judgment has become final and executory. After 15 days,
wala ng new trial. Remember that.
Ngayon, meron ka pa bang pag-asa? Yes, petition
for relief. Can I file it any time? No, it must be filed within 60
days after petitioner learns of the judgment, final order, etc.
and not more than six months after such judgment, final order,
etc. was entered/taken. So, meron pa ring deadline. ngayon
pag hindi ka pa naka-file niyan within that period, gago ka na.
Ang tanga mo. You are given remedy by the law three times.
You have a remedy under Rule 9, you squandered it. You
have a remedy under Rule 37, you squandered it again. Now,
meron pang pangatlo, Rule 38, you squandered it again.
Pasensiya ka na. Kumbaga, first trip na-miss mo. Second trip,
na-miss mo rin. Ito ang last trip, Rule 38 pero na-miss mo pa rin.
Maglakad ka na lang.
So, you file it within 60 days from the time you learn of
the judgment and not more than 6 months from the date of its
entry. So there are 2 periods no. Sixty days from the time you
learn of the judgment. Example: The judgment against you
became final in June 1997. You learned about it only last Feb.
15, 1998. You would like to file a petition for relief from
judgment. Today is March 4, 1998. You learned about it on
Feb. 15. From Feb. 15 up to March 4, it is within 60 days. So, it is
filed within 60 days from the time you learned about it. But
from June 1997 to March 4, 1998, is it within or beyond 6
months? It is beyond. Therefore, the petition is denied. The
first period was met but the second period was not.
Puwedeng baliktarin yan. You learned of the
decision last Dec. 20, 1997. That judgment became final on
Dec. 10, 1997. Today, March 4, you will file your petition for
relief. From Dec. 10 to March 4, is it filed within 6 months? Yes.
Is it within 60 days? No, lampas na. Therefore, petition is
denied. You met the second but not the first. You must meet
both periods.
Page 214 of 296
 Q: When do you start counting the 6 month period?
A: The law says six months after such judgment or final
order was entered. Hindi finality. But entry. It is the date
when the clerk of court will make an entry in the final
judgment. In most cases, the finality is on this date and the
entry is on another date. But the reckoning point is date of
entry. Suppose it became final more than a year ago but
even up to now, the clerk of court has not made its entry.
The amendment under Sec. 2, Rule 36 has changed that.
Sec. 2. Entry of judgments and final
orders. - If no appeal or motion for new trial or
reconsideration is filed within the time provided
in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be
the date of its entry. xxx
Where the date of entry and the date of finality do
not coincide, Sec. 2 of Rule 36 has resolved that. The date of
finality of the judgment or final order shall be deemed to be
the date of its entry.
The SC said: The 60 day period provided for can
never be extended. The remedy allowed by Rule 38 is merely
an act of grace or benevolence intended to afford a litigant
an opportunity to protect his interest. Considering the nature
of such relief and of the purpose behind it, the periods fixed by
said rules are non-extendible and never interrupted. So, after
that, pasensiya ka na.
Sec. 4. Order to file an answer. - If
the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall
issue an order requiring the adverse parties to
answer the same within fifteen (15) days from the
receipt thereof. The order shall be served in
such manner as the court may direct, together
with copies of the petition and the
accompanying affidavits. (4a)
You will file your petition for relief and the court will
issue an order directing the other party to answer within 15
days. It is like a new complaint but it is not really a complaint.
Sec. 5. Preliminary injunction
pending proceedings. - The court in which the
petition is filed, may grant such preliminary
injunction as may be necessary for the
preservation of the rights of the parties, upon the
filing by the petitioner of a bond in favor of the
adverse party, conditioned that if the petition is
dismissed or the petitioner fails on the trial of the
case upon its merits, he will pay the adverse
party all damages and costs that may be
awarded to him by reason of the issuance of
such injunction or the other proceedings
following the petition; but such injunction shall
not operate to discharge or extinguish any lien
which the adverse party may have acquired
upon the property of the petitioner. (5a)
Let us illustrate this. Mr. Mayor filed a case against Mr.
Lopos. Lopos lost the case and the judgment became final.
Lopos files a petition for relief from judgment under Rule 38. In
the meantime, Mayor filed in court a motion to execute the
judgment because when a judgment becomes final it can be
executed. So, here is Mr. Lopos asking that the judgment be
set aside and here is Mr. Mayor insisting that the judgment be
enforced. Under the rules, since their is a pending petition for
relief filed by Mr. Lopos, he can ask that the enforcement be
stopped while his petition is pending. But he will have to put
up a bond. The bond according to the law is a condition that
if Mr. Lopos’ petition is dismissed or he fails on the trial of the
case upon the merits, that he will pay Mr. Mayor all damages
and costs that may be awarded to Mayor by reason of the
issuance of such injunction or other proceeding.
Sec. 6. Proceedings after answer is
filed. - After the filing of the answer or the
expiration of the period therefor, the court shall
hear the petition and if after such hearing, it finds
that the allegations thereof are not true, the
petition shall be dismissed; but if it finds said
allegations to be true, it shall set aside the
judgment or final order or other proceeding
complained of upon such terms as may be just.
Thereafter the case shall stand as if such
judgment, final order or other proceeding had
never been rendered, issued or taken. The court
shall then proceed to hear and determine the
case as if a timely motion for a new trial or
recon-sideration had been granted by it. (6a)
So, going back to the previous example, the court will conduct
a hearing to determine whether Mr. Lopos’ petition is
meritorious or not. And if the court finds that there is no
meritorious ground or that there is no proper affidavit of merits,
the petition for relief filed by Mr. Lopos will be dismissed. And
that is the end.
Q: But suppose the court is convinced otherwise?
A: It will issue an order granting the petition for relief and
setting the judgment aside as if it never rendered it. then a
new trial will be conducted. It has the same effect as a
motion for new trial. That is the procedure.
In one bar examination, this was asked: When a party
files a petition for relief under Rule 38, how many hearings
should the court conduct? The court will conduct two
hearings:
1. to determine whether to grant or
deny the petition for relief;
2. if the court determines that the
petition for relief is meritorious, the court will
set aside the judgment and will conduct a
new trial as if no judgment was ever
rendered.
Some people confuse this petition for relief with the
remedy of appeal. Appeal is different. As a matter of fact,
there is no more appeal here. Kaya nga na-final because
there is no appeal. When the petition for relief is granted, will it
have the same effect? No, when you lose the case and you
make an appeal and you win in the appeal, the court will
reverse its decision. From talo, panalo ka na.
That is the effect of an appeal. You are asking that the
decision na baliktarin. But in a petition for relief, I am not
asking the court to change its decision. I am asking the court
to declare the decision as if it never existed. So, you do not
say you won. For all you know, after the new trial, talo ka pa
rin. So you are simply asking that the judgment be set aside as
if it was never rendered. So, if it is set aside, we can start all
over again.
Sec. 7. Procedure where the denial
of an appeal is set aside. - Where the denial of
an appeal is set aside, the lower court shall be
required to give due course to the appeal and
to elevate the record of the appealed case as if
a timely and proper appeal had been made.
(7a)
This is related to Sec. 2. Remember that relief is not
only directed against a judgment but even upon a order or
Page 215 of 296
other proceedings. Going back to Sec. 2, I lost a case, I must
appeal within 15 days but because of FAME, I failed to appeal.
So my appeal is more than 15 days. The court will dismiss my
appeal because it is filed out of time.
Q: So, what will I do?
A: I can file a petition for relief from the order denying my
appeal. Not from the judgment but from the order
denying my appeal.
Q: And suppose I can prove that my petition is meritorious,
what will the court do?
A: Under Sec. 7, the court will set aside the order denying
the appeal and allow the appeal to proceed. So, you are
not questioning the judgment but the order denying your
right appeal. And under Sec. 7, where the denial of the
appeal is set aside, the lower court shall be required to
give due course to the appeal and to elevate the records
to the appealed case as if a timely and proper appeal
had been made.
End of Rule 38.
Rule 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Rule 39, if you will notice, is one of the longest rules in
the Rules of Court. There are exactly 48 sections. So, it is more
or less equivalent to 4 or 5 rules. Let us go first to the basics.
Execution defined
Q: How do you define the word execution?
A: Execution may be defined briefly as a remedy
provided by law for the enforcement of a judgment.
Q: What is the use of winning the case where you cannot
enforce it?
A: For example, I will file a case against you and there is an
award for damages in the amount of P1M. Do you think
the defendant will come to me and say: Sige, talo man
ako, eto ang P1M mo. That would be a miracle. Chances
are puwersahan pa yan, eh. T`herefore, what is the
procedure to compel the defendant to pay? Execution.
To borrow the language of the SC in some cases: An
execution is the fruit and end of the suit and it is aptly
called the life of the law. You get and award of P1M but
you cannot execute. What will you do with the decision?
I-laminate mo na lang. Dekorasyon. Because you cannot
enforce it. It is useless.
Writ of Execution
Q: Normally, how do you execute?
A: You ask the court which rendered the judgment under
Sec. 1 to issue what is known as an order or a writ of
execution. And as we shall see later, the winner will file a
motion for execution citing only one ground: The judgment
is already final and executory. That is one of the effects of
a finality of a judgment. Execution becomes a matter of
right and it is the ministerial duty of the court to enforce its
judgment. And the court will now execute.
Q: But is it not a fact that when a judgment becomes final
and executory, the court loses jurisdiction over the case?
And the trial court can no longer act on the case? So,
how can it order an execution when it no longer has
jurisdiction and can no longer act on the case?
A: The answer there is when you say the court loses
jurisdiction and cannot act anymore on that case, it means
it has no more power to change its decision. Kaya nga,
new trial is out. Reconsideration is also out. Wala ng
power, eh. But definitely, it has the power to enforce it.
Because it would be absurd that the court has the power
to decide without the power to enforce its decision. There
is something wrong there. The same court has the power.
It can still act but its action is limited to enforcing its
judgment.
That is why, if you will look at it at the start of the
course when we defined jurisdiction, we said it is the power or
authority of the court to act on a case, try the case and to
render judgment. But if you will really analyze that definition,
may kulang. If you will really describe jurisdiction in its
complete aspect, we can say jurisdiction is the power of the
court to act on the case, to try, to decide and to enforce its
judgment. That would be more complete. Because
enforcement is part of the court’s jurisdiction.
Against a party
Let us go further to some basics before we proceed to the
codal provisions.
Q: Against whom will an execution issue?
A: General rule - against a party.
You cannot execute a judgment against A and then execute
against B. Judgments are normally in personam. It is only
binding to the parties. But when you say against B, the word
party means that his successors in interest are covered.
People who derive their rights from him. Because it would be
absurd where you are living in my house and I will file a case
against you for unlawful detainer because I want to eject you
from my apartment. Then talo ka and the judgment became
final. So, I will eject you. But your wife and your children and
even the housemaid would say: Ah, siya lang. Wala man
kami maapil sa decision. My golly. You mean mag-file na
naman ako ng kaso to include all the members of the
household? Dala na yan because all these people are sabit
sa iyo. Otherwise, I have to name everybody pati pusa at aso
dahil baka hindi rin maglayas ang mga yan.
Just like in squatting. Ako yung squatter tapos natalo
ako sa kaso. Then I will transfer my right to another person.
Pag-eject, that person cannot say: Dili man ko apil niana. My
golly, you only derived your rights from the original squatter.
We will see that when we reach the principle of res judicata.
Pagtalo ka, ibenta mo naman sa iba so that I cannot enforce
the judgment in my favor on the ground that it is in personam.
Your successors in interest are covered by the rule on
execution. So, remember that.
Types of Execution
What are the classes of execution? Let us make an outline of
the law itself.
I - As to its nature
1. Compulsory Execution (execution as a
matter of right) - Sec. 1
2. Discretionary Execution (execution
pending appeal) - Sec. 2
II - As to its mode of enforcement
1. Execution by Motion - Sec. 6
2. Execution by Independent Action - Sec. 6
Compulsory Execution
When is the execution of a judgment compulsory?
When is it a matter of right? Let us read the first paragraph of
Sec. 1:
Sec. 1. Execution upon judgments
or final orders. - Execution shall issue as a matter
of right, on motion, upon a judgment or order
that disposes of the action or proceeding upon
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 the expiration of the period to appeal therefrom
if no appeal has been duly perfected. (1a)
Execution is a matter of right, it is compulsory upon a
judgment or order that disposes of the action or proceeding.
Meaning, after the judgment or order is rendered, there is
nothing more for the court to do. Tapos na ang trabaho ko. I
have already disposed it. Therefore, as a general rule, if a
judgment or order has not yet completely disposed of the
case because there is something more to be done in court,
then it cannot be the subject of execution. That is the reason
why conditional judgments and incomplete judgments are
defective judgments. Because you cannot enforce something
which is not yet complete. If a judgment has not yet been
completed, then the court has not yet disposed of the action
because there is something more to be done in the future.
Pero kung tapos na ang trabaho, yan na.
And when do you do that? Upon the expiration of
the period to appeal if no appeal has been duly perfected.
Once the period to appeal has elapsed. So, the period to
appeal has lapsed. No appeal, no motion for reconsideration,
no motion for new trial. Then the judgment now has become
final and executory.
Erroneous judgment
judgment has become final, the winning
party may not to a mere subterfuge deprive
of the fruits of the xxx. Courts must therefore
guard against any scheme calculated to
bring about that result. Constituted as they
are to put an end to controversies, courts
should frown upon any attempt to prolong
them.
Exceptions to the general rule
So, that is the general. But there are exceptions. But
of course the correct manner of learning the law is to nail in
your head the general rule before the exceptions. There is
nothing wrong in remembering the exception. Practically,
there is always an exception to everything but give emphasis
on the general rule. Because some law students have the
habit of trying to remember the exception rather than the
general rule. And that is very dangerous. The time might come
that the exception becomes the general rule. The safest way
is to cement into your brain the general rule.
GENERAL RULE: if the judgment has become final and
executory, the court has no choice but to enforce it upon
motion by the prevailing party. So, as a general rule, the court
cannot refuse to issue a writ of execution upon a final and
executory judgment or quash the execution or order its stay
because such issuance is a ministerial duty of the court.

Q: May a judgment be executed when it is erroneous?

Can you enforce an erroneous judgment? Is it final? However, the SC has laid down some exceptions.
A: Yes. The principle is no matter how erroneous the There are supposed to be many.
judgment may be so long as the court has jurisdiction over
the parties and the subject matter in litigation, the
judgment is enforceable by execution once it becomes WOLFSON vs. DEL ROSARIO
final and executory. Another way of saying it is, for so long 46 PHIL 41
as the court has jurisdiction, the judgment is valid. Even if
the decision is wrong for as long as it is a valid judgment SC said: In the following instances,
and it has become final and executory, the judgment can the court may refuse to execute its
be enforced. judgment:
1. When there had been
Q: Even if it is wrong? a change in the situation
A: Yes, and the error also has become final. Because if it is of the parties which makes
wrong, why did you not appeal? You are bound. You execution inequitable;
cannot complain later that the judgment is wrong. The 2. When it appears that
error can no longer be corrected. Remember that. the controversy has never
been submitted to the
judgment of the court;
Execution is a matter of right 3. When the judgment
Execution is a very difficult process. Sometimes, was novated by
quarrels arise in the execution stage. Some lawyers would go subsequent agreement;
to the extent of blocking the enforcement of the execution. 4. When it appears that
They will question the judgment. Ang iba, valid naman yung the writ of execution has
kanilang objections. But in most cases, the losing party refuses been improvidently issued;
to concede defeat. Unfortunately, some courts do not know 5. When the writ of
what to do. Kahit dilatory, the court would still entertain kaya execution is defective in
the decision cannot be enforced. In other words, the principle substance;
that an execution is a matter of right is sometimes frustrated by 6. When the writ of
dilatory tactics. And even the SC has noted that. The SC has execution is issued against
given the guidelines on this issue. a wrong party; and
7. When the judgment
PELAYO vs. CA debt has been paid or
230 SCRA 606 otherwise satisfied.

The SC said we have time and

again ruled that courts should never allow
themselves to be a party to maneuvers
intended to delay the execution of final
decisions. They must nip in the bud any
dilatory maneuvers calculated to defeat or
frustrate the ends of justice, fair play and
prompt implementation of final and
executory judgments. Litigations must end
and terminate sometime and somewhere.
And it is essential to an effective
administration of justice that once a
Supervening event
We will just concentrate on the important exceptions.
The first one is important. When there had been a change in
the situation of the parties which makes execution inequitable.
It was applied in a case where you filed a case against me,
say, for ejectment. You are ordering me out of the property
and I lost the case. There is a final order that I be ejected. But
while the case was going on, the owner mortgaged the same
property with a bank. He failed to pay the bank so the bank
acquired the mortgaged property. Tapos, ako yung
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defendant, I bought the property from the bank. So, from a
squatter, I am now the owner. But there is a judgment where I
am supposed to get out. Can you enforce that? No more,
because I am now the new owner. There is now a change in
the situation of the parties which makes the execution
inequitable. So, it happened that I became the owner of the
land when the judgment became final and executory. Ang
tawag diyan supervening fact. There has been a change in
the situation of the parties because of a supervening fact.
PHIL VETERANS BANK vs. IAC
178 SCRA 645
If you know the history of PVB, it
has been closed for many years until the CB
allowed its operations to continue again. It
was under the receivership and supervision
of the CB for about 5 years because of
mismanagement. Under the CB Act, once
a bank is under its receivership, the job of
the receiver is to preserve all its assets. No
payments. In the meantime, there was
somebody who filed a case against PVB
and he won. There was a judgment against
PVB and it became final. So, he asked for
execution. Meaning, the sheriff has to go
there and pull out some properties of the
bank. But as we have said, the bank was
under receivership of the CB. So, paano
ngayon yan?
The SC said the rule that once a
decision has become final and executory, it
is the ministerial duty of the court to order its
execution admits of certain exceptions. The
fact that petitioner was placed under
receivership is a supervening event that
renders the judgment notwithstanding its
finality unenforceable by attachment or
execution.
SAMPAGUITA GARMENTS vs. NLRC
233 SCRA 260
Under the labor law, when an
employee is terminated and he files a case
for illegal termination and he wins, the court
will order his reinstatement with backwages.
Here, the employee was dismissed on the
ground of theft. The employer filed the case
in court. In the meantime, the employee
filed a case in the NLRC for illegal dismissal
and reinstatement and he won. The NLRC
ordered the employer to reinstate the
employee. The judgment became final. In
the meantime, the accused was convicted
of theft in the criminal case. It was
appealed to the CA and the CA affirmed.
So, the situation is the employee was found
guilty in the criminal case but earlier he was
found not guilty of theft in the NLRC. So, his
guilt was proven beyond reasonable doubt
and the employer questioned why the
accused should be reinstated na he is
already proven na kawatan. Dapat sa
presuhan siya, hindi sa opisina ko. So, what
will happen?
The SC said an employee’s
conviction for theft which is affirmed by the
RTC and the CA is a supervening cause that
rendered unjust and equitable the NLRC’s
decision mandating the employee’s
reinstatement with backwages.
After judgment has become final
Now, take note that the supervening event
happened after the judgment already became final and
executory. When the event happened while the case is still in
court, that is not supervening. Wala pang decision so it is your
duty to bring out that fact so that the court will be guided in
deciding. Not when the judgment has already become final,
doon mo pa ilabas. You must bring it to the attention of the
court immediately.
VALENZONA vs. CA
226 SCRA 306
The SC said: While the rule is that
stay of execution or final judgment can be
authorized if necessary to accomplish the
ends of justice, for instance where there has
been a change in the situation of the
parties which makes such execution
inequitable, nevertheless, the said rule
cannot be invoked when the supposed
change in the circumstances of the parties
took place while the case was pending for
the reason that there was then no excuse
for the bringing to the attention of the court
the fact or circumstance that affects the
outcome of the case.
Judgment novated by subsequent agreement
Another exception worth watching is the third
exception which is when the judgment was novated by a
subsequent agreement.
Example: Can you enter into a compromise agreement with
your opponent when trial has already started? Of course, that
is even a ground for suspending the proceeding. What if there
is already a decision which is on appeal? Can the parties still
enter into a compromise agreement even when there is
already a judgment? As a matter of fact it is even on appeal?
The SC said yes. Agreement or compromise is encouraged.
The court will simply consider the appeal as withdrawn.
Halimbawa, may decision na, final and executory.
Can the parties still agree to settle amicably? Why not?
Compromise agreement is welcomed anytime. Suppose the
compromise agreement is different from what the court said in
its judgment. Is that possible? Yes, because a party may
waive his right under that judgment. Meaning, the judgment
has already been novated by subsequent agreement of the
parties.
So, there is a judgment that for squatting your
property I am ejected. Then after the judgment, nagkasundo
tayo. Arkilahan ko na lang yung property mo. So, may lease
contract tayo. What happens to the decision for ejectment?
Wala na. Superseded na. It has been novated by another
agreement. So, being novated, it cannot be enforced
anymore. The judgment has been set aside by the agreement
of the parties.
Enjoinment of final judgment
Can the court refuse to execute its own judgment?
General rule, NO. But we learned of the exceptions. The
related question is: Can the court issue an injunction or
restraining order to stop the enforcement of a final and
executory judgment? The general rule is also NO. With more
reason if the injunction is issued by another court. How can
one court stop another court from enforcing its judgment? But
again there are exceptions.
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Exceptions
One exception where the enforcement of a final
judgment can be enjoined or stopped by injunction is found in
Rule 38, Sec. 5:
Sec. 5. Preliminary injunction
pending proceedings. - The court in which the
petition is filed, may grant such preliminary
injunction as may be necessary for the
preservation of the rights of the parties, upon the
filing by the petitioner of a bond in favor of the
adverse party, conditioned that if the petition is
dismissed or the petitioner fails on the trial of the
case upon its merits, he will pay the adverse
party all damages and costs that may be
awarded to him by reason of the issuance of
such injunction or the other proceedings
following the petition; but such injunction shall
not operate to discharge or extinguish any lien
which the adverse party may have acquired
upon the property of the petitioner. (5a)
What kind of judgment is subject for a petition for
relief? The judgment has already become final and
executory. Since it is final already final and executory, the
other party is moving for its execution and it is his matter of
right. Ako naman, I will ask the court to grant me relief from
that judgment. So, what is my remedy? I will ask the court to
issue an injunction to stop the enforcement of the judgment.
So, that is one instance where the court is authorized to enjoin
or restrain the execution of a final and executory judgment.
Let us now go to the rest of the paragraphs of Sec. 1:
If the appeal has been duly
perfected and finally resolved, the execution
may forthwith be applied for in the court of
origin, on motion of the judgment obligee,
submitting therewith certified true copies of the
judgment or judgments or final order or orders
sought to be enforced and of the entry thereof,
with notice to the adverse party.
The appellate court may, on motion
in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ
of execution. (n)
Where to file motion for execution
Q: Going back to the first paragraph, when the judgment
becomes final and executory, where will you file your
motion to execute?
A: In the same court. The RTC branch which has rendered
the judgment.
Q: Suppose you lost in the RTC. So, appeal ka. Sa appeal,
talo ka pa rin. And the judgment of the CA also became
final and executory. Where will I file my motion for
execution? CA or RTC?
A: You still file it in the RTC.
Q: But how will the RTC know that its decision has been
affirmed and that the decision of the CA has already
become final and executory?
A: You get a copy from Manila a certified true copy of the
judgment. Then you go back to Davao City and file your
motion for execution. That would be a faster way.
Because if you will wait for the decision to arrive, it will take
months. But the last paragraph also allows you to file a
motion for execution in the CA and the CA will issue an
order directing the RTC to issue a writ of execution. But
actually, the one who will execute is not the CA but the
RTC.
When execution is compulsory (a.k.a.: execution is a matter of
right)
Therefore, the question is asked: Enumerate the
instances when execution is compulsory.
1. It is compulsory upon the expiration of
the period to appeal if no appeal has
been duly perfected;
2. If there was an appeal which was
finally resolved, execution becomes a
matter of right by filing a motion in the
court of origin by the judgment obligee
submitting therewith certified true copies
of the judgment sought to be enforced
and of the entry thereof with notice to
the parties; or
3. The appellate court may, on motion in
the same case, when the interest of
justice so requires, direct the court of
origin to issue the writ of execution.
So, these are the instances where execution is
compulsory - either the judgment was not appealed or the
judgment was appealed but affirmed by the appellate court.
Although there are other instances, under Sec. 1, these are the
two main instances of compulsory execution.
Discretionary Execution / Execution pending appeal
With that, we will now go to the second type which is
discretionary execution, more popularly known as execution
pending appeal. Discretionary, meaning, the court may or
may not order the execution. Let us read (a).
Sec. 2. Discretionary execution. -
a) Execution of a judgment or
final order pending appeal. - On motion of the
prevailing party with notice to the adverse party
filed in the trial court while it has jurisdiction over
the case and is in possession of either the
original record or the record on appeal, as the
case may be, at the time of the filing of such
motion, said court may, in its discretion, order
execution of a judgment or final order even
before the expiration of the period to appeal.
After the trial court has lost
jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution
may only issue upon good reasons to be stated
in a special order after due hearing.
Direct example. I file a case against you. You lost. I receive
the decision today. Panalo ako.
Q: Can I file a motion to execute under Sec. 1?
A: No, because the judgment is not yet final. I have to wait
for 15 days. And if you will not appeal, that is the time.
Because you can appeal, eh. The judgment is not final
until the 15-day period has lapsed.
Q: But I am interested to have the judgment enforced
even before it becomes final. So, what is my remedy?
A: Within the period to appeal, the prevailing party can file
a motion for execution pending appeal. Meaning, let the
judgment be enforced even if you will appeal.
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 It has been popularly termed as execution pending
appeal. But actually that term is not so accurate. Because we
will not know whether the other party will appeal or not. The
better term to describe it is execution within the period to
appeal. Meaning, within 15 days. Execution pending appeal.
Eh, hindi mo pa nga alam kung mag-appeal.
Q: Now, is this the general rule or is this the exception?
A: It is the exception. The general rule is Sec. 1. Normally,
the court will not allow a judgment to be enforced before
it becomes final and executory because for all you know,
the judgment may be appealed. Baka madiskaril pa yan
sa itaas. For all you know, the judgment of the RTC will be
reversed. So, from winning, you are losing. So, why will you
enforce a judgment na it is not yet final? That is the
general rule. But sometimes, the court may allow Sec. 2 to
be applied. Kaya nga discretionary. But the important
requirement is the last paragraph of (a) which says:
Discretionary execution may only issue upon good reasons
to be stated in a special order after due hearing.
Requisites
So, what are the requisites for a motion to execute
pending appeal?
1. There must be a motion filed by the
prevailing party.
2. Notice of the motion must be given to
the adverse party.
3. Good reasons for execution pending
appeal must be stated in a special order
after due hearing.
Good reasons
If the court allows execution of this type of judgment
which is not yet final without
any good reason, the SC said the order of execution is without
effect. It is null and void.
There must be a good reason.
Suppose the judgment has become final and
executory under Sec. 1 and I am the winner. Do I have to cite
good reason? No need. The only reason is that the judgment
became final and executory. But in Sec. 2 since you cannot
say that the judgment has become final and executory, then
you better tell me why the judgment should be executed
pending appeal. The SC said:
The requirement of good or
special reasons is one of importance which
should not be overlooked. If the judgment
is executed and on appeal the same is
reversed although there are provisions for
restitution. Often times, damages may arise
which cannot be fully compensated.
Accordingly, execution should be granted
only when these considerations are clearly
outweighed by superior circumstances
demanding urgency and the rules require a
statement of those circumstances as a
security for their existence. There must be
good reasons to be stated in a special
order.
Q: When is a reason good and when is it not good? That is a
very broad criterion.
A: Our only guide there would be SC decisions. In one
case, the SC said when there is danger of the judgment
becoming ineffectual as the judgment obligor, a foreign
corporation is withdrawing its business in the country. That
would be a good reason.
(SCOTTISH UNION vs. MACADAEG)
In another case, an old woman filed a case to
recover her property from a usurper who had been occupying
her property for years. And after years of litigation, she won.
But the losing property intended to appeal. So, the old
woman filed a motion for execution pending appeal by
alleging that she is already very old and that she had been
deprived of her property for years. And she is now over 70. By
that time, if she still has to wait for the decision of the appeal,
she might not be around anymore to enjoy the use her
property. The SC considered old age a very good reason.
Otherwise, the judgment would become ineffectual if the
prevailing party would have already died considering her age.
Another case: When the judgment to be executed is
for the necessary support of an heir or a child. So, the one
seeking support will file a motion to execute judgment
immediately. Otherwise, he will die of starvation. And that is a
very good reason considering the urgency of the support.
Where appeal is merely dilatory
Suppose you win the case and obviously the
defending party has no defense. You win but you expect the
losing party to appeal. So, obviously, the purpose of the other
party is to delay the enforcement of the judgment. There is no
way that the judgment could possibly be reversed, therefore, I
will move to execute pending appeal on the ground that any
probable appeal is dilatory. There is no chance for the
defendant to win in the appeal. My question is: Is that a good
ground to execute pending appeal? This is where decided
cases seemed to be uncertain.
PRISBETERO vs. RODAS
JAVELLANA vs. QUERUBIN
The SC said that is a good ground
where the appeal is taken for the purpose
of delay.
However, there are also cases where the SC said the
contrary:
AQUINO vs. SANTIAGO
161 SCRA 570
The SC said that when you file a
motion for execution pending appeal
before, say, the RTC and the RTC would
grant the execution pending appeal
because there is no way for the defendant
to win, that is tantamount to the RTC acting
already as a CA. Meaning, the RTC is
already biased. So, who are you to say that
my appeal is dilatory? Only the CA can say
that.
So, in some cases, the SC said it was not a good
ground because the RTC is not competent and qualified to
say that. On the other hand, the SC considered it again as a
good ground for execution pending appeal in the case of:
HOME INSURANCE CO. vs. CA
184 SCRA 318
The SC said a good and sufficient
reason upon which to issue an execution on
a judgment pending appeal is when the
appeal is taken for the purpose of delay.
While it is true that it is not for the trial court
to say that the appeal may not prosper or
that it is frivolous, there are circumstances
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 which may serve as cogent basis for arriving
at such a conclusion. Another vital factor
which led the trial court the execution
pending appeal was the pendency of the
case for more than 17 years so that the
purchasing power of the peso had
undeniably declined. Petitioner should be
given relief before it is too late.
PBCOM vs. CA
297 S 364
Held: It is significant to stress that private
respondent Falcon is a juridical entity and not
a natural person. Even assuming that it was
indeed in financial distress and on the verge
of facing civil or even criminal suits, the
immediate execution of a judgment in its
favor pending appeal cannot be justified as
Falcon situation may not be likened to a
case of a natural person who may be ill or
may be of advanced age.
Even the danger of extinction of the
corporation will not per se justify a
discretionary execution unless there are
showing of other good reasons, such as for
instance, impending insolvency of the
adverse party or the appeal being patently
dilatory. Hence, it is not within competence
of the trial court, in resolving the motion for
execution pending appeal, to rule that the
appeal is patently dilatory and rely on the
same as its basis for finding good reason to
grant the motion. Only an appellate court
can appreciate dilatory intent of an appeal
as an additional good reason in upholding
an order for execution pending appeal
which may have been issued by the trial
court for other good reasons, or in cases
where the motion for execution pending
appeal is filed with the appellate court in
accordance with Section 2, Rule 39 of the
1997 Rules of Court.
Where plaintiff files a bond
We will go to one last point.
HACIENDA NAVARRA vs. LABRADOR
65 PHIL 536
A filed a case against B and A
won. A filed a motion to execute pending
appeal. The plaintiff said: I am going to put
up a bond to answer for any damages that
you might suffer in the event that you might
win. So, he was willing to put up a bond in
favor of the losing party. Is that a good
ground or reason? The SC simply implied
that is a good reason where a winning party
files a bond.
However, it would seem that this case was
misunderstood because in its later cases, the SC said it never
meant that putting up a bond is a good reason to execute
judgment pending appeal. Among these cases was the case
of:
ROXAS vs. CA
157 SCRA 370
The SC said that is not what we
meant. Putting up a bond is not in itself a
good reason.
PNB vs. PUNO
170 SCRA 229
The SC said it is not a good
reason. The mere filing of a bond
would not entitle the prevailing
party for execution pending
appeal. Whatever doubts may
have been generated by the
earlier decision of HACIENDA
NAVARRA vs. LABRADOR was
settled in ROXAS vs. CA. To
consider the mere posting of a
bond a good reason would make
immediate execution of a
judgment pending appeal
routinary the rule rather the
exception. Judgments would be
executed immediately as a matter
of course once rendered if all the
prevailing party needed to do was
to post a bond. This is a situation
neither contemplated nor
intended by law.
So, with that the SC has made it clear that putting up a bond is
not a good reason. It could be an additional reason but it
cannot be the only reason. That position was later reiterated
in the case of PHOTOQUICK INC. vs. LA PENA JR. (195 SCRA
66).
Q: Now, where do you file your motion to execute? Will
you file it in the RTC or before the CA where the case is
appealed?
A: The present rule makes a categorical statement of
where the motion should be filed although this has been
taken from decided cases. Sec. 2, par. (a) says that you
file it in the court, say, the RTC while the trial court has
jurisdiction over the case and is still in possession of the
record of the case.
Q: So, when does a trial court still retain jurisdiction over the
case?
A: Before the lapse of 15 days.
So, before the lapse of 15 days, you file your motion to
execute before the RTC.
The second paragraph of (a):
After the trial court has lost
jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
So, if the court has already lost jurisdiction over the
case, the appellate court shall have jurisdiction over it. So, you
file your motion for execution pending appeal in the CA.
b) Execution of several, separate or
partial judgments. - A several, separate or
partial judgment may be executed under the
same terms and conditions as execution of a
judgment or final order pending appeal. (2a)
We already discussed in the previous rules several,
separate or partial judgments arising from the same case.
Q: Suppose I will render judgment on one. Mamaya na
yung iba. Are these judgments subject to execution? Or
must you wait for all other judgments to come out before
you can execute?
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 A: The answer there is found in Rule 36, Sec. 5:
Sec. 5. Separate judgments. - defendant who lost the case who is required to put up a bond
When more than one claim for relief is presented
in an action, the court, at any stage, upon 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 the claim, may render a
separate judgment disposing of such claim. The
judgment shall terminate the action with respect
to the claim so disposed of and the action shall
proceed as to the remaining claims. In case a
separate judgment is rendered, the court by
order may stay its enforcement until the
rendition of a subsequent judgment or
judgments and may prescribe such conditions
as may be necessary to secure the benefit
thereof to the party in whose favor the judgment
is rendered. (5a)
In other words, if there are two judgments, the court
may issue an order to stop a first judgment until the second
judgment is rendered. The court may stay. Another provision
which says that is Rule 37, Sec. 8:
Sec. 8. Effect of order for partial
new trial. - When less than all of the issues are
ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the
enforcement of such judgment or final order until
after the new trial. (7a)
Q: Suppose you want the judgment to be enforced when it
should have been stayed. How do you do it?
A: That is Rule 39, Sec. 2(b): A several, separate or partial
judgment may be executed under the same terms and
conditions as execution of a judgment or final order
pending appeal
So, you may ask that a separate judgment be enforced if
there is a good reason. So, the same.
Supersedeas bond
Sec. 3. Stay of discretionary
execution. - Discretionary execution issued
under the preceding section may be stayed
upon approval by the proper court of a sufficient
supersedeas bond filed by the party against
whom it is directed, conditioned upon the
performance of the judgment or order allowed
to be executed in case it shall be finally
sustained in whole or in part. The bond thus
given may be proceeded against on motion
with notice to the surety. (3a)
So, this is the situation. You file a case against me
and then I lost. Immediately, you filed a motion for execution
pending appeal citing good reasons. The court directed
enforcement of the judgment pending appeal. Now, what is
my remedy? Because I want to appeal. I do not want it to be
executed pending appeal.
Q: Can I have it stopped?
A: Yes, under Sec. 3. I have to file a motion to stay
(meaning, to stop) the execution pending appeal but I
have to offer a bond. And the bond will be liable to you in
the event that I will not win in the appeal (condition). And
that bond is called a supersedeas bond. So, it is the
defendant who will offer a bond to stop the execution
pending appeal.
According to HACIENDA NAVARRA, it is the
successful party who puts up a bond to execute pending
appeal. That is not so because under the law, it is the
to stay or stop the execution pending appeal. So, we stick to
the general rule. A judgment will be executed once it has
become final and executory. And generally, when a losing
party offers to put up a supersedeas bond to stop execution
pending appeal, the court has to stop the execution. That is
the requirement.
Although there are some rare cases where the SC
said even if the losing party puts up a bond to stay execution,
the execution pending appeal would still continue. Why?
When there are higher and good reasons to execute even
when you put up a bond. Superior reasons should be cited
and an example of this is a judgment for support because it
can never wait.
Sec. 4. Judgments not stayed by
appeal. - Judgments in action 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. (4a)
Injunction, receivership, accounting & support
These are types of judgments which are immediately
executory. Meaning, even on appeal, the judgment can be
enforced because of its nature. Not only support. Such other
judgments as are now or may hereafter be declared to be
immediately executory. Judgments in actions for injunction,
receivership or accounting.
A judge was confronted with this case. A filed a case
against B for injunction to stop B from trespassing on his
property. A got the judgment. But B decided to appeal. So,
while the case was on appeal, is B allowed to pass?
According to A, hindi. Meron ng decision, eh. Sabi ni B
naman: You are correct but the case is still on appeal.
Therefore, the judgment is not yet final. Meanwhile, I can still
pass over your property. Who is now correct between the
two? And the judge here could not seem to find the legal
provision to this query. So, I told him: Why don’t you look at
Rule 39, Sec. 4? The law says judgments in actions for
injunction. Just like this case. They shall be enforceable after
their rendition and shall not be stayed by an appeal taken
therefrom unless otherwise ordered by the trial court.
Q: Is a judgment in an action for injunction enforceable
even if there is still an appeal?
A: Yes. We have to honor the decision already even if it is
not yet executory. So, in effect, it would seem that as a
rule, judgments here are compulsory also. Even if you
appeal, it is still compulsory. Compulsory as a matter of
right.
So, in effect, cite the instances under the law when
execution is compulsory or a matter or right. There are three,
the first two under Sec. 1 and one under Sec. 4:
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 1. Upon the expiration of the period
to appeal if no appeal has been duly
perfected.
2. If an appeal has been duly
perfected and finally resolved
3. Judgments in actions for
injunctions, receivership, accounting
and support and such other judgments
as are now or may hereafter be
declared immediately executory.
Meron pa yang pang-apat but I will not mention that
for the meantime because it is found in Rule 70.
Also, cases decided by MTC pursuant to the
summary rules of procedure such as unlawful detainer &
forcible entry are immediately executory.
Sec. 5. Effect of reversal of
executed judgment. - Where the executed
judgment is reversed totally or partially, or
annulled, on appeal or otherwise, the trial court
may, on motion, issue such orders of restitution
or reparation of damages as equity and justice
may warrant under the circumstances. (5a)
Sec. 5 is the reason I mentioned earlier why generally
a judgment which is not yet final and executory should not be
enforced or executed. Of course, merong discretionary
execution. But again, we follow the general rule. Reason?
Because the decision might be reversed on appeal. There is a
possibility. And suppose that happens, what shall we do? The
trial court may issue such orders of restitution or reparation of
damages as equity and justice may warrant under the
circumstances. There will be orders of mutual restitution or
reparation. The effect here is similar to Civil Law. When a
contract is ordered rescinded by a court, there is mutual
restitution. Magsaulian tayo.
Under the present law, it says where the executed
judgment is reversed, or as added by the 1997 rules, annulled
on appeal or otherwise.
Q: Give an example of Sec. 5 where a judgment was
executed but it was annulled on appeal or otherwise.
A: The best example is where there is a petition for relief
from judgment. Because in a petition for relief from
judgment, the judgment is already final. Suppose pending
the petition for relief, na-execute ang decision. Then later
on the petition for relief was granted, paano ngayon yan?
Saulian tayo. It has the same effect as the execution
pending appeal. Because the judgment in your favor has
been annulled or set aside by virtue of the petition for relief
from judgment.
Execution by motion / Execution by independent action
Sec. 6 is again an important provision. We said there
is another classification of execution as to how a judgment is
executed. Mode of enforcement. Execution by motion or
execution by independent action.
Sec. 6. Execution by motion or by
independent action. - A final and executory
judgment or order may be executed on motion
within five (5) years from the date of its entry.
After the lapse of such time, and before it is
barred by the statute of limitations, a judgment
may be enforced by action. The revived
judgment may also be enforced by motion
within five (5) years from the date of its entry and
thereafter by action before it is barred by the
statute of limitations. (6a)
Q: How do you execute a judgment? You won. The
judgment is already final.
A: The procedure is you file a motion for execution before
the same court which decided the case and the court will
issue an order of execution. It will be followed by a formal
writ of execution which will be handed to the sheriff who
will enforce the judgment.
Q: Within what period can I file the motion?
A: The law says only within a period of 5 years from the
date of its entry. Take note, the law does not say from the
date of finality. It is from the date of entry. But we have no
more problem there. Under Rule 36, Sec. 2, the date of
finality is already considered the date of entry. They now
coincide. So, it can be filed within 5 years from the date of
entry or date of finality.
Sometimes, it will really take you time to file a motion.
The judgment has become final and then you know very well
that the defendant is as poor as a rat. Walang bahay, walang
lupa, walang kotse. No nothing. So, pasensiya na lang.
However, after 2 or 3 years, nanalo sa lotto. So, file ka na ng
motion for execution. So, a defendant’s fortune can change
for the next 5 years. That is the reason why you are given 5
years.
Dormant judgment
Q: Suppose he becomes a millionaire on the 6th or 7th
year. Can you file a motion to execute?
A: NO. After the lapse of 5 years, your judgment becomes
a dormant judgment. Natulog na siya.
Q: So, how do we define a dormant judgment?
A: A dormant judgment is a judgment which was not
executed by a motion within 5 years from the date of its
entry.
Q: So, how do you enforce now your judgment after 5
years?
A: A judgment may be enforced by independent action.
Meaning, you file another case against him for revival of
judgment because the first judgment has already become
dormant.
Q: Does that mean I have to file an entirely new case?
There will be summons, pre-trial, answer?
A: Yes.
Q: Then, practically this would be a repetition of what
happened 5 years ago?
A: No, because your cause of action is the enforcement of
the dormant judgment.
Example: Suppose 7 years ago, the creditor files a
case against a debtor for non-payment of a debt. The
promissory note is the actionable document. Judgment. But
the creditor failed to enforce it within 5 years. Now, on the 7th
year, you can no longer file a motion. You can file another
case but no longer an action to collect a sum of money but
an action to revive a judgment. So, my basis for my second
action is no longer the promissory note but the judgment
which became dormant. That is the actionable document.
So, it is really a different kind of cause of action.
Q: Can the defendant file an answer invoking defenses?
A: He can except that the defendant cannot question the
correctness of the first judgment. Meaning, if there are
defenses which the defendant can interpose on the
counterclaim, puwede, but he cannot invoke a defense
questioning the validity of the original judgment.
Like for example, in the first case filed against you, your
defense was the promissory note has been paid. Then you
lost. The court said there was no payment. Final. After 5
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years, I will file an action to revive dormant judgment.
Summons again. And you filed your answer. Then you say:
Bayad naman yan. Practically, you are reviving the issue. If
you have other defenses, invoke it now but you cannot invoke
a defense which had already been disposed of in the first
judgment. Because this is a different cause of action. So, that
is what a dormant judgment is all about.
Exception
Now, there is one type of judgment where you can
enforce it by motion even beyond 5 years. This is an
exception. Normally, you cannot file a motion to execute
when the judgment became final more than 5 years ago. But
there is one. You can enforce it by motion. Ano yan?
Judgment for support. Let us say the judgment was 7 years
ago. Every month, he is supposed to give you support. But he
did not give you last month’s support. You can file a motion to
collect last month’s installment although the judgment was 7
years ago. Because a judgment for support can never
become dormant. You can always file a motion to execute
an unpaid support for a particular month even beyond 5
years. What is barred are the previous installments. Suppose
he did not pay you an installment in 1992. And you never
bothered to collect that. Hindi na yan puwede. It is already a
past installment. Pero kung monthly installments, you can
always file a motion to execute even when the judgment was
more than 5 years. That is the exception.
Art. 1144 Civil Code
So, I cannot file a motion for execution beyond 5
years. What I can file is another civil action to revive the
dormant judgment.
Q: When do I file that action? Is there also a deadline to
file the action to revive the judgment? What does the law
say?
A: After the lapse of such time and before it is barred by
the statute of limitations, a judgment may be enforced by
action. Meaning, after 5 years, the judgment may be
enforced by action before it is barred by the statute of
limitations.
Q: And what is the statute of limitations to enforce a
judgment?
A: The answer is found in the Civil Code, particularly Art.
1144:
Art. 1144. The following
actions must be brought within ten years from
the time the right of action accrues:
xxx
3. Upon a judgment. (n)
Meaning, you have 10 years to enforce your right upon a
judgment. Let us outline the provision: Date of Entry or final
judgment, say, 1990. Five years, 1995.
Q: How do you enforce?
A: By motion. After the lapse (after 5 years) but before it is
barred by the statute of limitations, it is by action. So, ilan
yan? Another five years. So, total is 10 years under Art.
1144 of the Civil Code. So, total period to enforce a
judgment is 10 years First 5 years by motion. Second 5
years by independent action.
So, did you understand that provision? Now, let us read the
last sentence which is a new one. It did not appear under the
old law. The revived judgment may also be enforced by
motion within five (5) years from the date of its entry and
thereafter by action before it is barred by the statute of
limitations.
Example: First judgment became final in 1990. You
can enforce that until 2000. Suppose in 2000 you were able to
secure a second judgment reviving that. How many years do I
have to enforce the second judgment? Under the new rules,
there is another ten years. The first judgment by motion. The
next 5 years is by independent action. Yan. Meaning, you
derive your rights under the second judgment. Wala ka ng
right under the first. Patay na yun. That has already
prescribed. So, to illustrate:
Bondoc ruling
l
Now, what is the history of this provision? Prior to the
1997 Rules, we were only guided by decided cases. So, it is
not really new. The SC was asked: If there was a second
judgment within 10 years reviving the first judgment, how many
years do I have to enforce the second judgment? Do you
have another 10 years? Meaning, that judgment will prescribe
again kay wala pang pera yung tao. So, 10 plus 10 equals 20
na. File ka na naman ng action to revive judgment. So
another 10 years. Is that what the law means? So, practically,
para hindi mag-prescribe file ka lang ng file ng another
judgment?
The first time that question reached the SC was the
case of:
PNB vs. BONDOC
140 SCRA 770
The SC said that the 10-year
prescriptive period provided for under Art.
1144 of the Civil Code commences also to
run from the finality of the revived judgment.
So, 10, another 10.
However, there was a second case on that issue also
involving:
PNB vs. VELOSO
32 SCRA 266
The SC changed its mind. The 10
year prescriptive period under the Civil
Code within which to enforce judgment
commences to run only from the finality of
the original judgment.
Meaning, you have 5 years to enforce it. After that
wala na. So, nagkaroon ng conflict. The third time that issue
reached the SC was in the case of:
LUZON SURETY CO. vs. IAC
151 SCRA 652
The SC noted the two previous
cases and the SC upheld VELOSO. The
ruling in BONDOC has been abandoned.
So, there is no such thing as another 10
years.
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 But here comes the new rule. The revived judgment
may also be enforced by motion within 5 years of the date of
its entry and thereafter by action. That is going back to
BONDOC. In effect, the ruling in BONDOC is resurrected. So,
that is the history of that provision. The purpose is protection
from whimsy and unscrupulous debtors evading attachments.
Death of a party
Sec. 7. Execution in case of death
of party. - In case of the death of a party,
execution may issue or be enforced in the
following manner:
(a) In case of the death of the
judgment obligee, upon the application of his
executor or administrator, or successor in
interest;
(b) In case of the death of the
judgment obligor, against his executor or
administrator or successor in interest, if the
judgment be for the recovery of real or personal
property, or the enforcement of a lien thereon;
(c) In case of the death of the
judgment obligor, after execution is actually
levied upon any of his property, the same may
be sold for the satisfaction of the judgment
obligation, and the officer making the sale shall
account to the corresponding executor or
administrator for any surplus in his hands. (7a)
Q: This is related to our discussion in Rule 3, Sec. 20. What is
the effect of a death of a party on the execution of a
judgment?
A: If it is the obligee (the creditor) will die after he wins the
case, his executor or administrator, his legal representative
or his heirs and successors in interest can enforce the
judgment.
If is the defendant (obligor) who dies and there is final
judgment which is recovery of real or personal property,
the judgment is executed against the administrator or
executor. Because this is an action which survives. An
action for recovery of real or personal property.
Under par. (c), it is the obligor in a money claim.
Kaya nga this is related to Rule 3, Sec. 20. Kaya lang, the
timing of the death is different. Let us connect these with Rule
3, Sec. 20:
Sec. 20. Action on
contractual money claims. - When the action is
for recovery of money arising from contract,
express or implied, and the defendant dies
before entry of final judgment in the court in
which the action was pending at the time of
such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the
manner especially provided in these Rules for
prosecuting claims against the estate of a
deceased person. (21a)
I think I already outlined this in Rule 3. We are talking
here of contractual money claim like collection of a debt. A
filed a case against B to collect an unpaid loan.
Q: What will happen to the case if B dies?
A: It will depend on what stage of the case he dies. If he
died before final judgment could be rendered by the
court, meaning, before entry of final judgment, there will
be a substitution of party and the case will continue until
entry of final judgment.
Suppose, there is already entry of final judgment and
he dies, it will depend whether there was already a levy on
execution. Meaning, there was already entry of final
judgment but before the property is levied. This should not
apply because the law says after execution is levied. But my
question is not levy. The procedure there is found in the
Special Proceedings. The judgment shall be enforced in the
manner provided for by the Rules on claims against the estate
of the deceased under Rule 86. And that is also mentioned in
Rule 3, Sec. 20. It shall be enforced in the manner provided for
against the estate.
Q: Suppose the defendant dies when there is already a
levy. What will happen?
A: The auction sale will proceed as scheduled in
connection with Sec. 7, par. (c). Because the law says the
same may be sold for the satisfaction of the judgment
obligation. Meaning, the auction sale or the execution
sale shall proceed. No more substitution here.
So in that question, the effect of the death of a party
on a pending civil case is a question with so many angles.
Anong klaseng kaso? Is it one which is personal in nature or
not? If it is not, is it one which survives or one which does not?
If it does not survive, who died? The plaintiff or the defendant?
If it is the defendant, did he die before entry of final judgment?
Did he die after entry of final judgment but before there could
be levy or execution? Or did he die after levy or execution?
This last question is answered by Sec. 7 (c).
(c) In case of the death of the
judgment obligor, after execution is actually
levied upon any of his property, the same may
be sold for the satisfaction of the judgment
obligation, and the officer making the sale shall
account to the corresponding executor or
administrator for any surplus in his hands. (7a)
Writ of execution
Sec. 8. Issuance, form and
contents of a writ of execution. - The writ of
execution shall:
(1) issue in the name of the
Republic of the Philippines from the court which
granted the motion;
(2) state the name of the court,
the case number and title, the dispositive part of
the subject judgment or order; and (3) require
the sheriff or other proper officer to whom it is
directed to enforce the writ according to its
terms, in the manner hereinafter provided:
(a) If the execution be
against the property of the judgment obligor, to
satisfy the judgment, with interest, out of the real
or personal property of such judgment obligor;
(b) If it be against real or
personal property in the hands of personal
representatives, heirs, devisees, legatees,
tenants, or trustees of the judgment obligor, to
satisfy the judgment, with interest, out of such
property;
(c) If it be for the sale of
real or personal property, to sell such property,
describing it, and apply the proceeds in
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 conformity with the judgment, the material parts
of which shall be recited in the writ of execution.
(d) If it be for the delivery of
the possession of real or personal property, to
deliver the possession of the same, describing it,
to the party entitled thereto, and to satisfy any
costs, damages, rents, or profits covered by the
judgment out of the personal property of the
person against whom it was rendered, and if
sufficient personal property cannot be found,
then out of the real property; and
(e) In all cases, the writ of
execution shall specifically state the amount of
the interest, costs, damages, rents, or profits due
as of the date of the issuance of the writ, aside
from the principal obligation under the
judgment. For this purpose, the motion for
execution shall specify the amounts of the
foregoing reliefs sought by the movant. (8a)
Writ of execution is actually the document which is
issued by the court addressed to the sheriff. First there is a
motion. Then the court will say: Alright, Order. Let a writ of
execution issue. Then, the writ na. The writ is actually the
instruction to the sheriff on what he should do. The instruction
is there. It would depend on what kind of decision. Is it an
action for sum of money or is it for recovery of real property?
Mimeographed yan. It is addressed to the sheriff. That is a writ
of execution. These are standard forms in court.
What is new here which is not found in the old rules is
par. (e). In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages, rents, or
profits due as of the date of the issuance of the writ, aside from
the principal obligation under the judgment. For this purpose,
the motion for execution shall specify the amounts of the
foregoing reliefs sought by the movant. Normally, ang
decision ng court, ang principal nandoon na.
Example: Principal P1M with 10% interest. The decision does
not really say ang principal ganito. The interest is still subject to
computation. And normally, lawyers file the motion for
execution without really stating how much. Practically you are
asking the sheriff to compute and that sometimes causes
problem if the sheriff himself does not know how to compute.
Mag-away pa mo pila gyud ang interest.
The new rules now require to specify everything. The principal,
the interest, the cost, the damages. Nandoon na yan. Kaya
nga the last sentence says For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs
sought by the movant. This is because execution is barred or
delayed because of the quarrel. Paragragph (e) intends to
cure that. But I doubt very much if lawyers and judges know
about this provision.
Execution of money judgment
Sec. 9 is very common. How do you execute
judgment for money? I think majority of judgments involve
pera. Contractual debts or damages. Example, the defendant
is ordered to pay defendant P1M with interest. How does the
sheriff enforce that? Compared to the old law, Sec. 9 now is
more detailed. It has incorporated many provisions of
decided cases. Let us go over the first paragraph:
Sec. 9. Execution of judgments for
money, how enforced.
(a) Immediate payment on
demand. - The officer shall enforce an execution
of a judgment for money by demanding from
the judgment obligor the immediate payment
of the full amount stated in the writ of execution
and all lawful fees. The judgment obligor shall
pay in cash, certified bank check payable to
the judgment obligee, or any other form of
payment acceptable to the latter, the amount of
the judgment debt under proper receipt directly
to the judgment obligee or his authorized
representative if present at the time of payment.
The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn
over the said amount within the same day to the
clerk of court of the court that issued the writ.
Normally, the sheriff will go to defendant. Talo ka and
you are supposed to pay P1M. So, he will demand payment.
Pagnagbayad yan, wala ng problema. For the first time, the
law tell us now how the judgment should be paid in terms of
money. Cash, certified bank check payable to the judgment
obligee, or any other form of payment acceptable to the
latter. Kung sabihin niya: Yung kotse ko na lang. Okay lang
basta magpayag ang obligee. To whom shall the money be
paid? To the judgment obligee (creditor) or his duly
authorized representative. Aside from that the sheriff will also
collect other lawful fees (fees which go to the government)
and he turns them over to the clerk of court. This assumes that
the obligee is present kasama nung sheriff.
Q: Suppose the oblige or his representative is not present? Let
us go to the second paragraph:
If the judgment obligee or his
authorized representative is not present to
receive payment, the judgment obligor shall
deliver the aforesaid payment to the executing
sheriff. The latter shall turn over all the amounts
coming into his possession within the same day
to the clerk of court of the court that issued the
writ, or if the same is not practicable, deposit
said amounts to a fiduciary account in the
nearest government depository bank of the
Regional Trial Court of the locality.
If the plaintiff is not there, the payment is made to the
sheriff and he is supposed to endorse it to the clerk of court.
The clerk of court will look for the obligee to remit the money.
Ano itong: The latter shall turn over all the amounts coming
into his possession within the same day to the clerk of court of
the court that issued the writ, or if the same is not practicable,
deposit said amounts to a fiduciary account in the nearest
government depository bank of the Regional Trial Court of the
locality. This usually happens if the execution is to be done
outside of Davao. Like the decision is in Davao but enforced
in Cotabato. So, the sheriff in Cotabato will be the one to
enforce and he will give the payment to the clerk of court
there who in turn will transmit the money to the clerk of court in
Davao. Because the decision to be executed in one in
Davao. Let us go to the third paragraph:
The clerk of said court shall
thereafter arrange for the remittance of the
deposit to the account of the court that issued
the writ whose clerk of court shall then deliver
said payment to the judgment obligee in
satisfaction of the judgment. The excess, if any,
shall be delivered to the judgment obligor while
the lawful fees shall be retained by the clerk of
court for disposition as provided by law. In no
case shall the executing sheriff demand that any
payment by check be made payable to him.
This is what I was saying. This assumes that the judgment or
property of the defendant which was levied in Cotabato but
originated here. Clerk to clerk. The last sentence says In no
case shall the executing sheriff demand that any payment by
check be made payable to him. It shall be payable to the
Page 226 of 296
obligee. This was influenced by a decision way back where
the Philippine Airlines lost a case, mga P200T. Then the check
was made payable to the sheriff. Pero lumayas yung sheriff
and never came back. So, the plaintiff has not been paid and
asked for a second payment. Of course, ayaw ng magbayad
ang PAL So, who should suffer? The SC said PAL has to pay
again. So, in order to avoid that kind of anomaly, the new
rules inserted this provision.
(b) Satisfaction by levy. - If the
judgment obligor cannot pay all or part of the
obligation in cash, certified bank check or other
mode of payment acceptable to the judgment
obligee, the officer shall levy upon the
properties of the judgment obligor of every kind
and nature whatsoever which may be disposed
of for value and not otherwise exempt from
execution giving the latter the option to
immediately choose which property or part
thereof may be levied upon, sufficient to satisfy
the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on
the personal properties, if any, and then on the
real properties if the personal properties are
sufficient to answer for the judgment.
Q: Under par. (a), the first step when the judgment debtor
has enough money, bayaran niya in cash or check.
Suppose walang pera. Or the cash is not sufficient. What
will the sheriff do?
A: He shall levy upon the properties of the judgment obligor
of every kind and nature which may be disposed of for
value and not otherwise exempt from execution. In the
vernacular term, sasabihing na-sheriff ka. Levy means the
sheriff will forcibly take from you your property. Your car,
stereo, etc.
Q: Paano kung real property? House and lot?
A: You apply the Property Registration Decree. It will be
annotated in your title. Parang mortgage ba. With that,
your property will be considered under levy.
Levy defined
Q: So, how do we define the word levy?
A: Levy may be defined as the act whereby a sheriff sets
apart or appropriates, for the purpose of satisfying the
command of the writ, a part or the whole of the judgment
debtor’s or judgment obligor’s property.
Legal effects of levy
Q: What is the legal effect of a levy?
A: The levy precedes the auction sale of the property of
the debtor. Therefore, you cannot sell at public auction a
property of a judgment debtor unless it is validly levied.
That is why the SC said: In order that an execution sale
shall be valid, there must be a previous valid levy. A sale
not precede by a valid levy is void and the court officer
acquires no title. Take note that under the law on
execution now, the law gives the debtor or defendant the
option to immediately choose which property or part
thereof may be levied upon sufficient to satisfy the
judgment. Like I am the debtor and I have many
properties. And the account is only P100T. And the sheriff
would like to levy on my house and lot. Or yung Mercedes
Benz ko. Under the law, I have the right to choose. Wala
ito sa old law. However, this was already the ruling of the
SC in the case of FILIPINAS MILLS vs. DAYRIT (192 SCRA 177).
And obviously, the ruling in this case is now incorporated in
the new rules giving the debtor the option to choose which
of his properties may be levied upon sufficient to satisfy the
judgment.
If the defendant does not exercise the option, then
the sheriff will now determine and under the law, the officer
(sheriff) must first levy on the personal property. If it turns out to
be insufficient or there is none, then that is the time he will levy
on the real property of the defendant.
The sheriff shall sell only a sufficient portion of
the personal or real property of the judgment
obligor which has been levied upon.
Well, for example, I levied a property which is worth
P1M and the account is only P700T, I have no right to sell
everything for P1M. That is selling beyond what the judgment
provides for. You have no authority to sell all. You sell only up
to the point that the judgment will be satisfied.
When there is more property of the judgment
obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy
the judgment and lawful fees.
That is the same as the previous section. Aside from
lawful fees, meron pa yang sheriff’s fees, government fees.
That has to be paid also by the judgment obligor.
Real property, stocks, shares, debts, credits,
and other personal property, or any interest in
either real or personal property, may be levied
upon in like manner and with like effect as under
a writ of attachment.
Q: There is no problem about personal property. The sheriff
will just take them like your car, stereo and place it in his
custody. But if it is real property or intangible personal
property like shares of stock, debts, credits (collectibles,
ba), can I levy on these?
A: Yes.
Q: How?
A: They may be levied upon in like manner and with like
effect as under a writ of attachment. Meaning, they are
levied under a writ of execution in the same manner under
a writ of attachment.
Q: How is that?
A: The law on attachment is governed by Rule 57. So, just
say refer to Rule 57.
Q: How do you attach this property?
A: So, they are also the procedure for levying under Rule
39. So, the same procedure. Of course, attachment is a
subject which is to be taken up in third year under
Provisional Remedies and Special Civil Actions,
continuation of Civil Procedure.
Garnishment
When you want to levy or you want to execute on
intangible property, the legal term there is garnishment. You
will garnish the account. And we are now in par. (c) which is
an entirely new provision. Because the prior rule does not
specifically give the procedure to garnish. Merong accounts
and credits may be garnished. But no guidelines are laid
down. Ngayon, meron na.
(c) Garnishment of debts
and credits. - The officer may levy on debts due
the judgment obligor and other credits,
including bank deposits, financial interests,
royalties, commissions and other personal
property not capable of manual delivery in the
possession or control of third parties. Levy shall
be made by serving notice upon the person
owing such debts or having in his possession or
control such credits to which the judgment
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 obligor is entitled. The garnish-ment shall cover
only such amount as will satisfy the judgment
and all lawful fees.
Q: So, what are these properties which may be the subject
of garnishment?
A: Credits which include bank deposits, financial interests,
royalties, commissions and other personal property not
capable of manual delivery. Intangible nga. You send a
notice upon the person owing such debts or having in his
possession or control such credits. And it shall cover only
such amount as will satisfy the judgment.
The best example of garnishment is bank account. Like, I will
file a case against you, talo ka. I learned that you have a
deposit with Security Bank. Either savings or time deposit or
current. Puwede kong habulin yan. That is credit. In your study
of obligations and contracts, the relationship of the depositor
and the bank is that of a creditor and debtor. It is not a
contract of deposit. Because actually, the bank is borrowing
money from you. Kaya nga, it pays you interest. So, under
garnishment, the bank is being commanded not to pay you
but instead pay the sheriff. Yan ang concept ng garnishment.
Q: What is the process of garnishment?
The garnishee shall make a
written report to the court within five (5) days
from service of the notice of garnishment stating
whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of
the judgment. If not, the report shall state how
much funds or credits the garnishee holds for the
judgment obligor. The garnished amount in
cash, or certified bank check issued in the name
of the judgment obligee, shall be delivered
directly to the judgment obligee within ten (10)
working days from service of notice on said
garnishee requiring such delivery, except the
lawful fees which shall be paid directly to the
court.
In the event there are two
or more garnishees holding deposits or credits
sufficient to satisfy the judgment, the judgment
obligor, if available, shall have the right to
indicate the garnishee or garnishees who shall
be required to deliver the amount due;
otherwise, the choice shall be made by the
judgment obligee.
The executing sheriff shall
observe the same procedure under paragraph
(a) with respect to delivery of payment to the
judgment obligee. (8a, 15a)
Garnishee refers to the debtor, like the bank. When
the bank deposit is garnished, the second paragraph tell us
what the bank will do. Of course, if there are 2 or more banks
na ma-garnish, under the next paragraph, the debtor obligor
will determine. If he does not exercise his option, then the
judgment creditor will determine.
Execution of judgment other than money
Sec. 10 is the procedure for executing a judgment
other than to collect money. Because court decisions could
be something else. Hindi lang pera. Or money is incidental.
Like accion publiciana. You are more interested in recovering
your property. Or ejectment. Unlawful detainer. May unpaid
rentals yan pero you are more interested in the ejectment.
Yung unpaid rentals can be collected in the same manner as
Sec. 9.
Sec. 10. Execution of judgments
of specific act. -
(a) Conveyance, delivery of
deeds, or other specific acts; vesting title. - If a
judgment directs a party to execute a
conveyance of land or personal property, or to
deliver deeds or other documents, or to perform
any other specific act in connection therewith,
and the party fails to comply within the time
specified, the court may direct the act to be
done at the cost of the disobedient party by
some other person appointed by the court and
the act when so done shall have like effect as if
done by the party. If real or personal property is
situated within the Philippines, the court in lieu of
directing a conveyance thereof may by an
order divest the title of any party and vest it in
others, which shall have the force and effect of a
conveyance executed in due form of law. (10a)
The nature of the judgment directs a party to
execute a conveyance of land or personal property or to
deliver deeds or other documents, or to perform any other
specific act in connection therewith.
Example is an action for reconveyance of property where you
are asking the defendant, a title owner to convey to you his
property. Like the property will be held in trust or that the title
be in your name instead of his. Or pacto de retro. I sold to
you my land and I am repurchasing it, pero ayaw mo. You
refuse to execute a deed of sale returning the property to me.
Or the Public Land Law. I am the owner of a property under
homestead or free patent and sold it after the prohibition
period. Under the public land law, I have the right to
repurchase it within 5 years. Ayaw mo, so idemanda kita. Of
course, if I win, you will be directed to return to me the
property and execute a deed of sale. Or an action for
specific performance to compel you to return to me said
property. And the court will order: Alright, execute a deed of
sale. You refuse. The court will direct the clerk of court to
execute a deed of sale as if the defendant executed it. You
can ask the court officer to execute it. Or, under Sec. 10 which
is simpler, I will ask the Register of Deeds to cancel his title and
issue another one in my name. That is how this type of
judgment is enforced.
(b) Sale of real or
personal property. - If the judgment be for the
sale of real or personal property, to sell such
property, describing it, and apply the proceeds
in conformity with the judgment. (8(c)a)
The action here is to compel you to sell your property
to me. Just follow par. (a). Par. (c) is the more common one.
Delivery or restitution of real property like unlawful detainer,
forcible entry, accion publiciana. You are trying to recover
the property from the defendant or you are asking that the
defendant be ejected from your building for failure to pay his
rentals. How do you enforce this type of judgment?
(c) Delivery or
restitution of real property. - The officer shall
demand of the person against whom the
judgment for the delivery or restitution of real
property is rendered and all persons claiming
rights under him to peaceably vacate the
property within three (3) working days, and
restore possession thereof to the judgment
obligee; otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, or appropriate peace officers, and
Page 228 of 296
 employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such
property. Any costs, damages, rents or profits
awarded by the judgment shall be satisfied in
the same manner as a judgment for money.
(13a)
Normally, the sheriff will serve a copy of the writ to the
defendant giving him 3 days to vacate. Meaning, hangga’t
maari, kusa kang umalis. Under the old law, there was no such
3-day notice. If after 3 days, ayaw pa ring lumayas, the sheriff
will now come in and oust you with the use of force if
necessary. I will employ the use of the police to do that. And if
there are damages or unpaid rentals, I will also levy the
property under Sec. 9. Because sometimes, aside from ousting
the defendant, meron pang money judgment like unpaid
rentals. So, the property of the defendant may be levied. That
is the procedure.
(d) Removal of
improvements on property subject of execution.
- When the property subject of the execution
contains improvements constructed or planted
by the judgment obligor or his agent, the officer
shall not destroy, demolish or remove said
improvements except upon special order of the
court, issued upon motion of the judgment
obligee after due hearing and after the former
has failed to remove the same within a
reasonable time fixed by the court. (14a)
This is a little bit different from par. (c). Because in
Par. (c), the defendant there is being ousted in an unlawful
detainer case. But sometimes in squatting or recovery of
possession, the plaintiff not only prays for the recovery of the
land but also the destruction or demolition of the
improvements made by defendant on the land. So, the
decision commands the defendant not only to vacate but
also to destroy the improvements he had made.
Writ of demolition
Q: Does the sheriff have the authority by virtue of the writ of
execution not only to oust the defendant under par. (c)
but also to destroy the improvements or the structures of
the defendant under par. (d)?
A: No. In order to remove the improvements on the
property, the plaintiff must secure from the court what is
known as a writ of demolition which is different from the writ
of execution.
Q: How will you do it?
A: The plaintiff will file a petition in court to allow the
destruction, demolition or removal of the improvements or
structures. And the court will issue a special order because
the writ of execution is not sufficient. There must be a
special order issued by the court authorizing such
destruction. Yan ang writ of demolition. And before the
court issues this special order:
(1) it must be after giving the defendant a
chance to be heard. He will be required to attend
on the hearing for the petition to demolish, and
(2) the house of the squatter or defendant will
be demolished only after he has failed to remove the
improvements within a reasonable time fixed by the
court. So, there is no immediate destruction of the
property. May palugit. He is given a chance first to
demolish himself.
Replevin
(e) Delivery of
personal property. - In judgments for the delivery
of personal property, the officer shall take
possession of the same and forthwith deliver it to
the party entitled thereto and satisfy any
judgment for money as therein provided. (8a)
The action is to recover personal property. The
common term here is an action for replevin. This is commonly
done by appliance companies. Bili ka ng appliance tapos
hindi mo nabayan. Babawiin yan nila. Or, a car. The finance
company or the car dealer will resort to this. The financing
company having stepped into the shoes of the car dealer has
the right to recover the unit by filing an action for replevin.
Sec. 9 vs. Sec. 10
So, Sec. 9 is enforcement of money judgment. Sec.
10 is enforcement of judgment other than payment of money.
This is more of delivery of property, real or personal.
ABINUJAR vs. CA
243 SCRA 531 (1995)
This case started as an action for
ejectment under Sec. 10. Unlawful detainer
for non-payment of rentals. The residential
house is located in Manila owed by Ramiro
and leased by Abinujar. Ramiro filed an
action for unlawful detainer against
Abinujar. When the case was in court, they
entered into an amicable settlement. The
amicable settlement says: Abinujar agrees
to pay Ramiro his back rentals in
installments, P50T on Jan. 31, P10T on Feb. 28
and P10 on Mar. 31 until September. Failure
to pay on the part of Abinujar 3 consecutive
payments, Ramiro will be entitled to a writ of
execution. The court approved the
agreement and rendered judgment.
Judgment based on a compromise
agreement. After a few months, Ramiro
filed a motion for execution on the ground
that Abinujar failed to pay the first 3
installments as stipulated in the compromise
agreement. The court granted the motion.
And the court directed the sheriff to serve a
notice to defendant to vacate the
property. Abinujar attacked the validity of
the sheriff’s notice to vacate saying that it
was illegal or not proper. He maintained
that to enforce the judgment under the
agreement, the plaintiff should levy on his
property. Kunin mo yung refrigerator ko. But
you cannot eject me. Plaintiff should have
applied Sec. 9, not Sec. 10. Plaintiff argued
that the case is an action for ejectment. So
the quarrel here is which section should be
applied?
The SC said defendant is
correct. When the parties entered into
a compromise settlement, the original
action for ejectment was set aside and
the action is changed to a monetary
obligation. So, it was converted to a
money judgment. The SC observed: A
perusal of the compromise agreement
signed by the parties and approved by
the court merely provided that in case
defendant failed to pay 3 consecutive
monthly payments, Ramiro would be
entitled to a writ of execution without
Page 229 of 296
 specifying what the subject of the
execution would be. Said agreement
did not state that Abinujar would be
ejected from the premises subject of
the suit in case of any default in
complying with their obligations
thereunder. This was the result of the
careless drafting of the compromise
agreement of which only Ramiro could
be blamed. As Abinujar’s obligation
under the compromise agreement as
approved by the court was voluntary in
nature, Ramiro can avail only of the
writ of execution provided in Sec. 9 and
not that provided in Sec. 10.
Ordinary and Special Judgment
Sec. 11. Execution of
special judgments. - When a judgment requires
the performance of any act other than those
mentioned in the two preceding sections, a
certified copy of the judgment shall be attached
to the writ of execution and shall be served by
the officer upon the party against whom the
same is rendered, or upon any other person
required thereby, or by law, to obey the same,
and such party or person may be punished for
contempt if he disobeys such judgment. (9a)
Obviously, based on Sec. 11 court judgments for
purposes of execution are classified into 2 types – (1) ordinary
and (2) special.
Ordinary judgments are those mentioned in sections
9 and 10. When the judgment orders defendant to pay money
or the judgment orders defendant to deliver property, real or
personal. And I have to admit, 95% of all judgments fall under
Secs. 9 & 10. Like utang, damages, ejectment.
Special judgment may be defined as a judgment
which requires the defendant to perform an act other than
payment of money or delivery of property. It refers to a
specific act which a party or person must personally do
because his personal qualifications and circumstances have
been taken into consideration. Example: You are the city
treasurer and somebody else is appointed city treasurer.
Ayaw mong lumayas. You are ordered to vacate your
position but you refused. Tapos, judgment. That is a special
judgment because you are not ordered to pay anything nor
deliver property. You are instead ordered to vacate the
public office and stop exercising the function of the office
because you are already a usurper.
Q: What is the importance of distinguishing these 2 types of
judgment?
A: The answer is under Sec. 11. A special judgment may be
enforced by contempt declaring the disobedient party to
be in contempt.
Sec. 9 - Defendant is sued for non-payment of a
debt. Tapos, judgment. He refuses to honor the judgment.
Will I cite him for contempt? Ipapreso siya? Paano yung
provision sa constitutional law which provides that no person
shall be imprisoned for debt? So, what is the correct
procedure? You apply Sec. 9. You look for properties of the
defendant, ipa-levy mo. You do not send the debtor to jail.
Sec. 10 - Mr. Squatter, vacate ka na. I am giving you
3 days to vacate. Ayaw. So, I will get the police to back me
up. And that is the procedure. You do not declare him in
contempt and send him to jail .
Sec. 11 - Mr. Defendant, you vacate this office. You
are no longer the city treasurer. The real treasurer is plaintiff.
Ayaw. Dito ako matulog. Bahala na. The plaintiff can have him
arrested and brought to jail. It can be enforced by contempt.
Sec. 12. Effect of levy on
execution as to third persons. - The levy on
execution shall create a lien in favor of the
judgment obligee over the right, title and interest
of the judgment obligor in such property at the
time of the levy, subject to liens and
encumbrances then existing. (16a)
This is related also to Land, Titles and Deeds. An execution
does not prejudice third parties who have liens and
encumbrances over the property. Example: B is the owner of
a property mortgaged to a bank. The lien or mortgage of the
bank is annotated on the title of B. A filed a case against B to
recover the ownership of that property and B lost and the
judgment became final. So the property owned by B will now
be transferred to A who is now the new owner. Now, what
happens to the mortgage? The lien continues even if it is now
with A. You cannot deprive the right of the bank. Safe ang
bank. So, an execution does not prejudice third persons. The
property is still subject to liens or encumbrances then existing.
Properties exempt from execution
Sec. 13 is another important provision. In enforcing a
money judgment, the sheriff can levy on the properties of the
defendant, real or personal in order that it may be sold at a
public auction. However, under Sec. 13, there are some
properties that are exempt from execution. The sheriff cannot
levy on them. So, if these properties are levied, the debtor can
question the levy.
Sec. 13. Property exempt
from execution. - Except as otherwise expressly
provided by law, the following property, and no
other, shall be exempt from execution:
(a) The judgment obligor’s
family home as provided by law, or the
homestead in which he resides, and land
necessarily used in connection therewith;
So, the house where the debtor and his family reside.
Of course, including the lot which is part of the family home.
Under the Family Code, we know what is a family home. So,
the debtor is guaranteed that he will not end up homeless. The
law guarantees that you will not be thrown out into the streets.
(b) Ordinary tools and
implements personally used by him in his trade,
employment, or livelihood;
Example, the debtor is a karpentero. He earns his
living with his hammer, saw, etc. You cannot levy on these
tools. Otherwise, wala na siyang hanapbuhay. The new law
added the words ordinary and personally. I think this was
influenced by the ruling of the SC in the case of:
PENTAGON SECURITY vs. JIMENEZ
192 SCRA 492
Pentagon Security is engaged in
security services. Because of a money
judgment against the agency in a labor
case where it lost, the sheriff levied on the
licensed firearms owned and used by the
agency in its operations. Pentagon claimed
that the firearms were exempt from
execution under this provision because they
are tools and implements used by the
agency in its business. Is Pentagon correct?
Page 230 of 296

The SC said Pentagon is
wrong. The term tools and
implements refer to instruments of
husbandry or manual labor
needed by an artisan or craftsman
or laborer to obtain his living.
Here, Pentagon is a business
enterprise. It does not use the
firearms personally but they are
used by its employees. Not being
a natural person, Pentagon
cannot claim the firearms are
necessary for its livelihood. It would
appear that the exemption
contemplated by the provision
involved is personal available only
to a natural person. If properties
used in business are exempt from
execution, there can hardly be an
instance when a judgment claim
can be enforced against the
business entity. If every property
used in the business is covered,
then all property used by the
business is exempt.
So, halimbawa and Bachelor. I will levy on the bus. Tool and
implement. Or, eroplano ng PAL. Tool and implement. My
golly. Lahat ng property, tool and implements na. So, exempt.
That is not what the law contemplates.
So, the firearms in the case of PENTAGON can be sold at
public auction. The SC said further: However, for security
reasons and to prevent the possibility that the firearms to be
sold at the execution sale might fall in the hands of lawless and
subversive elements, the sale at public auction should be with
the prior clearance and under the supervision of the PNP.
(c) Three horses, or three
cows, or three carabaos, or other beasts of
burden, such as the judgment obligor may
select necessarily used by him in his ordinary
occupation;
A farmer uses a carabao to plow his field. Or a
kutsero. He needs karatela. And the law says, at least three.
Under the old rule, dalawa lang, eh.
(d) His necessary
clothing and articles for ordinary personal use,
excluding jewelry;
So, huwag mong i-levy yung baro or you will be
naked. And articles for ordinary personal use. Do not levy on
the toothbrush, suklay, etc. because these are for ordinary
personal use. But jewelry, yes. For extravagance and display
na lang yan.
(e) Household furniture
and utensils necessary for housekeeping, and
used for that purpose by the judgment obligor
and his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
Plato, pinggan, kaldero. But take note, not
exceeding P100T. Kung lampas na, yung sobra, puwede na.
Like yung plato mo Pyrex or Noritake. Mga mamahalin ba na
porcelain, ba.
Now, a sheriff asked me this question. They would like
to levy on somebody na natalo na. So, he went to the house
and levied on the appliances like TV, refrigerator, VHS, etc. But
the lawyer of the defendant resisted. Sabi niya, hindi man
maglampas lahat yan ng P100T. Ang TV, P10T. Refrigerator,
P10T. Microwave, P15T, etc. So, wala kang makuha dito. My
personal view on this matter is that the appliances mentioned
are not covered because the word household furniture does
not include appliances. Household furnitures are those
basically needed in the home like the dining table. They
should be interpreted as those similar to utensils necessary for
housekeeping like the dining table, sala set, beds, etc.
Because everybody needs that.
(f) Provisions for
individual or family use sufficient for four months;
Like one sack of rice, canned goods, etc. Good for 4
months supply. Pero kung meron ka ng bodega ng mga ito,
ibang usapan na yan. That is family consumption for one year.
(g) The professional
libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other
professional, not exceeding three hundred
thousand (P300,000.00) pesos in value;
Mga libro ng abogado, equipment like typewriter,
computer. Dentist’s chair, etc. Exempt, no. Paglampas ng
P300T, puwede na.
(h) One fishing boat and
accessories not exceeding the total value of
one hundred thousand (P100,000.00) pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
Fishing boat, nets not exceeding P100T.
(i) So much of the salaries,
wages, or earnings of the judgment obligor for
his personal services within the four months
preceding the levy as are necessary for the
support of his family;
Salary for the past 4 months. Hindi puwedeng
galawin. If he is earning a very meager income, hindi mo
puwedeng galawin.
(j) Lettered gravestones;
Lapida ba ng mga patay doon sa sementeryo.
Bronse yun, eh.
(k) Monies, benefits,
privileges, or annuities accruing or in any
manner growing out of any life insurance;
Life insurance proceeds. The father died. Kung
merong life insurance yung deceased, hindi yan puwede
because that takes the place of the deceased person’s
earnings.
(l) The right to receive
legal support, or money or property obtained as
such support, or any pension or gratuity from the
Government;
The support which is granted to as person, or any
pension or gratuity from the government like GSIS or SSS
retirement mo, di puwede.
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(m) Properties specially
exempted by law.
That is very broad. Mga SSS benefits, the homestead
within 5 years. I think the property under the CARP is also
exempt.
But no article or
species of property mentioned in this section
shall be exempt from execution issued upon a
judgment recovered for its price or upon a
judgment of foreclosure of a mortgage thereon.
(12a)
The above properties are not exempt from execution
upon a judgment recovered for its price or upon a judgment
of foreclosure of a mortgage. Example. I am a lawyer and I
bought from Alemar’s law books for P50T. I did not pay so
Alemar’s sued me and I lost. So, the sheriff levied on the same
books I bought from them. Sabi ko, you cannot because
those books are part of my professional library. This time, I am
wrong. Precisely, I owe Alemar’s because of these books that
is why there is a judgment for the price of these books. So,
hindi na exempt.
Or, you mortgaged your house to somebody. Hindi
ka nakabayad. Foreclosure. Tapos sabihin mo hindi puwede
dahil family home? May utang ka nga. Since you mortgaged
it, hindi na kasali sa exemptions.
Sec. 14. Return of writ of
execution. - The writ of execution shall be
returnable to the court issuing it immediately
after the judgment has been satisfied in part or
in full. If the judgment cannot be satisfied in full
within thirty (30) days after his receipt of the writ,
the officer shall report to the court and state the
reason therefor. Such writ shall continue in effect
during the period within which the judgment
may be enforced by motion. The officer shall
make a report to the court every thirty (30) days
on the proceedings taken thereon until the
judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall set
forth the whole of the proceedings taken, and
shall be filed with the court and copies thereof
promptly furnished the parties. (11a)
The sheriff will be the one to enforce the execution. The writ of
execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in part or in
full.
Q: What does that mean?
A: The sheriff shall report to the court what happened. Was
it enforced or not? Was the judgment satisfied or not? As
we have learned in summons, the sheriff has to make a
return. Ganoon din. And he must make the report within 30
days.
Life of writ of execution
The next sentence is new. Such writ shall continue in
effect during the period within which the judgment may be
enforced by motion. In effect, it tells us the life or effectivity of
a writ of execution. We have already discussed that in Sec. 6.
Within what period may a judgment be enforced by motion?
Five years.
What was the old law? The writ of execution has a life
of only 60 days. So, after 60 days, paso na. Ang remedy ng
plaintiff, file uli ng motion for alias writ. Tapos, paso na naman.
Another motion. Now, it is good for five years. Hindi ka na
magpabalik-balik sa court. So, kung wala akong makuha
ngayon, istambay muna. After 2 years, meron ng property,
you don’t have to go to the court again. So, after the lapse of
5 years, if you want to enforce that dormant judgment, you file
an independent action.
Notice of Sale
Sec. 15. Notice of sale of
property on execution. - Before the sale of
property on execution, notice thereof must be
given as follows:
(a) In case of perishable
property, by posting written notice of the time
and place of the sale in three (3) public places,
preferably in conspicuous areas of the
municipal or city hall, post office and public
market in the municipality or city where the sale
is to take place, for such time as may be
reasonable, considering the character and
condition of the property;
(b) In case of other personal
property, by posting a similar notice in the three
(3) public places above-mentioned for not less
that five (5) days;
(c) In case of real property, by
posting for twenty (20) days in the three (3)
public places above-mentioned a similar notice
particularly describing the property and stating
where the property is to be sold, and if the
assessed value of the property exceeds fifty
thousand (P50,000.00) pesos, by publishing a
copy of the notice once a week for two (2)
consecutive weeks in one newspaper selected
by raffle, whether in English, Filipino, or any
major regional language published, edited and
circulated or, in the absence thereof, having
general circulation in the province or city;
(d) In all case, written notice of
the sale shall be given to the judgment obligor,
at least three (3) days before the sale, except as
provided in paragraph (a) hereof where notice
shall be given at any time before the sale, in the
same manner as personal service of pleadings
and other papers as provided by section 6 of
Rule 13.
The notice shall specify the
place, date and exact time of the sale which
should not be earlier than nine o’clock in the
morning and not later than two o’clock in the
afternoon. The place of the sale may be agreed
upon by the parties. In the absence of such
agreement, the sale of real property or personal
property not capable of manual delivery shall
be held in the office of the clerk of court of the
Regional Trial Court or the Municipal Trial Court
which issued the writ or which was designated
by the appellate court. In the case of personal
property capable of manual delivery, the sale
shall be held in the place where the property is
located. (18a)
This is what you call notice of sale. After the levy,
public auction follows. As much as possible, we want
everybody to know about it so that they can participate.
Kaya nga may notices in public places. Kung real property,
aside from the notice, meron pang publication. Tapos, meron
ding notice to the debtor himself. Time and place. And mind
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you, this requirement is mandatory. If you fail to comply with
this, the sale is null and void. Because these are proceedings
intended to deprive a person of his property so they should be
strictly observed.
There was a case before the defendant did not even
know that his property was subject of public auction. The
property was still in the name of the vendor because he was
not able to register the transaction. The vendor pala, may
utang. Yung plaintiff, nakita yung property, gi-levy.
Meanwhile, yung defendant doon pa niya na-realize na hindi
pala registered under his name when he made an inventory of
his properties in connection with a partnership with a
Japanese corporation. Location pala yun ng plant nila. When
he went to register it, he found out that na-levy na 10 months
ago pa. Two months na lang and they would lose the
property. So, they panicked. So, I told them that the trick there
was to trace the execution from the date of the notice up to
the end, tapos hanapan ng butas and then question the
validity of the execution. Because we know that the
requirements should be observed strictly. Pero at fault man din
yung kliyente ko kasi he did not register. So we compromised
na lang. Ganoon ang nangyari. Takot din siyang ma-nullify
yung execution.
TERCERIA or Third party claim procedure
Sec. 16. Proceedings
where property claimed by third person. - If the
property levied on is claimed by any person
other than the judgment obligor or his agent,
and such person makes an affidavit of his title
thereto or right to the possession thereof, stating
the grounds of such right or title, and serves the
same upon the officer making the levy and a
copy thereof upon the judgment obligee, the
officer shall not be bound to keep the property,
unless such judgment obligee, on demand of
the officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property levied on. In
case of disagreement as to such value, the
same shall be determined by the court issuing
the writ of execution. No claim for damages for
the taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
This is known as a third party claim procedure in
execution which is a very important provision. And it is also
called terceria. Example: A filed a case against B. There was
a judgment in favor of A. The sheriff levied on properties in the
possession of B. But actually, his properties are not owned by
him. They are owned by X and are being used only by B. So, X
learned that his properties were levied. So, what will X do?
Your properties are levied to answer for the debt of another
person.
Under Sec. 16, one of our remedies is to file a third-
party claim before the sheriff. A third-party claim is simply an
affidavit where you will state that you are the actual owner of
the property which is being levied stating your right of
possession thereof and stating also the grounds of such right or
title. And you serve a copy of the third-party claim upon the
sheriff and a copy upon the judgment obligee. That is a
warning to the sheriff that he cannot proceed with the sale.
So, the sheriff now is duty bound to release the property to the
third-party claimant.
Suppose, the creditor would oppose it. Kalokohan
yan. Huwag kang maniwala diyan. Under the law, the sheriff
can require the creditor to put up an indemnity bond. Kung
totoo pala yan, so, may damages. At least may bond to
answer for the erroneous sale. In case of disagreement as to
such value, the same shall be determined by the court issuing
the writ of execution.
Q: Under the rules, where will you file your third-party claim?
A: You file it to the sheriff. But according to the SC, even if
you filed it before the sheriff, it is deemed filed in court
because a sheriff is an agent or officer of the court.
Because kung mag-away tayo on the bond, tapos the
sheriff wins, hindi naman actually yung sheriff ang nanalo.
It is the court. If the sale proceeds, the third-party claimant
can hold the bond liable for damages or the value of the
property erroneously levied. However, the law grants him
only 120 days from the date of the filing of the bond to file
an action for damages. After that, the bond will no longer
be liable for the damages. So, that is a third-party claim.
Third-party claim vs. Third-party complaint
Do not confuse this third-party claim with a third-party
complaint under Rule 6.
third-party complaint third-party claim
a pleading which the an affidavit filed by a third
defendant, with leave of person with the sheriff claiming
court, files against a person that the property which was
not a party to the action levied on execution actually
for contribution, indemnity, does not belong to the
subrogation or any other judgment obligor but to the
relief in respect of his third-party claimant. He will lay
opponent’s claim. his claim on the property
erroneously levied. Kaya nga it
is called terceria.
The officer shall
not be liable for damages for the taking or
keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any
third person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim.
When the writ of
execution is issued in favor of the Republic of
the Philippines, or any officer duly representing
it, the filing of such bond shall not be required,
and in case the sheriff or levying officer is sued
for damages as a result of the levy, he shall be
represented by the Solicitor General and if held
liable therefor, the actual damages adjudged
by the court shall be paid by the National
Treasurer out of such funds as may be
appropriated for the purpose. (17a)
Q: How do you classify this third-party claim of affidavit?
A: It is a remedy under the rules granted to a person whose
property was erroneously levied in a case where he is not a
party. He will use it to assert his claim over the property.
And if the other party wants to proceed with the sale, he
must put up an indemnity bond and I can run against the
bond for the damages.
If your property is erroneously levied to satisfy a
judgment which is not against you, your remedy is to file a
third-party claim.
Q: Is that your only remedy?
A: No. Meron pa. Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim
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 to the property in a separate action. Suppose instead of
filing a third-party claim, I will file a civil case against the
plaintiff and the sheriff where I will allege in my complaint
that the property which they levied and are going to sell is
not owned by the defendant but by me. Can I do that?
Yes, I can also do that. But according to the SC, if you do
not file a third-party claim, there is no indemnity bond
involved.
Q: But can’t you not seek relief from the same court which
prejudiced you? Why do I have to file a separate civil
action? Can you raise the issue of ownership in the same
civil case which decided the execution?
A: The SC said no. You cannot seek relief from that same
court. You have to file another case.
Q: Di ba multiplicity of suits na yan?
A: Actually, if you will seek relief which rendered the
judgment against the defendant, your seeking relief is
actually a form of intervention. And one of the grounds for
intervention is when the intervenor is to be adversely
affected by a distribution or disposition of a property in the
custody of the court or the officer of the court. You are
questioning the execution. You are adversely affected. So,
in effect, by asking the court to rule on your third-party
claim, you are actually filing a motion for intervention
under Rule 19. But according to the SC, intervention is only
possible before judgment. During the trial lang. So, the
court which rendered the judgment can no longer
entertain your intervention because it is no longer timely.
So, your remedy is to file another civil case asserting your
third-party claim. This is one of the most complicated areas
in execution. So, remember that.
So, if you want to claim that you are the real owner of a
propertyand it cannot be threshed out in the same case. But
this should not be confused with what the SC said in the case
of:
SY vs. DISCAYA
181 SCRA 378
According to the SC, if you are a
third person and your property was
erroneously levied by the sheriff, you can
actually complain in the very court which
rendered the judgment. You can complain
about the sheriff and the court has the
power to correct the error because the
sheriff is one of its officers. But the power of
the court is only to determine whether the
sheriff acted correctly or not. That’s all. But
the court has no power to decide on the
question of ownership. Because the issue of
ownership must be decided in a separate
case.
A third person whose property was
seized by the sheriff to answer for the
obligation of the judgment debtor may
invoke the supervisory power of the court
which authorized such execution upon due
application by the third person and after
summary hearing, the court may command
that the property be released from the
mistaken levy and restored to the rightful
owner or possessor. What said court can do
in these instances, however, is limited to the
determination of whether the sheriff has
acted rightly or wrongly in the performance
of his duties in the execution of the
judgment or specifically, if he has indeed
taken hold of property not belonging to the
judgment debtor. The court does not and
cannot pass upon the question of title of the
property with any character of finality. It
can treat of the matter only insofar as is
necessary to decide if the sheriff has acted
correctly or not.
And this pronouncement by the SC has been the
source of confusion. So, if my property is levied by the sheriff,
what should I do? Should I complain to the court which
rendered the judgment or should I file a separate case?
Because based on the ruling of the SC in Discaya, I can go to
court and it has the power to decide whether the sheriff acted
wrongly or not. But if the question is whether I am the owner of
the property or not, the court has no power to rule on that. I
have to file a separate case because that would amount to
an intervention. Many people do not exactly understand
what this means. Well, my personal interpretation is this: How
do I complain to the same court by simply asking the court to
rule whether the sheriff acted correctly or wrongly and
therefore, there is no need for me to file a separate case and
when is there a need for me to file a separate civil case on the
question of ownership? How do you distinguish one situation
from the other?
Suppose there is a case between A and B. And B
lost. The sheriff, looking for the property of B went to my house
and got the properties I possessed to satisfy the case against B.
I do not have to file a separate case in this situation. I will
simply complain to the court. Why will the sheriff go to my
house when I am not the defendant? And the court has the
power to correct that. But if the sheriff goes to the premises of
B and finds in his possession properties and starts to levy on
them and there is a presumption under the law on property
that the possessor is presumed to be the owner. Here comes
X. Actually those properties in the possession of B are not his
but owned by me. Mahirap yan. There is now a question of
ownership. And the court which rendered the decision cannot
decide on that issue of ownership. This time, it is more proper
to file a separate civil action. That is what the SC had in ind
when they ruled in the case of Sy vs. Discaya.
The SC summarized all these remedies in the case of:
EVANGELISTA vs. PENSERGA
242 SCRA 702
The SC said: The remedies of a
third person whose property was seized by
the sheriff to answer for the obligation of a
judgment obligor are the following:
1. Invoke the
supervisory power of
the court which
authorized such
execution (Sy vs.
Discaya)
2. Terceria - third party
claim (sec. 16)
3. Any proper action
to vindicate his claim
to the property,
meaning a separate
civil action. (2nd par.,
sec. 16)
Sec. 17. Penalty for selling
without notice, or removing or defacing notice. -
An officer selling without the notice prescribed
by section 15 of this Rule shall be liable to pay
punitive damages in the amount of five
thousand (P5,000.00) pesos to any person
injured thereby, in addition to his actual
damages, both to be recovered by motion in
the same action; and a person willfully removing
or defacing the notice posted, if done before the
sale, or before the satisfaction of the judgment if
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 it be satisfied before the sale, shall be liable to
pay five thousand (P5,000.00) pesos to any
person injured by reason thereof, in addition to
his actual damages, to be recovered by motion
in the same action. (19a)
There is nothing much there. In the previous section,
we said that notice of auction sale should be posted in public
places like the hall of justice. You are not supposed to remove
or deface these notices otherwise multahan ka.
Sec. 18. No sale if
judgment and costs paid. - At any time before
the sale of property on execution, the judgment
obligor may prevent the sale by paying the
amount required by the execution and the costs
that have been incurred therein. (20a)
Q: Puwede bang pigilan ang execution? Is there a way to
prevent the sale of the property?
A: Yes kung binayaran ko lahat yung utang ko or payment
of the account. That’s what the law says. It’s like a
mortgage. The bank is foreclosing your mortgage and sell
the property at public auction. To stop the bank from
proceeding with the sale, you go to the bank and pay all
your obligations. So, wala ng auction sale.
Sec. 19. How property sold
on execution; who may direct manner and order
of sale. - All sales of property under execution
must be made at public auction, to the highest
bidder, to start at the exact time fixed in the
notice. After sufficient property has been sold to
satisfy the execution, no more shall be sold and
any excess property or proceeds of the sale
shall be promptly delivered to the judgment
obligor or his authorized representative, unless
otherwise directed by the judgment or order of
the court. When the sale is of real property,
consisting of several known lots, they must be
sold separately; or, when a portion of such real
property is claimed by a third person, he may
require it to be sold separately. When the sale is
of personal property capable of manual
delivery, it must be sold within view of those
attending the same and in such parcels as are
likely to bring the highest price. The judgment
obligor, if present at the sale, may direct the
order in which property, real or personal, shall
be sold, when such property consists of several
known lots or parcels which can be sold to
advantage separately. Neither the officer
conducting the execution sale, nor his deputies,
can become a purchaser, nor be interested
directly or indirectly in any purchase at such
sale. (21a)
All execution sale must be done at public auction.
The public is invited to participate. Kaya nga may public
notice. There is even publication if it is real property. To the
highest bidder. How does it happen? Normally, ang unang
mag-bid yung creditor. Yung bid niya is usually equal to the
judgment in his favor. Kung P1M including the principal and
interests, his bid would also be P1M. Suppose there are many
properties levied. You sell them one by one. Hindi puwedeng
sabay-sabayin. After sufficient property have been sold and it
is enough to satisfy the debt, then do not sell anymore. Do not
sell more than what is necessary to satisfy the judgment.
When the sale is of real property, consisting of several known
lots, they must be sold separately. Years ago, I witnessed an
auction sale of a subdivision here. Obviously the owner of the
subdivision failed to pay his account so there was public
auction. The subdivision consisted of more than 100 lots. Iba-
ibang location. You cannot say: Alright, 150 lots, pila? Hindi
puwede yan. Dapat, lot no. 1, lot no. 2, etc. Kaya nga
matagal. Until the proceeds are enough to satisfy the
judgment. So, isa-isa.
And the law says if the debtor is present, he can
intervene. Sabihin niyang unahin muna ito. Or, ito muna.
Because he may know of somebody willing to buy his
property. So, he can tell the sheriff: If you want to sell, unahin
mo muna ito kasi may malaking buyer yan. In order that he
may have his other properties saved pa from the execution.
The last sentence says: Neither the officer conducting
the execution sale, nor his deputies, can become a purchaser,
nor be interested directly or indirectly in any purchase at such
sale. The sheriff nor his deputy cannot participate. That is
prohibited. There is also a prohibition in the civil code on this.
Prohibited sales. A judge cannot be interested in the sale of a
property which is the subject matter of litigation. Even a
lawyer cannot purchase a property involving a case which he
has handled. These are prohibited transactions to prevent
conflict of interest.
Sec. 20. Refusal of
purchaser to pay. - If a purchaser refuses to pay
the amount bid by him for property struck off to
him at a sale under execution, the officer may
again sell the property to the highest bidder and
shall not be responsible for any loss occasioned
thereby; but the court may order the refusing
purchaser to pay into the court the amount of
such loss, with costs, and may punish him for
contempt if he disobeys the order. The amount
of such payment shall be for the benefit of the
person entitled to the proceeds of the execution,
unless the execution has been fully satisfied, in
which event such proceeds shall be for the
benefit of the judgment obligor. The officer may
thereafter reject any subsequent bid of such
purchaser who refuses to pay. (22a)
So, auction sale. We are now going to sell this piece
of property. Highest bidder. P10T. Next, P11T, etc. Tapos may
nag-bid ng P40T. Any other bid? Wala. So, it is sold to you.
Saan ang pera mo? Wala akong pera. Biro lang yun. My
golly. That person can be declared in contempt of court. So,
we have to repeat the whole procedure. This time, he cannot
bid anymore. The officer may thereafter reject any
subsequent bid of such purchaser who refused to pay.
Sec. 21. Judgment obligee
as purchaser. - When the purchaser is the
judgment obligee, and no third-party claim has
been filed, he need not pay the amount of the
bid if it does not exceed the amount of his
judgment. If it does, he shall pay only the
excess. (23a)
Q: Can the creditor who won the case bid?
A: Yes because that is open to the public. As a matter of
fact, in normal auction sale, the first bidder is the plaintiff
himself.
Q: If I am the plaintiff, the judgment obligee and I am the
highest bidder and there is no other bidder, am I obliged to
pay for my bid?
A: No. You just apply the law on compensation. You owe
me P1M based on the final judgment. My bid is P1M and I
am the highest bidder. So, quits. Under the law on
compensation, I win without paying anything. That is the
rule.
Page 235 of 296
 Q: When is the obligee required to put up money for his
bid?
A: The first instance is where his bid is higher than the
judgment in his favor. The judgment in my favor is P1M. My
bid is P1.2M and I am the highest bidder. So, I have to pay
the balance of P2T because that is more than the
judgment in my favor.
The second instance where the obligee is required to put
up the amount is when the property to be sold is the
subject of a third-party claim in accordance with Sec. 16.
Because there is controversy there whether the property is
really owned by the judgment debtor. Many people do
not know this. If the third-party claim is false, the money
will be returned to you. If it is valid, then it will be given to
the real owner.
So the obligee is required to put up money for his bid in the
following instances:
(1) where the bid is higher than the judgment in
his favor
(2) when there’s a third-party claim
Sec. 22. Adjournment of
sale. - By written consent of the judgment
obligor and obligee, or their duly authorized
representatives, the officer may adjourn the sale
to any date and time agreed upon by them.
Without such agreement, he may adjourn the
sale from day to day if it becomes necessary to
do so for lack of time to complete the sale on
the day fixed in the notice or the day to which it
was adjourned. (24a)
There is nothing much there. Suppose the auction
sale was scheduled today pero hindi natapos, because there
are so many properties to be sold, then it can continue
tomorrow. Kung i-postpone next week, both parties must
agree by written consent. Do you know why these dates are
very important? Because you have already advertised, so any
change in the dates has to be strictly complied with.
Q: What properties can be sold at public auction?
A: Either personal or real. If personal property, there are 2
types: One capable of manual delivery and the other one
not capable of manual delivery. Yung mga intangible ba.
Q: What is the procedure for the for the sale of property
capable of manual delivery and one not capable of
manual delivery?
A: We have Secs. 23 and 24 for personal property. When it
comes to real property, the procedure is Sec. 25.
Sec. 23. Conveyance to
purchaser of personal property capable of
manual delivery. - When the purchaser of any
personal property, capable of manual delivery,
pays the purchase price, the officer making the
sale must deliver the property to the purchaser
and, if desired, execute and deliver to him a
certificate of sale. The sale conveys to the
purchaser all the rights which the judgment
obligor had in such property as of the date of
the levy on execution or preliminary
attachment. (25a)
Sec. 24. Conveyance to
purchaser of personal property not capable of
manual delivery. - When the purchaser of any
personal property, not capable of manual
delivery, pays the purchase price, the officer
making the sale must execute and deliver to the
purchaser a certificate of sale. Such certificate
conveys to the purchaser all the rights which the
judgment obligor had in such property as of the
date of the levy on execution or preliminary
attachment. (26a)
So, when the property is capable of manual delivery
like a car, you are the highest bidder, I will deliver the car to
you. And I will execute to you a deed of sale which shall be
signed by the sheriff to prove that you are the highest bidder.
With that, you can register it with the LTO. Automatic. The LTO
will transfer the registration of the car in your favor.
Q: How about properties not capable of manual delivery,
yung mga intangible assets?
A: According to Sec. 24, the officer making the sale must
execute and deliver to the purchaser a certificate of sale.
That is tantamount to delivery already. That is what you
call in Sales as constructive tradition. Breva mano, longa
mano, mga ganoon. That is what it means. There are
things which you cannot physically deliver.
Q: When you buy a property at an auction sale and the
sheriff executes a sale in your favor, do you become the
owner of the property where you are the highest bidder?
Does the purchaser acquire ownership over the property?
You look at the last sentences of both sections. The sale
conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on
execution or preliminary attachment. What does that
mean?
A: If he is the owner and you bid and you are the highest
bidder, you become the owner because you acquire his
rights. But suppose the person owning the property is not
the owner of the property although he has some rights over
the property and his rights were sold, then you only acquire
also whatever rights he has. You do not acquire
ownership. A spring cannot rise higher than its source.
Example, you are the defendant but you enjoy the rights only
as a usufructuary, you are the beneficial owner of the property
but not the naked owner (the immoral, pornographic owner,
as my civil law reviewer would call it), and your rights are
levied. And I am the purchaser. I do not acquire the property
as the naked owner. I can only acquire his beneficial right of
ownership. I can only acquire whatever rights the defendant
has. That is why the SC made a commentary on that issue. In
one case, the SC said that the sheriff’s sale under Rule 39, the
sheriff does not actually sell the property although that is the
common belief of many. The sheriff is not selling the property
at public auction. The sheriff simply sells whatever interest in
that property the judgment debtor or obligor has. And if you
buy his interest and afterwards develop that he has none, you
are still liable on your bid because you have offered so much
for his interest in an open market and it is for you to determine
before you bid what his interest is. That is why if you look at the
sheriff’s notice of sale, meron yang warning. notice to
prospective bidders: You are advised to find out whatever
interest a debtor has. And you cannot hold the sheriff liable.
There is no warranty here on ownership. So, do not confuse
this with a private sale of property. There is warranty there
against eviction. Wala yan sa sheriff’s sale. He does not
warrant the ownership of the property. The law only
guarantees that you will acquire whatever interest he has.
And if his interest is less than what you expect, pasensiya ka.
This is a case of caveat emptor - let the buyer beware. Hence,
it’s for the buyer to investigate the title to the propertly.
Sec. 25. Conveyance of
real property; certificate thereof given to
purchaser and filed with registry of deeds. -
Upon a sale of real property, the officer must
give to the purchaser a certificate of sale
containing:
Page 236 of 296
 (a) A particular description of
the real property sold;
(b) The price paid for each
distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of
redemption expires one (1) year from the date
of the registration of the certificate of sale.
Such certificate
must be registered in the registry of deeds of the
place where the property is situated. (27a)
So, if the property sold at public auction is a piece of
land, the sheriff will execute in your favor what is known as a
sheriff’s certificate of sale. Parang normal deed of sale rin. the
description of the property sold. Pila. How much per parcel
kung daghan. Par. (d) is important. A statement that the right
of redemption expires one (1) year from the date of the
registration of the certificate of sale.
Q: Now, what is the main difference between a sale of
personal property under Secs. 23 and 24 and sale of real
property under Sec. 25?
A: The importance difference that you must never forget is
when the property sold at auction is real property, the
debtor or defendant has one year to redeem the property
from the purchaser. That is what you call the right of
redemption. But if it is personal property, there is no right of
redemption. So, if it is a lot, it is not kissing good-bye to your
property. You still have one year to redeem it and that is
your last chance.
Now, take note that the period to redeem is one
year. Computation of the period is date of the registration of
the certificate of sale in the office of the Registry of Deeds. It is
not date of the auction sale. Under the old law, malabo eh.
Date of the sale lang ang nakalagay. Anong sale? Date of
the auction sale or date of certificate of sale? But as
interpreted by the SC, date of the registration. That is the start
of the counting. Kaya nga if there is a sale in your favor and
you delay the registration, ikaw ang kawawa. Because the
longer you delay it, the period of redemption keeps on being
stretched.
And one thing that is also amended by the new law
is that the right of redemption expires after one year. Under
the old law, it expires after 12 months. That was the language.
There was a disparity before between the right of redemption
in mortgages and the right of redemption under Rule 39.
Under the mortgage law, the right of redemption is one year.
But under the rules of court, the right of redemption of the
execution debtor is 12 months. Parang pareho no? Pero you
look at the law. When the law says year, it means 365 days.
When the law says one month, 30 days. So, 30 times 12 is only
360 days. It is five days less. Kaya nga the SC said one year is
not the same as 12 months. So, under the new rules, pareho
na ang period which is one year to avoid confusion.
Q: Can you attack the validity of an auction sale?
A: The general rule, according to SC is that you cannot
attack the auction sale on the presumption that the law
has been followed. There is a presumption that the sheriff
followed the law.
However, the SC gave two exceptions. An auction sale
can be set aside and ruled as not valid:
(1) where you can show serious irregularities committed
by the officer in conducting the sale. The nature of the
irregularity is such that injury resulted therefrom, and
(2) when the price obtained at the execution sale is
shockingly inadequate and it is shown that a better price
can be obtained at a resale. Example, I owe Juan dela
Cruz P100T. The sheriff levied on my brand new
Mercedes Benz. Then ang highest bidder is only P40T.
So, I lost my Mercedes Benz for only P40T, meron pa
akong utang na P60T. My golly. Sobra naman ang
pagka-alkansi ko niyan. So, I can request for a resale.
So, shockingly inadequate.
Sec. 26. Certificate of sale
where property claimed by third person. - When
a property sold by virtue of a writ of execution
has been claimed by a third person, the
certificate of sale to be issued by the sheriff
pursuant to sections 23, 24 and 25 of this Rule
shall make express mention of the existence of
such third-party claim. (28a)
There is nothing complicated there.
Sec. 27. Who may redeem
real property so sold. - Real property sold as
provided in the last preceding section, or any
part thereof sold separately, may be redeemed
in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his
successor in interest in the whole or any part of
the property;
(b) A creditor having a lien by
virtue of an attachment, judgment or mortgage
on the property sold, or on some part thereof,
subsequent to the lien under which the property
was sold. Such redeeming creditor is termed a
redemptioner. (29a)
Q: This is an important section. Who are entitled to redeem
real property?
A: The law says there are 2: (1) judgment obligor or his
successor in interest and (2) the redemptioner.
Q: Define a redemptioner.
A: A redemptioner is defined as a creditor having a lien by
virtue of an attachment, judgment or mortgage on the
property sold, or on some part thereof, subsequent to the
lien under which the property was sold.
Of course, the judgment obligor is the defendant who lost the
case and his property was levied. Or his successor in interest.
Like suppose during the one year period to redeem, namatay
siya, his heirs can exercise the right of redemption because
they will step into his shoes. Successors in interest could also
refer to a person whom the obligor assigned or transferred his
right to redeem.
Q: Can a defendant sell, assign or transfer his right to
another person?
A: Yes. Because the right to redeem is property by itself.
That is my lot. That is my property. My right to redeem is
also property. That is what you call interest over real
property which can be the subject matter of a sale.
Because sometimes, say, my property is worth P2M and is
levied for P1M, malapit ng matapos ang one year, wala pa
rin akong pera, I might lose the property. So, I will find
somebody. Ikaw na muna mag-redeem. I will sell to you
my property for P1.5. I can do that. If I sell to you my right
to redeem, you become my successor in interest.
Sa no. 2, the creditor having a subsequent lien. Let us
try to illustrate. This is related to your study of Land, Titles and
Deeds. Suppose X has 4 creditors and he has properties worth
Page 237 of 296
P10M. Suppose he owes A P2M so A levied X’s property.
Tinatakan. There is another judgment in favor of B. So,
tinatakan ni B. Another P2M. Under the law on Land, Titles
and Deeds, the right of A is superior to the right of B. A has no
obligation to respect the right of B but B is obligated to respect
the rights of A. Assuming there is a third creditor C for another
P2M. Tinatakan din. So, subsequent holder din si C. Tapos, D
another P2M. So, apat na sila. Of course, the right of A is
superior. So A levied on the property. One year to redeem.
Sabi ni X wala nga akong pambayad kay A, kay B pa kaya?
Kung binayaran niya si A, tanggal si A. Pero si B naman ang
No. 1. Ah, bayaan ko na lang yan. Suppose X will not redeem
it from A. so A becomes the owner now after one year. What
happens to B, C and D? Tanggal lahat sila. A has no
obligation to respect their liens. So A acquires the entire
property for only P2M because hindi nga interesado si X.
Siyempre si B interesado. So he pays A para siya na ang no. 1.
Yung utang ni X na P2M binayaran niya kay A. So, P4M na
ang hawak niya. B will now acquire the property. Si C naman,
argabyado. Babayaran din niya si B. Bayaran niya ang P4M.
Same thing with D. He can redeem it from C. Yan ang
tinatawag na mga redemptioners. People who have lien
subsequent. In the case of D, even if he will pay everybody,
hindi pa rin siya lugi because the property is worth P10M. That
is the illustration of redemptioners. They have a personality or
a right to redeem the property from whoever is ahead in order
to protect his lien over the property.
Sec. 28. Time and manner
of, and amounts payable on, successive
redemptions; notice to be given and filed. - The
judgment obligor, or redemptioner, may redeem
the property from the purchaser, at any time
within one (1) year from the date of the
registration of the certificate of sale, by paying
the purchaser the amount of his purchase, with
one per centum per month interest thereon in
addition, up to the time of redemption, together
with the amount of any assessments or taxes
which the purchaser may have paid thereon
after purchase, and interest on such last named
amount at the same rate; and if the purchaser
be also a creditor having a prior lien to that of
the redemptioner, other than the judgment
under which such purchase was made, the
amount of such other lien, with interest.
Property so
redeemed may again be redeemed within sixty
(60) days after the last redemption upon
payment of the sum paid on the last redemption,
with two per centum thereon in addition, and the
amount of any assessments or taxes which the
last redemptioner may have paid thereon after
redemption by him, with interest on such last-
named amount, and in addition, the amount of
any liens held by said last redemptioner prior to
his own, with interest. The property may be
again, and as often as a redemptioner is so
disposed, redeemed from any previous
redemptioner within sixty (60) days after the last
redemption, on paying the sum paid on the last
previous redemption, with two per centum
thereon in addition, and the amounts of any
assessments or taxes which the last previous
redemptioner paid after the redemption thereon,
with interest thereon, and the amount of any
liens held by the last redemptioner prior to his
own, with interest.
Written notice of
any redemption must be given to the officer who
made the sale and a duplicate filed with the
registry of deeds of the place, and if any
assessments or taxes are paid by the
redemptioner or if he has or acquires any lien
other than that upon which the redemption was
made, notice thereof must in like manner be
given to the officer and filed with the registry of
deeds; if such notice be not filed, the property
may be redeemed without paying such
assessments, taxes, or liens. (30a)
Let us illustrate this. X is the judgment obligor. He has
4 creditors A, B, C and D. And all of them obtained a
judgment against him. And all of them levied on the same
property. X is given one year from the registration of the sale
to redeem it from A. Suppose X cannot redeem, B will be the
one to redeem because the first redemptioner and the
judgment obligor have one year from the date of registration.
That is why Sec. 28 says the judgment obligor, or redemptioner.
Meaning, the first redemptioner. B will now redeem from A and
A is out of the sale. B is now no. 1. C naman wants to redeem
the property from B. C is given 60 days. And all other
subsequent redemptioners, 60 days na lang. Hence, the first
redemptioner is always superior. That is the procedure for
redemption of real property which has been the object of
execution.
Q: Suppose X or B would like to redeem the property from
A, how much will the property be redeemed?
A: During the auction sale, it is in the amount of P1M. Then
you have one year to redeem. During that period, the
account is earning 1% a month. Plus taxes pa. So, yung
interest, aabot na yan ng mga P120T. So, i-redeem ni B at
P1.12M. Si C naman will redeem it from B at 2% a month
na.
There are some interesting questions on the rate of
interest. The facts are similar and these cases are talking of
redemption of foreclosure of mortgage or redemption of
execution.
PNB vs. CA
140 SCRA 360
Suppose I will borrow money from the bank
and the stipulated interest is 36% p.a.
During the auction sale, I bid. Principal and
interest. It was sold to me. One year to
redeem. Within one year, you approached
me. I-redeem ko na, sabi mo. O sige, i-
redeem. Magkano ang bid price? P4M
plus interest of 3% per month for the next 8
or 9 months. Pero sabi ng debtor, 1% lang.
That is according to the law. Pero ang
usapan natin is 3% sa promissory note. Who
is correct? Pag-hindi mo alam ito, lolokohin
ka talaga ng bangko. Which will prevail, the
commercial stipulated rate of 3% a month
or the 1% rate under Sec. 28 of Rule 39?
And the SC said: The law prevails.
It is 1% only. The rights of a creditor or
debtor, the bank for example, under the
promissory note or even under a mortgage
contract is only good up to the auction
sale. From the moment the auction sale is
finished and we are even here at the period
of redemption, the law takes over. So, the
rate in the promissory note is no longer
applicable.
Page 238 of 296
The case of PNB was somehow modified by the SC in the
subsequent case of:
SY vs. CA
172 SCRA 125
A borrowed money from the
bank with interest at 3% per
month. He failed to pay so there
was foreclosure of mortgage.
Tapos, execution sale. During the
one year period of redemption,
the question arises: Pila man ang
interest? The debtor said 1%. The
bank said it is 3% as stipulated in
the promissory note. Which would
prevail?
Here the SC said that the
stipulated 3% in the mortgage contract will
prevail. Why? Because of a special law
which is Sec. 78 of the General Banking Act
of RA 337. The SC said: Between Sec. 28 of
Rule 39 and Sec. 78 of RA 337, the latter
prevails because it is a special law. The
General Banking Act partakes of a nature
of an amendment of the mortgage law
insofar as the redemption price is
concerned where the mortgagee or
creditor is a bank or banking or credit
institution. Sec. 6 of the Mortgage Law in
relation to Sec. 28 of Rule 39 of the Rules of
Court is inconsistent with Sec. 78 of RA 337.
I was wondering how come the ruling in these 2
cases were not the same? Maybe hindi nakita ng mga
abogado ng PNB ang General Banking Act. They did not
research well that’s why they failed to cite that provision. So,
mas magaling yung lawyers sa case ni Sy. Matinik. That is the
only explanation I can think of on why the decisions were in
conflict.
Sec. 29. Effect of
redemption by judgment obligor, and a
certificate to be delivered and recorded on
redemption made. - If the judgment obligor
redeems, he must make the same payments as
are required to effect a redemption by a
redemptioner, whereupon, no further
redemption shall be allowed and he is restored
to his estate. The person to whom the
redemption payment is made must execute and
deliver to him a certificate of redemption
acknowledged before a notary public or other
officer authorized to take acknowledgments of
conveyances of real property. Such certificate
must be filed and recorded in the registry of
deeds of the place in which the property is
situated, and the registrar of deeds must note
the record thereof on the margin of the record of
the certificate of sale. The payments mentioned
in this and the last preceding sections may be
made to the purchaser or redemptioner, or for
him to the officer who made the sale. (31a)
Suppose X redeems the property from A. If X
redeems the property from A, the sheriff will execute in favor of
X a certificate of redemption. So, tanggal na yung lien. To
whom should X pay? The law says it may be made directly to
the purchaser or redemptioner or to the officer who made the
sale. There is no 60 days period of redemption when the
judgment obligor himself redeems his property.
Sec. 30. Proof required of
redemptioner. - A redemptioner must produce
to the officer, or person from whom he seeks to
redeem, and serve with his notice to the officer a
copy of the judgment or final order under which
he claims the right to redeem, certified by the
clerk of the court wherein the judgment or final
order is entered; or, if he redeems upon a
mortgage or other lien, a memorandum of the
record thereof, certified by the registrar of
deeds; or an original or certified copy of any
assignment necessary to establish his claim; and
an affidavit executed by him or his agent,
showing the amount then actually due on the
lien. (32a)
When X wants to redeem the property from A, there
is no need for X to prove his right. After all, he is the judgment
debtor. He has the automatic right to redeem. When it is B, C
or D who wants to redeem, he must prove to the sheriff that he
is qualified to redeem. That they are redemptioners. They
must prove their status.
Sec. 31. Manner of using
premises pending redemption; waste restrained.
- Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or
without notice; but it is not waste for a person in
possession of the property at the time of the sale,
or entitled to possession afterwards, during the
period allowed for redemption, to continue to
use it in the same manner in which it was
previously used; or to use it in the ordinary
course of husbandry; or to make the necessary
repairs to buildings thereon while he occupies
the property. (33a)
Q: Suppose X is the debtor. A is the purchaser. During the
one year period to redeem, who is in possession of the
property? The purchaser or the debtor?
A: The debtor. The purchaser cannot take over. He has to
wait for the one year period to expire before he can take
over. Therefore, X continues to occupy the property, he
continues to use it in the same manner as it was previously
used.
Q: Suppose 8 months na. Sabi ni X, wala na akong pag-
asa. Hindi ko na talaga mabayaran si A. So, he cuts all the
trees, destroys all the crops para pag-take over ni A wala
rin siyang mapakinabangan. I think that is also unfair.
What is the remedy of A?
A: He can ask the court for an injunction according to Sec.
31. An injunction to restrain the commission of waste on
the property.
Sec. 32. Rents, earnings
and income of property pending redemption. -
The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and
income of the property sold on execution, or the
value of the use and occupation thereof when
such property is in the possession of a tenant. All
rents, earnings and income derived from the
property pending redemption shall belong to the
judgment obligor until the expiration of his
period of redemption. (34a)
This is a continuation of Sec. 31. My property was sold
at execution in your favor. But my property earns an income. I
have tenants paying their rentals.
Page 239 of 296

Q: During the one year period, who will get the rentals?
The highest bidder (purchaser) or the debtor?
A: The debtor continues to receive the earnings.
There has been an amendment here by the law.
Under the old rules, during the one year period to redeem the
debtor (defendant) continues to get the income of the
property but the creditor may tell the court: Ang income akin
na. That was allowed before. But everything is deductible
also from the redemption price. So, he can insist that the
income be turned over to him but deductible from the
redemption price. Ngayon, wala na yan. The debtor is the
one enjoying the income of the property levied.
Sec. 33. Deed of
possession to be given at expiration of
redemption period; by whom executed or given.
- If no redemption be made within one (1) year
from the date of the registration of the certificate
of sale, the purchaser is entitled to a
conveyance and possession of the property; or,
if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time for
redemption has expired, the last redemptioner is
entitled to the conveyance and possession; but
in all cases the judgment obligor shall have the
entire period of one (1) year from the date of the
registration of the sale to redeem the property.
The deed shall be executed by the officer
making the sale or by his successor in office,
and in the latter case shall have the same
validity as though the officer making the sale
had continued in office and executed it.
Upon the
expiration of the right of redemption, the
purchaser or redemptioner shall be substituted
to and acquire all the rights, title, interest and
claim of the judgment obligor to the property as
of the time of the levy. The possession of the
property shall be given to the purchaser or last
redemptioner by the same officer unless a third
party is actually holding the property adversely
to the judgment obligor. (35a)
The period to redeem expired. No redemption. A is
the highest bidder. The sheriff will now execute what is called
a final deed of sale or deed of conveyance. So, remember
that the sheriff actually executes 2 documents here. After the
auction sale, he will execute in your favor, the certificate of
sale as mentioned in Sec. 25. You register that. From the time
you register that, you start counting the one year period. One
year expired, no redemption. Another document is executed
which is called final deed of sale under Sec. 33.
Q: Which of the two transfers ownership to the purchaser?
A: It is the second document which is the final deed of sale
or deed of conveyance.
The certificate of sale does not transfer ownership of the
land to the purchaser. It simply certifies that you are the
highest bidder, this is the amount that you paid, you have it
registered and that the debtor has one year to redeem
said property.
So, do not confuse the 2 instruments. That is the same thing
with mortgage. Yung extra-judicial foreclosure. Although sa
extra-judicial foreclosure, hindi na kailangan ng deed of sale.
Only affidavit of consolidation is needed under the mortgage
law.
GOMEZ vs. GEALOLE
203 SCRA 474
The property of the judgment
obligor was levied. Sold at public auction.
One year to redeem, no redemption. Next
step is final deed of sale. Eto ngayon yung
debtor: Everything is void because the
property is exempt from execution. And it
really turned out that the property was
exempt. Of course, the debtor has always
the right to question the execution because
the property levied was exempt under the
law. So, the question was: Is there a
deadline for a judgment debtor to claim
exemption from execution of his property?
Can he do that for the first time upon the
expiration of the one year period?
The SC noted that the rules are
silent. The SC said: Although the rules of
court do not prescribe the period within
which to claim the exemption the rules
nevertheless are settled that the right of
exemption must be claimed by the debtor
at the time of the levy or within a
reasonable period thereafter.
Reasonable time for the purpose
of the law on exemption does not mean the
time after the expiration of the one year
period for judgment obligor to redeem the
property. That is too much. Otherwise, it
would render nugatory the title deed of sale
of execution and defeat the very purpose
of execution to put an end to litigation. We
now rule that claims for exemption for
execution of properties under Sec. 13 must
be presented before its sale or execution of
sale. Meaning, before the auction sale.
Sec. 34. Recovery of price if sale not
effective; revival or judgment. - If the purchaser
of real property sold on execution, or his
successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in
consequence of irregularities in the proceedings
concerning the sale, or because the judgment
has been reversed or set aside, or because the
property sold was exempt from execution, or
because a third person has vindicated his claim
to the property, he may on motion in the same
action or in a separate action recover from the
judgment obligee the price paid, with interest or
so much thereof as has not been delivered to
the judgment obligor; or he may, on motion,
have the original judgment revived in his name
for the whole price with interest, or so much
thereof as has been delivered to the judgment
obligor. The judgment so revived shall have the
same force and effect as an original judgment
would have as of the date of the revival and no
more. (36a)
Q: Suppose I am the highest bidder. Yung property may
third-party claim which turned out to be valid. So, the
property is removed from me. Paano ako?
A: Bawiin mo sa obligee or kung gusto mo, you have the
judgment revived in your name and you look for other
properties of the obligor.
You are a victim because of an irregularity in the
procedure or the judgment has been reversed on appeal.
Or that the property sold was exempt from execution. Or a
third person has validated his claim.
Page 240 of 296
 So, your remedy is to recover the money from the obligee,
assuming that the obligee is different from the purchaser.
Or, ask that the judgment be revived in your name which is
taking the place of the obligor and levy. Hahabol ka na
lang sa ibang properties ng debtor.
Sec. 35. Right to
contribution or reimbursement. - When property
liable to an execution against several persons is
sold thereon, and more than a due proportion of
the judgment is satisfied out of the proceeds of
the sale of the property of one of them, or one of
them pays, without a sale, more than his
proportion, he may compel a contribution from
the others; and when a judgment is upon an
obligation of one of them, as security for
another, and the surety pays the amount, or any
part thereof, either by sale of his property or
before sale, he may compel repayment from
the principal. (37a)
This is more of obligations and contracts. Suppose
there are 3 solidary debtors and one debtor was compelled to
pay everything. He can of course ask for reimbursement from
his co-solidary debtors. Or the surety was made to pay the
loan, he can also claim reimbursement from the principal
debtor. This applies when the person sued is the surety.
Remedies in aid of execution
One of the most difficult areas of execution is that
rarely can you find a losing party who will voluntarily comply
with a judgment. In most cases, you really have to compel
payment by levying on his property. But this is where more
difficulty lies. Some people would go to the extent of trying to
defeat the execution by hiding their properties. Very common
yan. Simulated transactions. It is when they would try to make
it appear that you have no more property by transferring your
assets to the name of somebody else so that when the sheriff
tries to take your property they can’t find anything. You
cannot find a single asset in his name. He owns a house, it is
not in his name. He drives a car, it is not in his name. And that
is part of the game. That is one of the difficulty in execution.
Now, the rules of court has devised certain
procedures at least to help the winning party realize his victory.
These are measures intended to foil or thwart any attempt by
defendant to evade compliance with the judgment. We can
briefly call these remedies under the rules as Remedies in Aid
of Execution. These remedies are found in Sections 36 to 43 of
Rule 39. The most famous of these remedies are the first two,
Secs. 36 and 37.
Sec. 36. Examination of
judgment obligor when judgment unsatisfied. -
When the return of a writ of execution issued
against property of a judgment obligor, or any
one of several obligors in the same judgment,
shows that the judgment remains unsatisfied, in
whole or in part, the judgment obligee, at any
time after such return is made, shall be entitled
to an order from the court which rendered the
said judgment, requiring such judgment obligor
to appear and be examined concerning his
property and income before such court or
before a commissioner appointed by it, at a
specified time and place; and proceedings may
thereupon be had for the application of the
property and income of the judgment obligor
towards the satisfaction of the judgment. But no
judgment obligor shall be so required to appear
before a court or commissioner outside the
province or city in which such obligor resides or
is found. (38a)
So, briefly, if execution is unsatisfied, meaning, the
sheriff cannot find any property to satisfy the judgment, the
plaintiff or winning party may cause the examination of the
judgment obligor as to his property and income.
Q: How is it done? You have no property, paano ka
nabubuhay? It seems that you are living comfortably, you
support a family, your children go to school, you live a
normal and a comfortable life and yet there is no record of
income, there is something wrong. So what will you do?
A: You file a motion in court asking for the examination of
the judgment obligor. And the court will issue an order
requiring the judgment obligor to appear in court for
questioning. So you place him on the witness stand and
the creditor will start asking questions. How much is your
overhead a month? How much do you spend for your
children’s tuition? How much do you spend for food,
clothing and shelter? Where do you get your income? In
other words, you try to catch him in his statement.
Somehow, there might be an admission of where his
properties are hidden. So, more or less, that is the
application of Sec. 36.
Q: Does this procedure sound familiar to you where you
call an opposite party and start to question him hoping
that in the course of questioning you will be able to catch
something?
A: Deposition, di ba? Modes of discovery found in Rule 23
regarding claims or defenses before trial. In effect, Sec. 36
is related to that. It is actually a mode of discovery but it is
already after trial or after the decision is rendered. But the
purpose is the same.
Sec. 37. Examination of
obligor of judgment obligor. - When the return of
a writ of execution against the property of a
judgment obligor shows that the judgment
remains unsatisfied, in whole or in part, and
upon proof to the satisfaction of the court which
issued the writ, that a person, corporation, or
other juridical entity has property of such
judgment obligor or is indebted to him, the court
may, by an order, require such person,
corporation, or other juridical entity, or any
officer or member thereof, to appear before the
court or a commissioner appointed by it, at a
time and place within the province or city where
such debtor resides or is found, and be
examined concerning the same. The service of
the order shall bind all credits due the judgment
obligor and all money and property of the
judgment obligor in the possession or in the
control of such person, corporation, or juridical
entity from the time of service; and the court
may also require notice of such proceedings to
be given to any party to the action in such
manner as it may deem proper. (39a)
This time it is examination of obligor of judgment
obligor. I have a judgment against A. Walang assets si A. But
I have been hearing stories that he has some collectibles from
B and C but I am not sure. This time, I will ask the court to
subpoena B and C. Then, under oath, I will ask them questions.
Is it true that you owe A? Presumably, they will tell the truth.
So, i-garnish mo na. So, this time, the person to be examined is
not the defendant but people who are indebted to him.
Again, it is similar to a mode of discovery but it trying to get
information from a 3rd person.
Sec. 38. Enforcement of
attendance and conduct of examination. - A
party or other person may be compelled, by an
order or subpoena, to attend before the court or
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 commissioner to testify as provided in the two
preceding sections, and upon failure to obey
such order or subpoena or to be sworn, or to
answer as a witness or to subscribe his
deposition, may be punished for contempt as in
other cases. Examinations shall not be unduly
prolonged, but the proceedings may be
adjourned from time to time, until they are
completed. If the examination is before a
commissioner, he must take it in writing and
certify it to the court. All examinations and
answers before a court or commissioner must be
under oath, and when a corporation or other
juridical entity answers, it must be on the oath of
an authorized officer or agent thereof. (40a)
This is a continuation of the first 2 sections. That is self
explanatory.
Sec. 39. Obligor may pay
execution against obligee. - After a writ of
execution against property has been issued, a
person indebted to the judgment obligor may
pay to the sheriff holding the writ of execution
the amount of his debt or so much thereof as
may be necessary to satisfy the judgment, in the
manner prescribed in section 9 of this Rule, and
the sheriff’s receipt shall be a sufficient
discharge for the amount so paid or directed to
be credited by the judgment obligee on the
execution. (41a)
I owe A. But I heard that there is a judgment against
A in favor of B. Instead of paying A, I will pay B and the sheriff
will issue a receipt. Is that a valid payment? Yes, that is similar
to the effect of garnishment.
Sec. 40. Order for
application of property and income to
satisfaction of judgment. - The court may order
any property of the judgment obligor, or money
due him, not exempt from execution, in the
hands of either himself or another person, or of a
corporation or other juridical entity, to be
applied to the satisfaction of the judgment,
subject to any prior rights over such property.
If, upon
investigation of his current income and
expenses, it appears that the earnings of the
judgment obligor for his personal services are
more than necessary for the support of his
family, the court may order that he pay the
judgment in fixed monthly installments, and
upon his failure to pay any such installment
when due without good excuse, may punish him
for indirect contempt. (42a)
The court may order the judgment obligor or
somebody who has money in his hands owned by him to be
applied as satisfaction of a judgment. If, upon investigation of
his current income and expenses, it appears that the earnings
of the judgment obligor for his personal services are more than
necessary for the support of his family, the court may order
that he pay the judgment in fixed monthly installments xxx. This
is related to Sec. 13, par. (i), properties exempt from
execution:
(i) So much of the salaries,
wages, or earnings of the judgment obligor for
his personal services within the four months
preceding the levy as are necessary for the
support of his family;
Normally, you cannot levy on the earnings of a
person which he needs for support of his family. Actually, it is
not the entire earnings. So much of the earnings xxx. Because
if you’re earning a lot, it is more than sufficient for your family.
The court will say: Since you are earning P15T a month, yung
P5T will be garnished every month. That is also possible under
Sec. 40.
Sec. 41. Appointment of
receiver. - The court may appoint a receiver of
the property of the judgment obligor; and it may
also forbid a transfer or other disposition of, or
any interference with, the property of the
judgment obligor not exempt from execution.
(43a)
The remedy of receivership is found in Rule 59 in the
study of Provisional Remedies. A receiver under the rules is a
person appointed by the court to hold or manage property of
a litigant while there is litigation. In other words, the purpose of
receivership is to preserve the property by placing it in the
hands of the court to remove it from the control of a party.
Because a party may dispose of the property. So the court
can appoint a receiver to take over the property of the
defendant until the judgment against him is satisfied. That is
what a receivership is all about.
Sec. 42. Sale of ascertainable
interest of judgment obligor in real estate. - If it
appears that the judgment obligor has an
interest in real estate in the place in which
proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein
can be ascertained without controversy, the
receiver may be ordered to sell and convey
such real estate or the interest of the obligor
therein; and such sale shall be conducted in all
respects in the same manner as in provided for
the sale of real estate upon execution and the
proceedings thereon shall be approved by the
court before the execution of the deed. (44a)
Suppose the court determines that you have an
interest over a property. Any kind of interest. Mortgagee,
mortgagor or usufructuary. Then the court can order your
interest to be sold at public auction. This time, it is not the
property which is sold but your interest. If your interest can be
determined without controversy. Walang away ba. That you
are, say, a mortgagor of a piece of land. Your right as a
mortgagee will be sold. Suppose there is a controversy.
Whether you have an interest or you have none is in
controversy. Your remedy is Sec. 43.
Sec. 43. Proceedings when
indebtedness denied or another person claims
the property. - If it appears that a person or
corporation, alleged to have property of the
judgment obligor or to be indebted to him,
claims an interest in the property adverse to him
or denies the debt, the court may authorize, by
an order made to that effect, the judgment
obligee to institute an action against such
person or corporation for the recovery of such
interest or debt, forbid a transfer or other
disposition of such interest or debt within one
hundred twenty (120) days from notice of the
order, and may punish disobedience of such
order as for contempt. Such order may be
modified or vacated at any time by the court
which issued it, or by the court in which the
action is brought, upon such terms as may be
just. (45a)
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 There is a piece of land occupied by X which is
actually mine. I can file a case anytime to recover the land.
However, you filed a case against me and I lost the case. And
I have no other property. Do you mean to tell me I will still run
against X to recover the property? Why will I do it? Kahit
makuha ko yan mapunta pa rin sa iyo, eh. I will lose interest.
Why will I exert effort to recover the property when in reality
after I gain it, it will still go to you because I owe you money?
Ikaw na ngayon ang maghabol niyan. And the court will
authorize you. Ayaw niyang mag-file, sige, ikaw ang mag-file.
You will step into my shoes to recover the property from X. The
court will authorize you to file a case in my behalf. So, you
become a representative party defined in Rule 3.
Sec. 3. Representatives as parties.
- Where the action is allowed to be prosecuted
or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and
shall be deemed to be the real party in interest.
A representative may be a trustee of an express
trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules x x x.
Q: Give an example of a representative party authorized
by these rules to file a case in behalf of the real
beneficiary.
A: Sec. 43, Rule 39 where an unpaid creditor who has a
judgment can be authorized to file case in behalf of the
judgment obligor who does not want to file the case to
recover his interest over the property.
Now, we are through with the topic on remedies in
aid of execution. In most bar exams, the questions deal mostly
on the first two. As a matter of fact, I asked the fourth year this
problem: A corporation obtained a judgment for P5M against
X. Upon execution, the sheriff came back. I cannot find any
property of X to levy. However, after a while, the corporation
contacted its lawyer. How is that possible? X lives at the
Insular Village. He drives around in an expensive car together
with his children. His children study in exclusive private schools
in Davao City. X goes to the casino, disco every night and
spends a lot of money. How come wala siyang property? Do
something about this. My question there was: If you are the
lawyer of the corporation, what steps will you take to satisfy
the wishes of your client so you can possibly determine how X
has been able to finance his lavish lifestyle and yet there is not
a single asset in his name. Explain.
Answer: I will have X subpoenaed under Sec. 36 and
ask him questions. Who is the registered owner of this car?
How come he is using the car when it is not owned by him? I
will also ask the registered owner of the car. The owner of the
house where he lives under Sec. 37. Or examination of the
debtor of the obligor. And based on these, if I can now
determine his assets, I will now move to execute. Meaning, the
problem calls for the application of the provisions for remedies
in aid of execution.
Satisfaction of judgment vs. Execution of judgment
Sec. 44. Entry of
satisfaction of judgment by clerk of court. -
Satisfaction of a judgment shall be entered by
the clerk of court in the court docket, and in the
execution book, upon the return of a writ of
execution showing the full satisfaction of the
judgment, or upon the filing of an admission to
the satisfaction of the judgment executed and
acknowledged in the same manner as a
conveyance of real property by the judgment
obligee or by his counsel unless a revocation of
his authority is filed, or upon the endorsement of
such admission by the judgment obligee or his
counsel on the face of the record of the
judgment. (46a)
Sec. 45. Entry of
satisfaction with or without admission. -
Whenever a judgment is satisfied in fact, or
otherwise than upon an execution, on demand
of the judgment obligor, the judgment obligee
or his counsel must execute and acknowledge,
or indorse, an admission of the satisfaction as
provided in the last preceding section, and after
notice and upon motion the court may order
either the judgment obligee or his counsel to do
so, or may order the entry of satisfaction to be
made without such admission. (47a)
Q: What is the definition of satisfaction of judgment?
A: It means compliance with or fulfillment of the mandate
of a judgment. Like when you are ordered to pay. You
pay.
Now, satisfaction of judgment is not the same as execution
of judgment.
Execution of judgment Satisfaction of judgment
method for enforcement compliance with or
of the judgment. fulfillment of the mandate
of a judgment.
Normally, execution precedes satisfaction. But you can satisfy
a judgment without execution by simply paying voluntarily.
And normally, when the judgment is satisfied, it has to be
recorded. That is why the method of recording in satisfaction
is found in Secs. 44 and 45. Either the sheriff himself will record,
fully satisfied. Or, the creditor will file an admission that the
judgment is fully satisfied. Or, the debtor on motion will ask
that it be recorded that he has already paid. That is how
satisfaction of judgment is recorded under Secs. 44 and 45.
Q: We will now go to an important question. Suppose you
win a case. Can you compel satisfaction of judgment and
at the same time appeal from said judgment? Can you do
both?
A: The traditional rule there is NO because that would be
an inconsistent position. When you appeal, you do not
agree with the judgment. When you ask for satisfaction,
you agree with the judgment. How can you disagree and
agree at the same time? This principle was laid down in
some cases. The traditional rule is that the party who
compels satisfaction of judgment admits the correctness of
the judgment and is therefore estopped from making an
appeal from the said judgment.
However, that rule has somehow been modified by
the SC in the case of:
VITAL-GOZON vs. CA
212 SCRA 235
Is a judgment creditor estopped
from appealing or seeking modification of a
judgment which has been executed at his
instance? And the SC modified its previous
ruling.
The court said: It depends upon
the nature of the judgment as being
indivisible or not. If the judgment is
indivisible, acceptance of full satisfaction of
the judgment annihilates the rights of further
prosecution to appeal. Even partial
satisfaction at the instance of the prevailing
party places said party in estoppel to ask
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 that the judgment be amended. So, if the
judgment is indivisible, you cannot execute
at the same time appeal. This would be
two inconsistent postures. On the other
hand, when the judgment is divisible,
estoppel should not operate against the
judgment creditor who causes
implementation of a part of a decision by
writ of execution. The principle is fully
consistent with logic and common sense.
Acceptance of payment of only the
uncontroverted part of the claim should not
preclude the plaintiff from prosecuting his
appeal to determine whether he should not
may have been allowed for.
Q: Give an example of divisible judgments.
A: Where there are many claims. There are many causes
of action in the same decision. I am satisfied with your
decision in one cause of action. I am not satisfied with the
decision on the other part. I can appeal from this part and
accept correctness on one part. So, there is nothing wrong
there.
There was a problem I met last year on this. A filed a
case against B for damages. The claim of A is P1M. After trial,
the court awarded A damages of only P300T. So, A was not
satisfied because he believed that it should be P1M. On the
other hand, the defendant is satisfied. So, he did not appeal.
Ibig sabihin, the defendant is accepting his liability for P300T.
So, si A nag-appeal. Can he ask for satisfaction in the
meantime for P300T because anyway, the other party has not
appealed? I said yes. Because the liability of the defendant
for P300T is already settled. Wala ng away doon. he is already
accepting. So, there is no inconsistency here.
Sec. 46. When principal bound
by judgment against surety. - When a judgment
is rendered against a party who stands as surety
for another, the latter is also bound from the time
that he has notice of the action or proceedings,
and an opportunity at the surety’s request to join
in the defense. (48a)
This is more on Obligations and Contracts. When
there is a judgment against the surety, the principal debtor is
also bound by the judgment from the time he has notice of
the action or proceeding and an opportunity at the surety’s
request to join in the defense. Because the surety is only liable
legally but the real party liable is the debtor.
RES JUDICATA
The last very important provision in this rule is Sec. 47.
Q:What is the difference between res judicata and res
judicata?
Sec. 47. Effect of judgments or
final orders. - The effect of a judgment or final
order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or
final order, may be as follows:
(a) In case of a judgment or
final order against a specific thing or in respect
to the probate of a will, or the administration of
the estate of a deceased person, or in respect to
the personal, political, or legal condition or
status of a particular person or his relationship to
another, the judgment or final order is
conclusive upon the title to the thing, the will or
administration, or the condition, status or
relationship of the person; however, the probate
of a will or granting of letters of administration
shall only be prima facie evidence of the death
of the testator or intestate;
(b) In other cases, the
judgment or final order is with respect to the
matter directly adjudged or as to any other
matter that could have been raised in relation
thereto, 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;
and
(c) In any other litigation
between the same parties or their successors in
interest, that only is deemed to have been
adjudged in a former judgment or final order
which appear upon its fact to have been so
adjudged, or which was actually and
necessarily included therein or necessary
thereto. (49a)
Q: What is this section all about?
A: The effect of judgments or final orders. This is the
principle of res judicata. You’ve been hearing this term
since you were in first year. Once a matter has already
been decided, that’s is the end of it. Hindi na puwedeng
ulitin. That is more of a consequence of splitting a cause of
action, remember? That when you split your cause of
action, the pendency of one case can be invoked as a
ground to dismiss the other. And a judgment in one case is
also a ground for dismissal of the other. Then in Rule 16, we
learned that one of the grounds for a motion to dismiss is
when the action is barred by prior judgment. Yan ang
tinatawag na res judicata.
Q: You may have been wondering saan ba yan makikita
ang res judicata? Is that a provision of the civil code or the
constitution?
A: The principle of res judicata is found in the Rules of
Court, Sec. 47 of Rule 39. That is the doctrine of res
judicata, pars. (a), (b) and (c).
Par. (a) is the application of res judicata to judgments in
rem whereas, pars. (b) and (c) is the principle of res
judicata as applied to judgments in personam.
You look at par. (a) judgment or final order against a
specific thing or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to another.
These are what we call actions in rem or at least quasi in
rem. That’s why in par. (b), it says in other cases. What
other cases? Actions in personam.
A: Wala. They mean the same. This principle is known
through out the world although it may be called by
another name. In the Philippines, which is influenced by
Roman Law and Spanish Law, we call it the doctrine of res
judicata or res judicata. In Anglo-American Law, it is called
the doctrine of estoppel by judgment.
SALUD vs. CA
233 SCRA 384
The SC said: The rules of res
judicata are of long known origin
and they initially evolve from court
decisions. It is now considered a
principle of universal jurisprudence
forming a part of the legal system
of all civilized nations. What is the
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 foundation of the philosophy
behind res judicata? And the SC
said: It rests on the principle that
parties ought not to be permitted
to litigate the same issue more
than once. Where a right has been
judicially tried and determined by
a court of competent jurisdiction
or opportunity for such trial has
been given, the judgment of the
court should be conclusive upon
the parties and those in privity to
them. Like their successors-in-
interest. Otherwise, without this
principle, litigation should become
interminable. Rights of parties
would be involved in endless
confusion. Courts would be
stripped of their most efficient
powers and the most important
function of government that of
ascertaining and enforcing rights
would go unfulfilled.
Can you imagine A and B during their lifetime fought
in court on the ownership of a piece of land and after trial, A
won and the judgment became final. So, tapos na yan. Then,
after they die, the heirs of A inherited the said land. The
children of B now filed another case against the children of A.
Can you imagine that? Lain na pud ni. Fight na pud ta. My
golly. Walang katapusan ang kaso. Without the principle of
res judicata, cases can be reopened forever. Kung sa criminal
case, double jeopardy na yan. That is the end. That is the
counterpart of res judicata.
Requisites of res judicata
We will now discuss the elements or the requisites of
res judicata. One thing to remember here is that there are two
cases, a previous case and a present case. You can have the
second case dismissed because of the result of first case. That
is what res judicata is all about. There is nothing wrong to have
2 or more cases between the same parties. That happens
several times provided they are different. Their causes of
action are not identical. So, sometimes it is easy to detect the
presence of res judicata. Sometimes it is difficult. So, you must
remember what are the elements of res judicata in order to
find out whether the judgment in the first action will now bar
the filing of the second action.
Q: So, what are the elements or requisites of res judicata?
A: The following are the requisites for the application of res
judicata:
1. The judgment or order
invoked as res judicata must be
final;
2. The court rendering the
same must have jurisdiction of
the subject matter and of the
parties;
3. The judgment or order
must be upon the merits; and
finally
4. There must be between
the 2 cases identity of parties,
identity of subject matter and
identity of causes of action.
These requisites sound familiar because these are
also the requisites of litis pendencia. Because these 2 are
related to each other. They are both effects of splitting a
cause of action. The difference is, in litis pendencia, the first
action is still pending. In res judicata, the first action has
already been decided and the decision has already become
final.
So, for example, A files a case against B. A won. B
appealed. When the appeal is pending, A filed the same
case against B. What is the ground for dismissal of second
action? Litis pendencia because the case is still pending. May
appeal, eh. Even if there is already a decision, the first
requisite is missing because the judgment must have already
been final.
Q: So, what do mean by the judgment or order invoked as res
judicata must be final?
A: Final and already executory which is beyond the power
of any court to change. The first case is deemed final and
executory wh en the 15 days have lapsed and there was
no appeal.
Q: When did the first judgment become final? Before the
filing of the second action or after the filing the second
action? Meaning, it became final and then the second
action is filed. Or, the second action is filed and
afterwards, it became final. Which is which?
This was answered by the SC in the case of:
VALIANCA vs. CA
173 SCRA 482
Either situation will do for as long as at the
time it was invoked, the first judgment has
become final.
The second requisite: (2) The court rendering the
same must have jurisdiction of the subject matter and of the
parties. Translation: The first judgment or order must be valid.
Because if the court never acquired jurisdiction over the
subject matter or over the parties in the first case even if there
was a judgment or order which became final, it is null and
void. So, that is another way of saying it.
Q: Suppose the first judgment is voidable. Does the principle
of res judicata apply?
A: Yes, because the judgment is still valid until it is annulled.
Remember the case we cited when we were in Rule 17, the
case of Republic Planters Bank vs. Molina where a case was
filed by RPB against the defendant and the defendant cannot
be summoned. The case was dismissed for failure to
prosecute. And the order became final. Later on, the same
case was revived and the defendant invoked res judicata.
Because according to the defendant, when the first case
against me was dismissed for failure to prosecute, that
dismissal has the effect of res judicata under Rule 17, Sec. 3.
The court said no because since you were never summoned in
the first case, the court never acquired jurisdiction over your
person. So, how can the court acquire jurisdiction over your
person? That is the second missing element.
The third requisite: (3) The judgment or order must be
upon the merits. A judgment is on the merits if it is one which
finally settles the issues raised in the pleadings. If it is not one
raised in the pleadings, then it is not meritorious.
Example: A filed a case against B. B moved to dismiss on the
ground of improper venue. The court dismissed the case. The
order of dismissal became final. So, A refiled the case in the
correct venue. When A filed the case in the correct venue, B
again moved to dismiss on the ground of res judicata because
the first case that A filed against B was dismissed and the order
of dismissal became final. Is B correct?
He is wrong because when the court dismissed the
first case, the court never determined who is correct, whether
the cause of action was valid or not. It was dismissed because
of technicality. It was dismissed because it was filed in the
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wrong place. So, the first dismissal is not res judicata because
it is not upon the merits. Normally, when you say a judgment
or order is upon the merits, is that there was trial. There was a
trial where the parties were heard. That evidences were
presented. That’s the same thing with double jeopardy.
Normally, an accused can invoke double jeopardy if he was
acquitted or convicted. So, there was a trial. The first case
was terminated generally without trial, that could be double
jeopardy. That’s the general rule. That is the same thing in civil
cases. If the first action was dismissed without the court trying
the case, that dismissal is not on the merits. Therefore, you
cannot invoke res judicata.
Exception
There is only one exception. Where the case is
dismissed without trial but the dismissal is considered as on the
merits. Ano yun? Rule 17, Sec. 3. Where the plaintiff failed to
appear during the presentation of his evidence in chief, or
failed to prosecute for an unreasonable length of time, or
failed to comply with the rules or order of the court, the court
may dismiss the action. Such dismissal shall have the effect of
an adjudication upon the merits unless the court provides
otherwise. You noticed? Actually there is a trial there. Why
was the case dismissed? Because the plaintiff failed to
appear. Or he failed to comply with the rules of court. That is
the exception where there is no trial but there is res judicata.
So, remember all those basic principles.
The fourth requisite: (4) There must be between the 2
cases identity of parties, identity of subject matter and identity
of causes of action. So, the parties are identical.
Q: Now, what do you mean by identity of parties?
A: Well, it could be literal. The parties in the second action
are the same in the first action. That is literal. A versus B.
But it could also be when the parties in the second action
are successors interest of the parties in the first action such
as heirs. That’s why in the example, the case between A
and B. When they died, the heirs of B filed another case
against the heirs of A. Literally, the parties are not the
same. They were the parents in the first case. Now, they
are the children. The parties are identical because the
parties in the second case are the heirs who only derive
their rights from the parties in the first case. So, that
element is still present.
Another example of identical parties was the ruling in
the case of:
DELFIN vs. INCIONG
192 SCRA 151
Now, the case of Delfin vs. Inciong
was a labor case. Another principle here is
that the principle of res judicata, also
applies to administrative cases no? Do not
believe that res judicata only applies to
cases filed in court. Even in labor cases, the
principle of res judicata applies to all cases,
in all tribunals, whether judicial or
administrative. In the case of Delfin vs.
Inciong, a labor union filed a case against
the company for unfair labor practice.
Have you taken that up, wala pa? Unfair
labor practice, that’s Labor Relations, ULB,
Book IV or Book V of the Labor Code. Now,
the case was dismissed. When the case was
dismissed, the employees filed another ULB
charge against the company. The same,
the same charge. The company pleaded
res judicata. But the complainants claim:
“No, the parties are not identical. In the first
case, it was the Union which filed the case.
In the second case, we are the ones filing
the case. Are they correct?
The Supreme Court said, “You are
wrong. Because when the Union filed the
case, it was not filing the case on its behalf,
it was also on your behalf. So, in other
words, why is the Union filing the case? That
is for your benefit. So, in effect, the parties
are identical. So, the Court said the case of
Delfin, while it is true that the complainant
in the first charge was the Union, in reality, it
had no interest in the outcome of the case.
The real party who are to be benefited of
the case brought in the name of the Union
are the Union members. Since the judgment
therein had become final and executory,
the subsequent filing of another ULB charge
against the employer for the same violations
committed during his existence, is barred by
res judicata. The bringing of the same
action, in the name of the individual
members of the Union will not take out the
case from the ambit of the principle of res
judicata. Very clear no? Same parties.
Q: Identity of subject matter. What do you mean by that?
When is there identity of subject matter between two
cases?
A: The Court said, there is identity of subject matter if in the
second case, the same thing is involved or included in that
involved in the first case. The thing involved in the second
case is the same thing involved or what is involved in the
second is already included in what was involved in the first.
Example: A filed a case against B to recover a 10-hectare
property. A lost the case. The complaint was dismissed. Later
on, A filed a case to recover one hectare na lang. Instead of
10 isa na lang. Now, sabi ni B res judicata. Wala, noon 10,
ngayon isa na lang. That one is part of the ten. In other words,
the subject matter in the second case is already involved in
the first case. That’s an example. Another instance, A filed a
case against B to recover a piece of land. A lost. Refiled.
Value na lang. I will recover the value of the land. And the
court said, there is res judicata. You are only changing the
subject matter. Recovery of land. Value of the land. It is still the
same thing. There is res judicata. So, yan ang tinatawag na
same subject matter.
Q: And the third is identity of causes of action. When is there
identity of causes of action?
A: When the two causes of action are based on the same
delict or wrong committed by the defendant even if the
remedies be different. This is one of the hardest. The same
delict or wrong. Although you might change remedies.
Because there are some difficult situations na hindi mo
malaman, whether the cause of action is the same or not
the same. There are lawyers who are very good at
camouflaging. They will camouflage the cause of action
by changing the remedy. The remedy is changed, and
they will add another additional party. Iba na naman ito.
And sometimes it is very hard to detect although the
principle is same. The Court said you cannot avoid the
principle of res judicata by camouflaging your cause of
action.
The SC has given tests to determine whether the
cause of action is the same or not. When do you determine
whether the cause of action in the first or second action is the
same? One test was given in the case of:
ANGELA ESTATE vs. BACOLOD MILLING CO.
144 SCRA 482
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 The SC said: Res judicata cannot
be applied where even though between
two cases there is identity of parties, of
subject matter and relief prayed for, the
evidence adduced to sustain the cause of
action in the first case is not enough to
sustain the second case. Same parties,
same subject matter. But the evidence
which was sufficient to prove the first case is
not sufficient to prove the second case. It
must be a different cause of action. How
come the evidence is sufficient to prove the
first action but it is not sufficient in the
second. It should be sufficient to both.
VALENCIA vs. RTC of QUEZON CITY BR. 19
184 SCRA
The Court said, one test of identity
of cause of action, is whether or not the
judgment sought in a subsequent case will
be inconsistent with the prior judgment. The
cause of action sought, or rather the
judgment sought in a subsequent case will
be inconsistent with the prior judgment.
GUEVARRA vs. BENITO
247 SCRA 570 (1995)
The Court said, the causes of
action cannot be the same if the
cause of action in one case only
arose after the judgment of the
other. Tama no? The cause of
action in one case only arose after
the judgment of the other case.
The principle of res judicata
extends only to the facts and
conditions as they are existent at
the time when the judgment was
rendered. So, if it arose later, it
must be a different cause of
action.
These are judicial guidelines to identify whether the
cause of action is the same or not. Alright. Now, when all
these requisites are present, the general rule is that you can
move to dismiss the second action by citing Section 47, the
principle of res judicata.
Now, are there instances when the principle of res
judicata can be disregarded? Let’s go to some exceptions.
Although, I do not want you to master the exceptions. Master
the general rule. I have to admit, there are some instances
where the SC ignored the doctrine of res judicata although
the elements seem to be present. Yan ang tinatawag na
equity. The case is decided more on the principle of equity
rather than law. There are a few, although they are very rare.
One of them, was the case of:
SUAREZ vs. CA
193 SCRA 183
Let’s try to find out why the SC
here ignored res judicata in favor of
allowing the case to go on. Now, what is this
all about? Alright, this is a case filed by a
mother to recover the custody of her minor
child from her common law husband with
whom she was already separated. So,
hiwalay na sila, but they were not married.
She want to get the custody of her child. So,
the mother filed a petition for habeas
corpus to recover the custody of her child
from her former common law husband.
Later, the mother, Rosemarie, filed a motion
to dismiss the habeas corpus case because
she intended to pursue another remedy.
The remedy of custody of a minor under
Rule 99 of the Rules of Court. Obviously, this
was a wrong move as stated by the SC.
Akala siguro niya, she cannot obtain the
custody of her child by habeas corpus.
Puwede man ba. Habeas corpus is a
remedy for a person, a mother to get the
custody of her child. That’s one of the
remedies. akala niya mali. So, winidraw
niya. Ngayon file siya ng panibago. The trial
court dismissed the habeas corpus case
with prejudice. Thereafter, the mother filed
another case for custody of a minor against
her common law husband. The common
law husband moved to dismiss pleading res
judicata. And all the elements are there. All
the elements of res judicata are present. So,
if you will follow the law, dapat, patay na.
The second case filed by the mother should
be dismissed.
But the Court said, surprisingly, the
principle of res judicata should be
disregarded if its application would involve
the sacrifice of justice to technicality. So,
makita mo diyan it is now a case of justice
versus technicality. The application of the
said principle under the particular facts
would amount to denial of justice and/or
bar to a vindication of a legitimate
grievance. It is worth stating that the
controversy in the instant case is not just an
ordinary suit between parties of a trivial
matter, but a litigation initiated by the
natural mother over the welfare and
custody of her child in which the state has a
paramount interest.
So, you have to look at this. Shall we follow res
adjudicate or is there a higher principle that we can disregard
res judicata? And the SC said, there is a higher principle. This is
a matter where the mother would like to recover her child.
And that is of paramount interest to the state. The
fundamental policy of the state as embodied in the
Constitution, in promoting and protecting the welfare of
children shall not be disregarded by the courts by mere
technicality in resolving disputes which involve the family and
the youth. In other words, the family, the solidarity, the mother
should get the children. That is higher than res judicata. And
the SC said, if we will follow res judicata, it will be amounting a
mother being deprived of her child forever. Shall we allow
that? No, we cannot allow that. Yan and tinatawag na
exceptional cases. Where the SC will ignore a certain principle
in favor of a higher right or principle.
And also in the case of SALUD vs. CA, the SC repeated that
message, where the court said, there should not be a
mechanical and uncaring reliance on res judicata where
more important societal values deserve protection. The
doctrine of res judicata is a rule of justice. It cannot be
immediately applied when it will result to injustice.
Barred by former judgment vs. Conclusiveness of judgment
So, these are interesting pronouncements of SC.
During the last bar examination, one of the questions asked
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was, under the doctrine of res judicata distinguish the concept Now what principle am I invoking? I am invoking the principle
of barred by a former judgment from the concept of of barred by a former judgment. The judgment for recovery of
conclusiveness of judgment. So in effect, the principle of res possession is an obstacle to matters which might have been
judicata is divided into two parts. The concept of barred by a adjudged. Actually, the counterclaim was never brought out
former judgment and the concept of conclusiveness of in the first place, but it is still barred by the principle of barred
judgment. That was asked in the 1997 bar. And based on my by a former judgment. Actually it is based on the same
recollection, that was the second time it was asked in the bar. principle of res judicata.
If I remember right, one day before the exam, one of the
candidates who took the bar approached me and asked me Let’s go further. The best illustration is a promissory
about these two concepts. The following day, lumabas sa bar. note. Say, payable on installments. Installment no. 1 is P100T.
So I will now ask it for the third time sa inyo. The doctrine of res Installment no. 2 is P100T. No acceleration clause. How many
judicata has two concepts. causes of action are there where the performance in the
stipulation is at different times? There are actually two. A filed a
To make it more complicated, the case of Salud vs. CA which I case against B to recover the first installment. Let us say the first
already cited, the SC citing an American book, Federal Rules installment was in 1998, the second is next year. This year no
of Civil Procedure in the US said: the concept of barred by a payment for the first installment. So A filed a case against B.
former judgment is also known in modern terminology as claim Ang depensa ni B, the first installment is paid. After trial, the
preclusion. On the other hand, according to the SC, the court ruled there is no payment. So B you pay. Final. Tapos na
concept of conclusiveness of judgment is also called issue yan. Next year B did not pay the second installment. So A filed
preclusion or collateral estoppel. Mabuti iyong last bar hindi a case against B to recover the second installment. Eto
ginamit iyong new terminologies sa question. At least the terms ngayon ang depensa ni B. He is not liable on the instrument
are familiar. because his signature was a forgery and the second
installment is also paid.
Let’s try to analyze. You read paragraph (a) and (c)
and we will try to find out what distinguishes one from the Let us analyze. Take note that in the first case
other. In the concept of barred by a former judgment, the first involving the promissory note, B did not raise the issue of
judgment is a bar or an obstacle to what matters? If you look forgery. He is only raising it in the second case.
at par b, the first judgment constitutes an absolute bar to all
matters directly adjudged as well as matters that might have Q: Can B still raise forgery in the second case, which never
been adjudged in the first action. If you will look at par c, the raised in the first case?
first judgment is conclusive only on matters actually litigated A: No more. That is a matter that should have been
and adjudged in the first action. But you cannot find or adjudged. Why did you not raise it there. In other words,
matters which might have been adjudged. That is one too late ba! That is barred by a former judgment. Because
distinction. in the first judgment , the court ruled there is no issue. Issue
as to validity. Now you are raising it? Barred.
The second distinction laid down by the SC, in barred Q: Is the defendant barred from raising the defense of
by former judgment, there must be between the two cases payment? Because in the first case, he raised the defense
identity of parties, identity of subject matter and identity of of payment on the first installment. And the court said there
cause of action. In conclusiveness of judgment, there is is no payment on the first installment. Now he is raising
between the two cases identity of the parties, identity of the again the defense of payment on the second installment.
subject matter but there is no identity of cause of action. Meaning, tapos na yan. Meron ng ruling sa first case. Is the
ruling in the first case, that the first installment was not paid
conclusive as to the second installment?
Barred By A Former Conclusiveness Of A: Of course not. Because that is a cause of action in the
Judgment Judgment following year. And take note, the first installment is a
Sec. 47 (b) Sec 47 (c) different cause of action from the second installment.
also known in modern also known as issue
terminology as claim preclusion or collateral
preclusion estoppel. The Doctrine of Conclusiveness of Judgment. The
the first judgment the first judgment is judgment in the first case is only conclusive on matters directly
constitutes an absolute conclusive only on matters adjudged. The issue of the second installment was not yet in
bar to all matters directly actually litigated and existence so it could not be adjudged. So, that is how you
adjudged as well as adjudged in the first action. determine whether the first judgment already affixed the
matters that might have But you cannot find or second judgment. That is conclusiveness of judgment. We will
been adjudged in the matters which might have further illustrate the conclusiveness of judgment in the
first action. been adjudged. interesting case of:
there must be between there is between the two
the two cases identity of cases identity of the
parties, identity of parties, identity of the
subject matter and subject matter but there is CARANDANG vs. BENTURANSA
identity of cause of no identity of cause of 133 SCRA 344
action. action.
Now, this involves a quarrel
between two brothers. We will call them B1
We will try to explain these distinctions individually. In and B2. Magkapatid. Actually, B1, disposed
bar by a former judgment, the first judgment is an obstacle to a property which B2 is questioning because
all matters already adjudged or those that would have been sabi ni B2, bakit napunta sa iyo yan? Sa
adjudged. When we were taking up the concept of tatay naman natin yan, dapat may share
compulsory counter claim we said that a compulsory counter ako diyan. Away, away na sila ba. So, B2
claim not pleaded in the same action is barred. So, I file a has been threatening to file a case against
case against you to recover a piece of land, but you have a B1. So, B1 is worried no? Sabi ni B1, my
claim for reimbursement for the improvements that you brother B2 will file a case against me
placed thereon. Under the law, particularly Rule 9, you are anytime. So, B2 sought the help of his
mandated to file a compulsory counter claim. You fail to do it. kumpare. Sabi niya, Pare, ang brother ko
Then later on you filed another case to recover the value of talagang mag-file yun ng kaso. He will claim
the improvements. You cannot do that. That is barred forever. one-half of this property. And I do not want
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to agree with that set up. What should I do?
I’m seeking your advise. Sabi ni X, very
simple. Pare, why don’t you execute a
deed of sale of your property in my favor?
Meaning, it’s a simulated transaction. And
then, if there will be a case filed against us
for the recovery of the property, I can
always invoke that I’m a buyer in good faith
and for value. I did not know any case or
claim against the property because the title
is very clean. That is Land Titles. You are a
purchaser in good faith and for value. And
sabi ni B2, I think that is a very good idea.
So, he executed a deed of sale to transfer
the property to X. And as expected, after
the transaction, when B1 came to know, he
filed a case against the two. Two
defendants claiming that the transaction is
simulated. It was intended to deprive him of
his share in the property. And ang depensa
ni X, I am not aware of your quarrel with
your brother. The title is clean. I’m an
innocent purchaser in good faith and for
value. And somehow, B1, failed to prove
the fraud. So, the case filed by B1 was
dismissed. Na-dismiss ang kaso when B1
failed to prove his cause of action. And the
judgment became final. And B1
disappeared. Maybe he died.
So, after several years, sabi ni B2
kay X, Thank you, Pare, for your help. Thank
you for your help because of that my
brother failed to prove his case against me.
So, tapos naman, wala na man siya, isauli
mo na sa akin yong property. And X said,
what are you talking about? Di ba yong
usapan natin, yong transaction, kunyari
man lang yon? No, I bought this from you!
So, what happens? B2 filed another case
against X. Now, X moved to dismiss citing res
judicata. Res judicata because the
elements are there. We are co-parties. The
case is also between the same parties.
You’re a party, I was also a party. Precisely,
the issue there is whether the transaction
between the two of us is simulated or not.
That is the position of your brother.
And the Court said there is no
simulated transaction. Now, your are raising
simulation. So, the question is whether the
decision in the first case is res judicata to the
second case? And the Court said, first of all,
is the litigation between the same parties?
Let us analyze that question. Well, sabi ni B2,
yes, di ba nandoon din tayo. The only
difference is doon co-defendants kita. This
time, magkalaban na tayo. And the SC
said, this is not identity of parties. Res
judicata is applicable only between those
who were adverse parties in the former
case. Magkalaban tayo sa first case. Not
between co-parties for the judgment in the
first case ordinarily settles nothing as to the
relief. Relative rights or liabilities of co-
plaintiffs or co-defendants intersect. They
were both parties but they were not
together.
Second, is the judgment in the first
action declaring that there was a case filed
by B1 questioning the transaction
conclusive in this case? And the SC said,
under the Doctrine of Conclusiveness of
Judgment, the judgment in the first action is
not conclusive because that was never
adjudged. What was adjudged there was
the claim of B1, not the claim between B2
and B1. And more over, the causes of
action are not the same. The conclusiveness
of judgment, the causes of action are not
the same. They are not identical. So, the
second case can go on. There is no res
judicata.
Another case decided recently, on the doctrine of
conclusiveness of judgment, was applied in 1993 case of:
VDA FISH BROKER vs. NLRC
228 SCRA 681
The ruling was based on res
judicata, particularly on conclusiveness of
judgment. The complainants here filed a
case against the respondents for collection
of labor standard benefits. The complaint
was filed against the employer for non-
payment for service incentive pay, ECOLA,
13th month pay, premium, holiday. The
defense of the employer, he is not liable
because there is no employer-employee
relationship. And the NLRC ruled that there
is no ER-EE relationship existing between
complainants and respondent. So, the case
was dismissed. It became final.
Subsequently, the same complainants filed
a case against the same respondent for
reinstatement due to illegal dismissal. Sabi
ng respondent, how can you file a case for
illegal dismissal, when there is no ER-EE
relationship. That was already decided. Sabi
ng complainants, but this is a different case.
That case is recovery of labor standard
benefits. Ito reinstatement and backwages.
So, the question is, is the finding of no ER-EE
relationship in the first decision conclusive
between the same parties in the second
case for illegal dismissal?
And the SC said, yes. The finding of
lack of ER-EE relationship in the first case is
conclusive on the second case. The issue of
ER-EE relationship is crucial in the
determination of the rights of the parties in
both cases. Res adjudicata applies even
when the causes of action are not similar
under the concept of conclusiveness of
judgment. If we were to ignore the principle
of res judicata, an absurd situation arises.
When the same administrative agency
would have opposed conclusions based on
apparently similar circumstances. Just
imagine, suppose the NLRC in the second
case, would make a finding of ER-EE
relationship. How would you reconcile it in
the first case when there is none. That would
be inconsistent. The NLRC would be
inconsistent with itself if it would find ER-EE
relationship in the second case when it
actually found there was none in the first
case between the same parties. So,
whatever the NLRC found there is binding
on the same parties in the second case
even if the cause of action are not the
same. And what would happen kung
ganyan ang mangyari? This time the
complainants will win. And the SC said, the
effect would even be more impractical in
the sense that complainants are given dual
or conditional status. They are employees
for the purpose of reinstatement, but they
are not employees for the purpose of
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 entitlement for service incentive, ECOLA,
etc. Anong klaseng decision ito? My golly!
That would be a very absurd situation. That
is the effect of conclusiveness of judgment.
The SC also said in the case of Camarra vs. CA that
conclusiveness of judgment operates as an estoppel for issues
in which they are anchored.
Stare decisis/ Law of the case
The third concept is Stare Decisis. There is a similarity between
them. The similarity is that they always involve a final
judgment. You are invoking a final judgment. And this was
also asked in the bar. What do you understand by res
judicata, law of the case and stare decisis? Now, of course,
we know already res judicata. And the question is distinguish
one from the other.
Res judicata simply means finality of judgment. That
issues decided in a case once the decision has become final
or executory cannot be litigated again by the same parties in
a subsequent action involving the same subject matter.
Law of the case. For instance, A files a case against B
to recover an unpaid loan. What law obligates a debtor to
pay his loan? Di ba Civil Code? The law on Obligations and
Contracts. But B says that he is not liable to pay the loan
because the Civil Code is null and void. Of course, that is a
crazy defense. The provision of the Civil Code ordering
defendant to pay his obligation to his creditor is null and void,
sabi niya. Unconstitutional. And after trial, the court sustained
the defendant. The complaint is dismissed because the Civil
Code is null and void. But the defendant did not appeal.
What happens now to the decision? It becomes valid. It is a
valid decision although it is wrong. The plaintiff should have
appealed. And therefore, as far as that case is concerned, is
the debtor liable to the defendant? And the answer is no.
Why? Because the Civil Code of the Philippines is null and
void. Of course, that is a crazy reason but since that was the
reason and the defendant did not appeal, then that decision
binds the parties. Meaning, as far as that case is concerned,
that is the law. That the civil code is null and void. That is what
is called the doctrine of the law of the case. Once the
decision becomes final, even if it is wrong, that ruling binds the
parties. But it is only applicable to that case.
Assuming that there will be another case and the
court will have the same ruling, the plaintiff should appeal so
that the decision will be reversed. Suppose there is another
case and again the defendant invoked that, this time the SC
said it is wrong. The Civil Code is valid. Every debtor should
pay. Let us go back to the first case. Ganoon ba? Mali pala
yung decision. That should apply to me also. It cannot apply
to you because as far as the first case is concerned, you did
not appeal. It became final. And that doctrine which is a
wrong ruling applies to that case.
What is this third one - Stare Decisis? It means
precedent. The decision in the previous case should also
apply to future cases. The decisions of what court? The SC.
The decisions of the SC should stand as precedence for future
guidance. The purpose is obvious. To obtain stability in judicial
ruling. Remember that decisions of the SC form part of the law
of the land. That is what the Civil Code says. Jurisprudence.
That is what they call case law. How the law has been
interpreted forms part of the law of the land. Why do we study
SC decisions? So that we will be guided. When the same
problem crops up in the future, we will know how to interpret it.
Meron ng guidelines. It would be so difficult without the
principle of stare decisis. Any court is free to interpret the
provisions differently. Every case, pakambiyo-kambiyo. In
other words, there would be confusion.
According to the SC, the doctrine of stare decisis
normally applies only when a decision of the SC has been
repeated and reiterated. Normally, if there is a landmark
ruling by the SC, isa pa lang wala pang stare decisis yan. It is a
precedent but for all you know the SC might change itself in a
motion for reconsideration. But when a doctrine is enunciated
in another case, and another case, same ruling, pabalik-balik,
it is now stable. It has now attained stability and it now forms
part of the doctrine of stare decisis. The SC has explained the
wisdom of stare decisis, why we are bound to follow rulings in
the past. In the case of Rosales vs. CFI, the SC said:
Precedents are helpful in deciding
cases when they are all force or at least
substantially identical with previous
litigations. Earlier decisions are guideposts
that can lead us in the right direction as we
tread the highways and byways of the law
in the search for truth and justice. These
pronouncements represent the wisdom of
the past. They are the voice of wise judges
talking to the future. Except when there is a
need to reverse them because of an
emergent viewpoint or an altered situation,
they urge as strongly that indeed the
trodded path is best.
However, we should not confuse this doctrine with
another principle. If there is such a thing as stare decisis, why is
it that sometimes, the SC reverse themselves after years? They
make a doctrine then after 5 or 10 years, they change their
minds and abandon it. They throw it away. And this situation
happens many times. Because times change. Social
conditions, economic, political, sociological conditions
change. And therefore, the court should adjust its doctrine to
the changing times. The rule, therefore, is simple. We follow
precedents but we should not be a slave to precedents. Even
in this case, the SC had an opening: Except when there is a
need to reverse them because of an emergent viewpoint or
an altered situation, they urge as strongly that indeed the
trodded path is best. It shows that the SC is not a slave to its
past rulings. In another case, the SC explained also why once
in a while it abandons the doctrine of stare decisis:
If we seem fit to take a second
look at the doctrine on which we all agreed
before, it is not because of a change in the
composition of this body. It is not because
the judges now are different from those in
the past. It is the same court that is
changing its mind after being confronted
with the same question again in the light of
new perspectives. And where it might and
can, for the tenets it lays down are not
immutable. The decisions of this court are
not petrified rules to rule rigid once
pronounced but vital growing things subject
to change as all life is also subject to
change. While we are told that the
trodded path is best, this should not prevent
us from opening a fresh trail or exploring the
other side or destine a new idea in this field
of continuing inquiry.
Meaning, the law is supposed to be dynamic. While
there is already that doctrine, there is nothing wrong if we will
try to find out whether that doctrine still fits the temper of times.
Q: How do we distinguish res judicata from these other
concepts?
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Res judicata Stare decisis
operates between 2 actions refers to cases with different
involving the same cause of parties. The case that was
action. In other words, there decided by the SC involves
are 2 cases involving the same parties which are different
parties and the same cause of from each other but still you
action. are invoking the ruling in that
case.
applies to all cases decided refers only to decisions of the
by the courts including the SC. The rulings of the MTC,
CA, RTC and the MTC. the RTC or the CA cannot be
the basis of stare decisis.
Only SC decisions.
refers only to one case which refers to various cases which
may or may not be invoked in are usually invoked
subsequent cases subsequent cases.
Foreign judgment
Sec. 48. Effect of foreign
judgments or final orders. - The effect of a
judgment or final order of a tribunal or a foreign
country, having jurisdiction to render the
judgment or final order is as follows:
(a) In case of a judgment or
final order upon a specific thing, the judgment or
final order is conclusive upon the title to the
thing; and
(b) In case of a judgment or
final order against a person, the judgment or
final order is presumptive evidence of a right as
between the parties and their successors in
interest by a subsequent title.
In either case, the
judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of
law or fact. (50a)
We are talking here of a judgment of a foreign court.
Are decisions of foreign courts honored in the Philippines? This
is what Sec. 48 answers. This provision is actually related with
the study on Conflict of Laws or Private International Law.
A, an American filed a case against B, say in the
court of New York. They were quarreling over the ownership of
a ring or a necklace. After fighting it out in the court of NY, A
won. So, the court said A is the owner. The judgment became
final. Now a came to the Philippines and decided to stay
here. B followed him. And upon reaching the Philippines, he
filed a case against A to recover the same ring. Now, A
invoked res judicata. Because it is the same case they had in
NY. And here is the judgment of that court in NY. According to
B, that judgment in NY is not binding in the Philippines.
Therefore, it cannot be invoked. Who is correct between the
two?
A is correct. The judgment in NY is binding in the
Philippines because of par. (a). In case of a judgment or final
order upon a specific thing, the judgment or final order is
conclusive upon the title to the thing. It is conclusive and it is
100% honored in the Philippines. That is judgment upon a
specific thing.
Suppose the judgment is not upon a specific thing
but on something else. I think you have met this in your study
of the civil code specially on marriages. A, an American is
married to B, a Filipino. A went back to the US and obtained a
divorce. Is the divorce obtained by the American husband
valid in the Philippines? Yes because he is an American. That
is covered by par. (b). In case of a judgment or final order
against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title. Meaning, it is
presumed that the decision is valid and therefore based on
the family code, the Filipino wife may now remarry.
Q: We will change the problem. A and B are both Filipino
citizens. They are married here. Both of them went abroad
and got a divorce before an American court. When they
came back, they said that since they are already
divorced, they can now remarry. Is the judgment of the
American court decreeing divorce between the 2 Filipinos
valid? Will that be honored here?
A: This time, the answer is no because of the last
in paragraph: In either case, the judgment or final order may
be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law
or fact. Why is that judgment not honored in the
Philippines? Because of lack of jurisdiction by the US court.
The US court has no jurisdiction over the status of the parties
who are Filipino citizens because of the rule that the law
governing the status of Filipinos is governed by the law of
their state.
Q: How do I enforce a foreign judgment? Who will execute?
A: The procedure there is that the Philippine court will order
the execution of the judgment. The case was not decided
here but in the foreign country. Actually, the plaintiff has to
file a case in the Philippines and the cause of action is
enforcement of a foreign judgment. Similar to an action
for revival of judgment. Magkahawig. In that case, if you
are the foreigner who is here, that is now your chance to
say that the judgment or final order is not valid because of
lack of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. You have now the
forum to raise those defenses if they are indeed true. But
you have to file your case here. As a matter of fact, only
recently, the SC wrote a decision on this issue, enforcement
of a foreign judgment.
PHILSEC INVESTMENT vs. CA
June 19, 1997
So, when this comes out, you better read it. It has a
lengthy discussion of Rule 39, Sec. 48. So, we are now through
with Rule 39 which is the longest rule in the rules of court.
End of Rule 39.
APPEALS
Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
We will now go to the second to the last topic in our
study of Civil Procedure, the law on appeal which starts from
Rule 40 to Rule 56.
Q: We will start with appeals from the lowest court of the
land, the MTC. Where will you appeal?
A: Under the judiciary law, all appeals from the MTC should
be to the RTC. That is governed by Rule 40. On the other
hand, when the case is tried and decided by the RTC and
you want to appeal, normally, the appeal should be to the
CA under Rule 41. So, it is appeal from the trial court to the
next higher court.
Q: You should know the basic provision on appeal
because all these provisions are revolving around the basic
law. What is the basic law on appeal?
Page 251 of 296
 A: The basic law on appeal is Sec. 39 of BP 129, the notice of appeal and appeal, payment of docket
judiciary law. That is the first provision that you have to payment of docket fees plus a Record on
remember. fees. Appeal.

Sec. 39. Appeals. - The

period for appeal from final orders, resolutions,
awards, judgments or decisions of any court in
all cases shall be fifteen (15) days counted from
the notice of the final order, resolution, award,
judgment, or decision appealed from: Provided,
however, That in habeas corpus cases, the
period for appeal shall be forty-eight (48) hours
from the notice of the judgment appealed from.
No record on
appeal shall be required to take an appeal. In
lieu thereof, the entire original record shall be
transmitted with all the pages prominently
numbered consecutively, together with an index
of the contents thereof.
Multiple Appeal
Also, aside from special proceedings, the period to
appeal is also 30 days and a record of appeal is also required
in civil actions where multiple appeals are allowed. Meaning,
as an exception to No. 1. Generally, multiple appeals are not
allowed in civil cases. That is the general rule. But in some rare
instances, the law allows more than one appeal in a civil case
in which case the situation is governed by par. (1) and
therefore the period to appeal is 30 days and there is the
added requirement of a record on appeal. Why is it that as a
general rule only one appeal is allowed in civil actions? Ano
pala itong instances na more than one? This is just an
overview of the entire law.

This section shall Habeas Corpus

not apply in appeals in special proceedings and
in other cases wherein multiple appeals are And of course, by virtue of Sec. 39 of BP 129, the
allowed under applicable provisions of the Rules period to appeal in habeas corpus is only 48 hours. The
of Court. requirements are the same as in par. (1). There was a habeas
corpus case before filed by a German woman against her
Filipino husband, a doctor. They lived in Germany. I do not
We will do a complete outline of the law on appeal. know what happened to them but life became unbearable
for the Filipino husband, he decided to run away leaving
Type of Case Period to Requisites for behind his wife. Baliktad no? They had only one child. He
ppeal appeal brought with him his child. The woman followed him here and
A. Civil Actions in general 15 days 1. File in court filed a habeas corpus case asking the German embassy to
Notice of Appeal help which in turned hired one of the best law firms in Manila
2. Payment of to file the habeas corpus case. Pero kasi the German mother
appellate docket followed after a year pa. So, yung bata does not remember
fees the mother anymore. Tapos naging fluent pa in Cebuano. So,
B Special Proceedings and 30 days 1. same as above taking these factors together, the judge siguro was being
where multiple appeal is 2. Record on nationalistic dismissed the habeas corpus case and ruled that
allowed Appeal the child remain with the father with visitation rights for the
C. Habeas Corpus 48 hours 1. Same as in par. mother. The German woman was not satisfied. No, we will
(1) appeal. So, nag-file ng appeal, on the 15th. Nakalimutan
niya ang 48 hours. So, the appeal was dismissed again for
Civil Actions being filed out of time.

So, that is a brief summary of the entire law on
appeal. Under the new rules, in civil actions in general, you
only have 15 days. I think we have been discussing this
provision several times. Ano ba ang gagawin mo? What will I
do in 15 days? As you shall see, the person appealing is
required to file before the trial court what is known as a Notice
of Appeal. How does it look like? Never mind. We will discuss
that later. In the light of the new law, it now imposes the
requirement of payment of docket fees within 15 days. Unlike
before where payment of docket fees can be made very
much later. Ngayon, no. You pay the docket pays also within
15 days, otherwise, your appeal will be dismissed. So, that is a
new requirement.
Special Proceedings
We already discussed that. That is one question we
already took up. Distinguish a civil action from special
proceedings. In special proceedings, the period to appeal is
doubled. It is 30 days. What do you do? You also file in the
trial court the same notice of appeal and you pay the docket
fees. But there is a third requisite. You must file what is known
as a Record on Appeal. That is one of the distinctions
between a civil action and a special proceeding.
Civil Actions Special Proceedings
a remedy to enforce a a remedy for the declaration
right or redress a wrong, of a status of a right or a
particular fact, etc.
period to appeal is only period to appeal is 30 days
15 days and it requires a and requires notice of
The provision of 48 hours in habeas corpus used to be
found also in Rule 41 which says that the appeal in habeas
corpus is 48 hours. Now, if you look at Rule 41, the provision of
48 hours is no longer found. Nasa Sec. 39 of BP 129 na lang.
So, let us go to Rule 40, Appeal from the MTC to the
RTC. What is the basic provision on this? At the start of the
course, we studied the original jurisdiction of the RTC, the
appellate jurisdiction of the RTC which is found in Sec. 22. That
is why Rule 40 is revolving around that provision. Let us recall
that:
Sec. 22. Appellate jurisdiction. -
Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective territorial
jurisdictions. Such cases shall be decided on
the basis of the entire record of the proceedings
had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties
or required by the RTCs. The decision of the RTCs
in such cases shall be appealable by petition for
review to the CA which may give it due course
only when the petition show prima facie that the
lower court has committed an error of fact or law
that will warrant a reversal or modification of the
decision or judgment sought to be reviewed. (BP
129)
Page 252 of 296
Let us now go to Sec. 1 of Rule 40:
Sec. 1. Where to appeal.
- An appeal from a judgment or final order of a
Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over
the area to which the former pertains. The title of
the case shall remain as it was in the court of
origin, The title of the case shall remain as it was
in the court of origin. (n)
So, from MTC, the appeal is to the RTC. The RTC
exercising jurisdiction over the area to which the former
pertains. So, if you want to appeal from the decision of the
MTC of Davao City, you don’t make your appeal to the RTC of
Tagum. The RTC of Tagum does not exercise jurisdiction over
Davao City. Sa Davao City ang appeal mo. If you lose in a
case in the MTC of Panabo, Davao del Norte, you do not
appeal also to the RTC of Tagum because Tagum has no
territorial jurisdiction over Panabo. There is an RTC branch in
Panabo. Kaya nga, at the start under the judiciary law, every
RTC has a designated territorial area.
The last sentence of this section is new. The title of the
case shall remain as it was in the court of origin. Pedro vs.
Juan. The party appearing in the case shall be referred to as
the appellant and the adverse party as the appellee. This is
now a new requirement. So originally, Pedro, plaintiff vs. Juan,
defendant. Pedro lost and he is appealing. Pagdating sa RTC,
Pedro, plaintiff-appellant vs. Juan, defendant-appellee. Or, if
it is the other way around, it is Juan appealing pagdating sa
RTC ganito: Pedro, plaintiff-appellee vs. Juan, defendant-
appellant. Normally, you only do that pagdating sa CA. But
now if you appeal in the RTC, ganoon na rin.
Sec. 2. When to appeal. -
An appeal may be taken within fifteen (15) days
after notice to the appellant of the judgment or
final order appealed from. Where a record on
appeal is required, the appellant shall file a
notice of appeal and a record on appeal within
thirty (30) days after notice of the judgment of
final order.
The period of
appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
The period to appeal is 15 days but in some cases
where the record on appeal is required, the period to appeal
is doubled. Is the period to appeal extendible? Meaning, can
it be interrupted? It can be interrupted if you file within the15
days a motion for new trial or reconsideration. The filing of a
motion for new trial or reconsideration stops the running of the
period to appeal provided the motion is not pro forma. That is
the limitation. No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed. This has been
taken from decided cases:
HABALUYAS vs. JAPSON
138 SCRA 46 / 142 SCRA 209
LACSAMANA vs. IAC
143 SCRA 643
The 15 day period within which to
appeal or to file a motion for
reconsideration or new trial can never be
extended.
Q: How about the period of 30 days? Is the 30 day period to
appeal extendible?
A: Surprisingly, the answer is yes. The 15 day period can
never be extended but the 30-day period is extendible
based on jurisprudence. Bakit? The reason is simple. You
know how a notice of appeal looks like? It is very short.
Mga 1 or 2 sentences lang. You don’t even need 15 days
to prepare for that. You only have 5 minutes to make that.
But yung record on appeal, makapal yan. Kaya nga 30
days. Sometimes, baka kulang pa nga. Provided you file
the motion for extension during the 30-day period.
Sec. 3. How to appeal. -
The appeal is taken by filing a notice of appeal
with the court that rendered the judgment or
final order appealed from. The notice of appeal
shall indicate the parties to the appeal, the
judgment or final order or part thereof appealed
from, and state the material dates showing the
timeliness of the appeal.
A record on
appeal shall be required only in special
proceedings and in other cases of multiple or
separate appeals.
The form and
contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the
notice of appeal, and the record on appeal
where required, shall be served on the adverse
party. (n)
Q: How do you appeal?
A: You file a notice of appeal with the court that rendered
the judgment. So, natalo ka sa MTC, appeal ka sa RTC.
You file the notice of appeal sa MTC, the court which
rendered the judgment. It shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing the
timeliness of the appeal. Ganito yan:
Notice of Appeal
Defendant
hereby serves notice that
he is appealing to the
RTC from the judgment
rendered by the MTC
dated March 5, 1998
copy of which was
received by him on
March 15, 1998.
Ganyan yan ka simple. You don’t need 15 days to
prepare that. My golly! You must indicate exactly not only the
date of the decision but also the date when you received it
because the running of the period to appeal does not run
from the date of the decision but from the time you received
it. Kaya nga the law says you must state the material dates
showing the timeliness of the appeal.
Second sentence: A record on appeal shall be
required only in special proceedings and in other cases of
multiple or separate appeals. We have already outlined that.
How it looks like? That will be discussed in Rule 41, Sec. 6. Then
you serve copies of the notice of appeal on the adverse
parties.
Page 253 of 296
 Sec. 4. Perfection of
appeal; effect thereof. - The perfection of the
appeal and the effect thereof shall be
governed by the provisions of section 9, Rule
41. (n)
Sec. 9, Rule 41 will answer that. What is the
importance of knowing when the exact date when the
appeal is deemed perfected? When the appeal is deemed
perfected, from that moment, the trial court loses jurisdiction
over the case. And by fiction of law, jurisdiction is
automatically transferred to the RTC.
Sec. 5. Appellate court
docket and other lawful fees. - Within the period
for taking an appeal, the appellant shall pay to
the clerk of the court which rendered the
judgment or final order appealed from the full
amount of the appellate court docket and other
lawful fees. Proof of payment thereof shall be
transmitted to the appellate court together with
the original record or the record on appeal, as
the case may be. (n)
That is an entirely new provision which lays down two
conditions or requirements. Within the period for taking an
appeal, so normally 15 days, the appellant shall pay to the
clerk of the court which rendered the judgment or final order
appealed from the full amount of the appellate court docket
and other lawful fees. The payment of docket fees is not
required under the old rules. Now, it is a requirement. And we
shall see the effect later, the failure to pay docket fees will
result to the dismissal of your case.
Sec. 6. Duty of the clerk
of court. - Within fifteen (15) days from the
perfection of the appeal, the clerk of court or the
branch clerk of court of the lower court shall
transmit the original record or the record on
appeal, together with the transcripts and
exhibits, which he shall certify as complete, to
the proper Regional Trial Court. A copy of his
letter of transmittal of the records to the
appellate court shall be furnished the parties. (n)
So, when the appeal is perfected, the clerk of court
of the MTC is supposed to transmit the original record to the
RTC.
Sec. 7. Procedure in the
Regional Trial Court. -
(a) Upon receipt of the
complete record or the record on appeal, the
clerk of court of the Regional Trial Court shall
notify the parties of such fact.
That is very clear. Now, par. (b) is another important
provision not found in the old rules.
(b) Within fifteen (15)
days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower
court, a copy of which shall be furnished by him
to the adverse party. Within fifteen (15) days
from receipt of the appellant’s memorandum,
the appellee may file his memorandum. Failure
of the appellant to file memorandum shall be a
ground for dismissal of the appeal.
Memorandum, yung bang mga arguments. When
you are appealing, you have to argue on why the decision is
wrong. In the memorandum of the appellant, he will argue
bakit mali ang MTC. Of course, you furnish a copy to your
opponent who will also file a memorandum which is called an
Appellee’s Memorandum. Sasabihin naman niya why the
decision is correct. You cite law and jurisprudence, your
evidence, etc. What is new here is that if the appellant fails to
file a memorandum in the RTC, his appeal will be dismissed.
Under the old law, whether you file a memorandum or not,
your appeal will not be dismissed. So, under the previous law,
the filing of an appeal memorandum in the RTC is optional.
But under the new law, the filing of an appeal memorandum
in the RTC is mandatory. I think that is fair enough because
kung mag-appeal ka from the MTC, you must point out to the
RTC saan ang mali. You help the RTC judge look for the error.
So, I think that provision is sound.
Halimbawa, ang appellee hindi nag-file ng memorandum.
Ako nag-file. Ikaw hindi. Let us read par. (c):
(c) Upon the filing of
the memorandum of the appellee, or the
expiration of the period to do so, the case shall
be considered submitted for decision. The
Regional Trial Court shall decide the case on the
basis of the entire record of the proceedings had
in the court of origin and such memoranda as
are filed. (n)
So, if the person appealing does not file a memorandum, his
appeal is dismissed. If it is the appellee who will not file, the
case shall be submitted for decision without appellee’s
memorandum. Does that mean to say talo na siya? Not
necessarily. Because if the decision of the lower court is very
clear, whether he files a memorandum or not, daog gihapon
siya. For all you know, nag-file ka nga ng memorandum wala
ka namang sinasabi. Pero kung 50-50 ang laban, you better
file one. So, kahit panalo ka na, there is still the danger of
losing.
Sec. 8. Appeal from
orders dismissing case without trial; lack of
jurisdiction. - If an appeal is taken from an order
of the lower court dismissing the case without a
trial on the merits, the Regional Trial Court may
affirm or reverse it, as the case may be. In case
of affirmance and the ground of dismissal is lack
of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction therefor,
shall try the case on the merits as if the case was
originally filed with it. In case of reversal, the
case shall be remanded for further proceedings.
If the case was
tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional
Trial Court on appeal shall not dismiss the case if
it has original jurisdiction thereof, but shall
decide the case in accordance with the
preceding section, without prejudice to the
admission of amended pleadings and additional
evidence in the interest of justice. (n)
This is another important and interesting provision and
again it changes the old law. If an appeal is taken from an
order of the lower court, meaning the MTC, dismissing the case
without a trial on the merits, meaning the MTC has dismissed
the case without a trial on the merits. Example, the MTC will
dismiss the case on the ground that it has no jurisdiction. That
is disposing of the case without trial. A case of legal
separation or annulment of marriage was filed in the MTC.
Klaro yan. No jurisdiction. The defendant moved to dismiss
and the MTC dismissed the case. So, tama. But the plaintiff
Page 254 of 296
appealed. Correct man ang ruling ng MTC. The case should
have been filed before the RTC. What should the RTC do?
Under the new rule, the RTC will now proceed with the case as
if it has been filed before it. It should treat the case not as an
appealed case but as an original case. That is the new
provision. The RTC which has jurisdiction, shall try the case on
the merits as if the case was originally filed in the RTC.
Suppose it is the other way around. A case for
unlawful detainer was filed in the MTC but the MTC erroneously
dismissed the case for lack of jurisdiction. And on appeal, the
RTC said you’re wrong. You have jurisdiction. So, ibalik niya
yung kaso sa MTC. That is the last sentence of the first
paragraph. In case of reversal, the case shall be remanded for
further proceedings.
The second paragraph is the exact opposite of the
first. This time, a complaint for annulment of marriage is filed in
the MTC and the MTC tried the case. In other words, the trial
by the MTC is void. The defendant, of course, will appeal.
When the case is appealed to the RTC, the RTC should not
dismiss the case if it has original jurisdiction but shall decide the
case in accordance with the proceedings. It will treat it as if it
has been filed for the first time in the RTC and not as an
appealed case. That is the new rule not found in the old law.
Sec. 9. Applicability of
Rule 41. - The other provisions of Rule 41 shall
apply to appeals provided for herein insofar as
they are not inconsistent with or may serve to
supplement the provisions of this Rule. (n)
Actually, the rules on appeal are supposed to be
uniform in the MTC or RTC. So do not believe na Rule 41
applies only to the RTC to the CA. They also apply suppletorily
to appeals in the MTC. So, Rule 41 also applies to Rule 40.
Unlike in some decided cases in the past like BP 129 where
there was an appeal from the old city court or municipal court
and then the parties cited Rule 41. Sabi ng SC, you cannot do
that. Because the rules on appeal from the municipal court to
the CFI is governed by Rule 40. So, the provisions of Rule 41 do
not apply . Ngayon, wala na yan. In other words, by direct
provision of law, the provisions in Rule 41 are also applicable in
Rule 40 insofar as they are not inconsistent.
End of Rule 40.
Rule 41
APPEAL FROM THE
REGIONAL TRIAL COURT
Now, the bulk of the important rules are found in Rule
41. And Sec. 1 is the main provision which is a new one.
Sec. 1. Subject of appeal.
- An appeal may be taken from a judgment or
final order that completely disposes of the case,
or of a particular matter therein when declared
by these Rules to be appealable.
No appeal may
be taken from:
(a) An order denying a motion
for new trial or reconsideration;
(b) An order denying a petition
for relief or any similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or
dismissing an appeal;
(e) An order denying a motion
to set aside a judgment by consent, confession
or compromise on the ground of fraud, mistake
or duress, or any other ground vitiating consent;
In all the above
instances where the judgment or final order is
not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
(n)
What is new under the present rule is that while the
opening paragraph tells us what may be appealed, the rest of
the section tells us what may not be appealed. No appeal
may be taken from: tapos (a) to (h) na. This is not found under
the old law. So, it tells us what can be appealed and what
cannot be appealed.
Before we take up the individual paragraphs, I would
first discuss the third one, so let us jump immediately to par. (c).
No appeal may be taken from:
(c) An interlocutory order;
And this is where this is important. There are 2 types of
judgment or orders and for purposes of the law on appeal,
there is such a thing as a final order as distinguished from an
interlocutory order. Meaning, final order in the sense that it is
not interlocutory and the other concept is final order in the
sense that it is already executory.
Final vs. Interlocutory order
Q: An examiner may ask this question. What do you
understand by final order or judgment?
A: (1) An order is final in the sense that it is not merely
interlocutory and therefore it is already appealable, and
(2) Final in the sense that it is already executory. So, there
are 2 types of orders. Final vs. interlocutory. If it is final, it
can be appealed. If it is in interlocutory it cannot be
appealed. That’s why we get confused it if you do not
know the meaning of the word final.
Q: When does a decision become final? You can only
appeal a judgment when it is final. When does it become
final?
A: Di ba it becomes final after the period to appeal lapses.
That’s the rule. I cannot appeal unless it is final so I have to
wait for 15 days. Pag-final bago ako mag-appeal.
How can I appeal, final na nga. Because na-confuse ka sa
ibig sabihin. So, how do we distinguish a final judgment or
order from an order or judgment which is merely interlocutory.
And the definition of the word final is found in the opening
paragraph: An order or judgment is final if it completely
disposes of the case or of a particular matter therein. It
completely disposes of the case.
But if an order or judgment has not yet completely
disposed of the case, then it is called an interlocutory order or
judgment. Iba yan, no. A judgment to be appealable must
be final. And by final we mean, it has completely disposed of
the case. So, that there is nothing more for the court to do
after its rendition. On the other hand an interlocutory order or
judgment is one which has not yet completely disposed of the
action or the proceeding. And therefore, an interlocutory
order or judgment is not yet appealable.
Page 255 of 296
Final order Interlocutory order
order or judgment which order or judgment has not yet
completely disposes of the completely disposed of the
case or of a particular matter case
therein.
appealable not yet appealable
Q: Alright. So, what is the test?
A: The test is this: The court renders judgment or issues an
order. Ask yourself. Is there anything more for the court to
do after this? If the answer is no, the court has nothing
more to do, then that must be a final order or judgment.
That can be appealed. But if the answer is, after this
ordered is rendered there is still something for the court to
do, you cannot appeal because the order is interlocutory.
That is one meaning of final.
The other meaning of final is found in Rule 39, a
judgment or order becomes final when the period to appeal
lapses and there is no appeal, then that is now subject to
execution. That is final. That is the second meaning of word
final. Kaya this word final-final, you have to be very careful
because you must know whether you are referring to the first
meaning or the second meaning. A good example is this: Yun
bang actions which do not survive? Rule 3, that’s the first time
that word final is first mentioned. Let us try to go back to Rule
3, Sec. 20:
Sec. 20. Action on
contractual money claims. - When the action is
for recovery of money arising from contract,
express or implied, and the defendant dies
before entry of final judgment in the court in
which the action was pending at the time of
such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the
manner especially provided in these Rules for
prosecuting claims against the estate of a
deceased person. (21a)
Before entry of final judgment. Ano ba ang meaning
nang final dyan? Final on the first meaning, or the second
meaning? Actually it is final on the second meaning. So it is
final already based on the first meaning but not yet covered
by final on the second meaning. Final in the sense that it is not
merely interlocutory and the second is final in the sense it is
already executory.
Let us go to a direct example: Favorite bar question.
This has been asked 3 or 4 times already. The question is on the
concept of whether the order is final or interlocutory. Plaintiff
filed a case against defendant. Defendant filed a motion to
dismiss under Rule 16, Motion to Dismiss. After hearing the
motion to dismiss, the court granted the motion. Motion to
Dismiss granted. Who is the aggrieved party? Plaintiff.
Q: Can the plaintiff appeal from the order dismissing his
complaint?
A: The answer there will depend on whether the order is
final or interlocutory. So, is the order of the court granting
the motion to dismiss a final order which can be
appealed? Or, is it an interlocutory order which cannot be
appealed?
You apply the test. An order is final if it completely
disposes of the action so that there is nothing more for the
court to do after it. Whereas, if the order has not yet disposed
of the action, there is something more for the court to do, the
order is interlocutory and therefore cannot be appealed.
Final or interlocutory? Is there anything more for the court to
do after issuing the order of dismissal? Wala na! Ano pa ang
gagawin, dinismis na nga eh! Wala na akong trabaho!
Therefore, the order of dismissal is a final order and the plaintiff
can appeal. Yan!
We will now change the problem. A filed a case
against B. B filed a motion to dismiss under Rule 16. After
hearing the motion to dismiss, the court issued the order
denying the motion to dismiss. Motion to Dismiss denied. Who
is aggrieved? Si B alangan!
Q: Can the defendant appeal from the order denying his
motion to dismiss?
A: Yes.
Q: Is there nothing more for the court to do after issuing the
order?
A: After the court denies the motion, defendant should file
his answer, di ba! Then after the answer, pre-trial! After
pre-trial, there will be trial. After trial, there will be
judgment. So, after denying the motion to dismiss, may
trabaho pa ako. Marami pa nga! Therefore, the order
denying the motion to dismiss is interlocutory. You cannot
appeal. That is the best illustration of a final order
interlocutory order.
Kaya you have to know the difference between the
two. So an order granting a motion to dismiss is a final order
because it has completely disposed of the case. Being final,
the plaintiff can appeal from the order dismissing his
complaint. On the other hand, the same motion to dismiss is
denied, the order of denial is interlocutory and the defendant
cannot appeal from the order denying. So you see the point?
So kung mali pala yung order niya hindi ako maka-
appeal? You can appeal but the procedure is you file your
answer, you submit to trial. After trial, kung talo ka pa you
appeal. The procedure is if the order is interlocutory, you have
to wait for that final judgment to arrive bago ka mag appeal.
One time ba! Hindi yung putol-putol! Kaya nga multiple
appeal, as a rule is not allowed in civil cases. There should only
be one appeal.
Here are the reasons why multiple appeal is generally
prohibited in civil cases:
1) If a party can appeal from every interlocutory order after
the case is finally decided, there might be more than 100
appeals already emanating from that case.
Can you imagine? Suppose a party files a motion
every week. File ka nang motion denied. Appeal siya. So
kada semana, naay appeal. Then later on, one party may
lose. Final judgment. Appeal na naman. By that time 100
appeals na. So what is the procedure? The procedure is
every order which is interlocutory hintayin mo. Wait for the
final judgment. Kung talo pa ako, one time lang ako mag-
appeal para sabay-sabay na. That is the correct procedure
that you have to remember. So actually the law does not
prohibit an appeal from an interlocutory judgment or order but
merely postpones your right to appeal until the final judgment.
2) If the court issues an interlocutory order, it still continues
to act in that case because it will still act on it in the future.
According to the SC, the court does not lose
jurisdiction. Now, in the course of the proceeding, it might
realize that its first order was wrong. So the same court will
change the order. Because if I issue a wrong order, palitan ko
pala. In other words, I still have the chance to correct my
mistakes. So it is premature to appeal. But if the order is final,
because after that wala naman akong gawin, there is no
opportunity for me to realize my mistakes later, that is the time I
appeal.
That is what I want you to remember about final
orders and judgments. That’s why I proceeded immediately to
par. (c). A final order is appealable whereas an interlocutory
order is not yet appealable in the meantime. And of course,
Page 256 of 296
we discussed what do you mean by a final order; what do you
understand of an interlocutory order; Give an example. Yan.
Sometimes, it is very easy to detect whether the order
is final or interlocutory. Like the example I gave you. Motion to
dismiss granted, motion to dismiss denied. But there are
instances were sometimes even if you apply the test, we will
have a hard time in determining whether it is final or
interlocutory. Let us try to go to examples.
A files a case against B. When the case is going on, X files a
motion to intervene under Rule 18. Motion for Intervention on
the ground that he has an interest in the subject matter. The
court, after hearing the motion of X, denied the motion.
Motion to Intervene denied. Question: Can X file and appeal
from the order denying his intervention? That involves an
analysis on whether the order if final or interlocutory. Is there
anything more for the court to do after denying the motion to
intervene? The court will continue with the trial between A
and B kay sila man ang naga- laban, di ba? Nag-intervene si
X. The court denies the intervention.
It would seem that the order is interlocutory because
the court still has something to do. After denying the
intervention of X, the case between A and B will continue.
There is something more for the court to do after the decision.
That is the definition. After the motion to intervene is denied, is
there something more for the court to do or no more?
But the SC said: The motion denying the intervention
is a final order. It would seem that what the SC is saying is as
far as your right is concerned, I have nothing to do with you
anymore. Marami pa akong trabaho dito, pero sa iyo wala
na. So according to the SC, the order denying the motion to
intervene is a final order and is appealable. Kaya nga yung
test that there is nothing more for the court to do is very
confusing. In other words, you divide the case into parts. And
I think the best test was properly given by the SC in the case
of:
DAI vs. RTC of Zamboanga City, Br. 13
191 SCRA 610
The SC said: An order which
decides an issue or issues in a complaint is
final and appealable although the other
issue or issues have not been resolved if the
latter issues are distinct and separate from
the others.
Yan. So there are other issues to resolve but separate
na yon. Another case were the SC said that is the recent case
of:
REPUBLIC vs. TACLOBAN CITY ICE PLANT
July 5, 1996
258 SCRA 145
The SC commented about final
and interlocutory orders. The SC said: A
court order is final in character if it puts an
end to the particular matter, resolves and
settles definitely the matter therein disposed
of such that no further question can come
before the court except the execution of
the order. Such an order or judgment may
validly refer to the entire controversy or to
some definite and separate branch thereon
that is practically the same even if there is
something more for the court to do in other
branches.
The order is final actually. It disposes already of a
particular issue or a branch of litigation. That is the best test.
That is why it is incorporated in par. 1 opening par. of sec. 1.
That is in accordance with what the SC said in DAI vs. RTC of
Zamboanga and also in the case of Tacloban Ice Plant. In
other words, either the whole case is disposed of or a
particular matter therein has been disposed of. That is the
ultimate test.
But for your purpose, you better concentrate doon sa
unang sinabi ko. Because I noticed sa bar, simple problems
lang, like the first example. A files a motion to dismiss, the court
grants the motion to dismiss the case and the plaintiff
appealed from the order dismissing his complaint.
Q: Then question: Suppose the court denies the motion to
dismiss, can the defendant appeal from the order denying
the motion to dismiss?
A: Yung una, appealable. Second, hindi appealable. The
reason is the first order is final. And the second question the
order is interlocutory.
And of course, you will be able to explain what do you mean
by final or interlocutory. Most of the questions in the bar that I
encountered is in that example. All these things are quite
complicated pero concentrate more doon sa una.
Summary of the law on appeal:
Only final judgments or orders can be appealed.
Interlocutory judgments or orders are not appealable yet.
Q: What do you mean by final judgment?
A: The term final judgment has 2 possible meanings in civil
procedure.
(1) final in the sense it is already appealable
and not merely interlocutory.
(2) final in the sense it is already executory.
Now, when we say that only final judgments or orders are
appealable, you are referring to the first one. Because under
Rule 39, in order to execute the judgment it must be final also.
But that’s a different meaning. It means that it became final
because there was no appeal. Eto naman, it is final in the
sense it could already be appealed. And that is the definition
of a final judgment of a court of appeal if there is nothing
more for the court to do after it has rendered a decision.
On the other hand, an interlocutory judgment or order is
something which does not completely dispose of the action
and there is something more for the court to do after its
rendition. Example. Actually the law does not prohibit the
party from appealing from an interlocutory order or judgment.
Actually you cannot appeal immediately.
Q: Now how do you appeal from an interlocutory order?
A: The procedure is if there is an order which is against you
or is not appealable, you have to wait. The case is to be
tried and you have to wait for the type of judgment to be
rendered. And then if you are dissatisfied with the
judgment, you can now appeal from the said judgment
and with the interlocutory order issued in the course of the
proceeding. So, there should only be one appeal from
that case. That’s why as I presented last night, as a general
rule, the law on civil procedure prohibits more than one
appeal in one civil action. That is the general rule.
And the reasons why interlocutory orders are not
appealable are:
1. to avoid multiple appeals arising
from one civil case; and
2. since the order is interlocutory,
and the court is still to continue to try the case in
the course of the proceeding, the court may
realize its error and the court may change its
order. The court will be given an opportunity to
correct its own mistake.
Page 257 of 296
 That is the principle to remember. Now let us go to
an example. Because sometimes, you will be confronted with
this if you follow the general rule. Example, in a case of
unlawful detainer or forcible entry which is tried in the RTC. It is
plain there that the court has no jurisdiction. So the defendant
moved to dismiss. But suppose the court denied the motion.
Motion denied. The judge does not know his law. Now is the
order denying the motion to dismiss final and executory? It is
final and executory. But you cannot appeal. So, what shall I
do?
If you follow the general rule, you file your answer.
You proceed to trial. Anyway, everything is null and void. You
have already raised lack of jurisdiction. Okay. In other words,
let us go to trial. Then the decision is against you. I will now
appeal from the judgment and I will appeal from the order
denying my motion. Meaning, you are not prejudiced
because anyway, you raised that issue. Because the order
denying the motion to dismiss is obviously interlocutory. But
you say that it is tedious. The defendant is practically
compelled to enter into a trial which from the very start is null
and void. It is a waste of time. It is a waste of effort. And you
cannot appeal simply because the order is interlocutory. Now,
is there a way of going about it?
Q: Meaning, if I will appeal, is there a way of hastening the
issue before a competent court in order to avoid a waste
of time and effort and money of entering into a trial which
anyway is null and void from the very beginning for lack of
jurisdiction?
A: The answer to that question is the last paragraph of Sec.
1:
In all the above
instances where the judgment or final order is
not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
(n)
That is the remedy. Since appeal is not available, the
appropriate remedy is a special civil action under Rule 35.
There are 3 special civil actions there. Certiorari, prohibition
and mandamus. You resort to these if you want to hurry up
because anyway there is no appeal. This will become clearer
when you take up Special Civil Actions in third year. Precisely I
have to apply these because there is no appeal under the
rules on ordinary civil procedure.
Let us try to go back to Sec. 1. What are these orders
which are not subject to appeal? As I said this is one of the
innovations under the 1997 rules. The present rule, Rule 41 tells
us exactly what orders cannot be appealed? Let us go back
to par. (a)
(a) An order denying
a motion for new trial or reconsideration;
I lost a case and filed a motion for reconsideration.
Denied. I have to go back to Rule 37, Sec. 9.
Sec. 9. Remedy against order
denying a motion for new trial or
reconsideration. - An order denying a motion for
new trial or reconsideration is not appealable,
the remedy being an appeal from the judgment
or final order. (n)
That is the correct way. You appeal from the final
judgment but not from the order denying. That is why the
answer is there.
(b) An order denying a
petition for relief or any similar motion seeking
relief from judgment;
That is new. You know what is a petition for relief, di
ba? If you file a petition for relief and your petition is denied,
you cannot appeal from the order denying your petition for
relief.
Under the prior rule based on decided cases:
An order granting a petition for relief is not
appealable. But an order denying a petition for relief
is appealable. That was the old rule. An order
granting a petition for relief is not appealable
because the order is interlocutory. But an order
granting a petition for relief is appealable because it
is final. That was the reasoning under the old law.
Under the new rule:
An order now denying a petition for relief is not also
appealable. But how about an order granting the
petition for relief? It is not also appealable because it
is covered by par. (b). So, whether the order is
granting or denying, under the new law, it is not
appealable. Because the correct remedy is Rule 65,
Special Civil Action under the last paragraph of Sec.
1. This is not found in the old law.
Paragraph (c), tapos na tayo diyan. Par. (d):
(d) An order disallowing or
dismissing an appeal;
Q: If an appeal is dismissed or disallowed, can you appeal
from the order disallowing your appeal?
A: No.
Q: So, if your appeal is denied you cannot appeal from the
order denying. Ano pala ang gagawin mo?
A: Well again, as we take up Rule 65, the correct remedy is
the special civil actions. That we shall discuss later. But the
new rules give another remedy. Another possible remedy is
found in Rule 38, Sec. 2.
Sec. 2. Petition for relief from denial
of appeal. - When a judgment or final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented
from taking an appeal, he may file a petition in
such court and in the same case praying that
the appeal be given due course. (1a)
So, another possible remedy is a petition for relief
from the order denying the appeal. And based on Rule 65,
the other possible remedy is a special civil action.
(e) An order denying
a motion to set aside a judgment by consent,
confession or compromise on the ground of
fraud, mistake or duress, or any other ground
vitiating consent;
Judgment by consent. Cognovit judgment.
Judgment by confession or compromise. Suppose I will file a
motion to set aside the compromise judgment because my
consent was secured through fraud, mistake, duress, etc. The
order is denied. Can I appeal from the order? I think I already
mentioned this when we were in Rule 36. The old ruling is
puwede. A judgment by compromise is not appealable. We
know that. That is one of the features of a compromise
judgment. Because you are a party to it. You gave your
consent and you make an appeal. But the order denying the
motion to set it aside is appealable. That was the old
jurisprudence.
Now, wala na. An order denying a motion to set aside a
judgment by compromise is not appealable. Ano ang
remedy? According to the SC in one case the remedy is an
action for annulment of the judgment before the CA under BP
129. And you file an original action in the CA for annulment of
Page 258 of 296
the judgment. And of course, based on the last par. of Sec. 1,
you can also resort to Rule 65, Special Civil Action..
(f) An order of execution;
The judgment has become final. The prevailing
party filed a motion to execute. Ministerial. It is the ministerial
duty of the court to order the execution.
Q: So the court will say, alright order. The judgment being
final, let a writ of execution issue. Can you appeal from
that order?
A: The SC said, no more. Why? If we will allow the losing
party to appeal from the order of execution, then there will
be no end to litigation. Kaya nga the case is finished.
Decided. Final. Execution follows automatically. Pag
appeal mo, that will be another round of litigation. So that
is the main reason. According to the SC, an order of
execution cannot be appealed, otherwise, there will be no
end to litigation.
Q: But suppose the order of execution contains portion
which are not found in the judgment? The order of
execution is changing the judgment which should not be
done.
A: Then obviously, the correct remedy is certiorari under
Rule 65 because of grave abuse of discretion on the part
of the judge.
(g) A judgment or
final order in separate claims, counterclaims,
cross-claims and third-party complaints, while
the main case is pending, unless the court
allows an appeal therefrom.
I think this was already touched. The best example of
the judgment or final order where there are separate claims is
found in Rule 36. We already discussed that. There would be
more than one judgment in a civil case. Can there be more
than one decision in one action? Yes. So, judgment in a
counterclaim, cross-claim, etc.
Q: Can you appeal already from the first judgment if there
would be a second judgment?
A: The general rule is NO.
Exception: Unless the court allows an appeal therefrom.
So when there are two or more judgments arising from the
same civil action, the general rule is you have to wait for all
the judgments to be rendered before you can appeal.
Sec. 4. Case not fully adjudicated
on motion. - If on motion under this Rule,
judgment is not rendered upon the whole case
or for all the reliefs sought and a trial is
necessary, the court at the hearing of the
motion, by examining the pleadings and the
evidence before it and by interrogating counsel
shall ascertain what material facts exist without
substantial controversy and what are actually
and in good faith controverted. It shall
thereupon make an order specifying the facts
that appear without substantial controversy,
including the extent to which the amount of
damages or other relief is not in controversy,
and directing such further proceeding in the
action as are just. The facts so specified shall be
deemed established, and the trial shall be
conducted on the controverted facts
accordingly. (4a, R34)
One good example of this was the ruling of the SC in the 1993
case of:
PROVINCE OF PANGASINAN vs. CA
This involves a partial summary judgment
under Rule 35, Sec. 4. I think we have
discussed that, no. When can there be
partial summary judgment? When some
portions of the claim can be genuinely
controverted and the rest are not genuinely
controverted. So the court is authorized to
render partial summary judgment on the
claim that there is no genuine issue and we
will continue trying the case with respect to
the claim where there is genuine issue.
There will be two judgments. A summary
judgment for one claim and ordinary
judgment for the other. So nauna yung
partial summary judgment. Can you
appeal from that?
And the SC said no. You have to
wait for the other judgment to come out.
That is a good example of par. (g). You
cannot appeal that partial summary
judgment while the main case is pending
unless the court allows appeal therefrom.
That is the exception. And finally, the last paragraph:
(h) An order dismissing an action without prejudice.
Q: What kind of order is not appealable?
A: If an action is dismissed without prejudice, it cannot be
appealed.
Q: Why?
A: Because since it is without prejudice, you can re-file the
case.
But suppose the dismissal is without prejudice. Because
sometimes you can say: Anyway, puwede ko namang i-refile.
It is still troublesome. You will have to pay docket fees all over
again. Suppose I will not refile. I will not question the order of
the court dismissing my case without prejudice. My remedy is
to refile it. But I will not do that. I want to challenge the order.
But I cannot appeal. So, Rule 65. Certiorari. That is the last
par. of sec. 1. That would be clearer when we study Special
Civil Actions.
Q: Sec. 2 is another new provision but actually the
principles are not new. How do you appeal from the RTC
to the CA?
A: Sec. 2 tells us that there are 3 possible appeals of the RTC to
a higher court.
(1) Ordinary appeal;
(2) Petition for review; and
(3) Appeal by certiorari.
Q: The first, ordinary appeal. How do you do it?
Sec. 2. Modes of appeal.
-
(a) Ordinary appeal. - The
appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its original jurisdiction shall be taken
by filing a notice of appeal with the court which
rendered the judgment or final order appealed
from and serving a copy thereof upon the
adverse party. No record on appeal shall be
required except in special proceedings and
other cases of multiple or separate appeals
Page 259 of 296
 where the law or these Rules so require. In such
cases, the record on appeal shall be filed and
served in like manner.
Just like in Rule 40. You file a notice of appeal in the
RTC. Copy furnished the losing party. I have already outlined
this last night. How about the record on appeal? No record
on appeal is required except in Special Proceedings and in
cases of multiple appeals where the law or these rules require.
So, that is on ordinary appeal. Ano naman yung tinatawag na
petition for review? Let us read par. (b):
(b) Petition for review. -
The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review in accordance with Rule 42.
Yes, we have already touched that in the Judiciary
Law.
Q: How do you appeal from the CA to the RTC in cases
decided by RTC pursuant to its appellate jurisdiction?
A: It is not ordinary appeal but by petition for review.
Q: How do you distinguish par. (a) from par. (b)?
A: Ordinary appeal vs. petition for review.
In par. (a), the case was decided by the RTC pursuant to its
original jurisdiction.
In par. (b), the case was decided by the RTC pursuant to its
appellate jurisdiction.
So, in par. (a), the case was originally filed and tried in the RTC.
Like for example an action for the recovery of a sum of money
amounting to P1M. Natalo ka. I want to go to the CA by
ordinary appeal.
We go to par. (b). The case is for recovery of a sum of
money amounting to P50T. Saan i-file? Sa MTC. You lose. Saan
ka pupunta? Next step. Sa RTC. How? Ordinary appeal under
Rule 40. Talo ka pa rin sa RTC. Aakyat ako ng CA. Ordinary
appeal? No. Petition for review. I think we already touched
that when we were still in the Judiciary Law. Petition for review
as a mode of appeal. But what is the difference? That will be
discussed in Rule 40, but definitely the mode of appeal is not
ordinary appeal but by petition for review. Now we go to par.
(c):
(c) Appeal by certiorari. -
In all cases where only questions of law are
raised or involved, the appeal shall be to the
Supreme Court by petition for review on
certiorari in accordance with Rule 45. (n)
This goes back again to the jurisdiction of the SC.
Constitution. The SC has exclusive appellate jurisdiction in
certain cases when the constitutionality of a law, treaty is in
issue. Tax cases, etc. Where jurisdiction of the court in this
issue. And the most important is when only questions of law
are being raised. Don’t confuse this with Rule 65.
So, the case is in the RTC, and I lost. I would like to
appeal on pure questions of law. Do not go to the CA. The
CA has no jurisdiction. You bypass. I will jump over the CA and
go direct to the SC because it belongs to the SC’s jurisdiction.
Q: So, if I want to go to the SC directly, how will you appeal?
Is it ordinary appeal? No. How?
A: Appeal by certiorari in accordance with Rule 45.
There are 3 modes of appeal, eh.
1. In ordinary appeal, from the RTC to CA.
2. In a petition for review, from the RTC, in the
exercise of its appellate jurisdiction going to the CA.
3. And the third is appeal by certiorari from the
RTC to the SC when the petition to be raised belongs
to the exclusive jurisdiction of the SC.
This is an outline of future rules. Because the whole petition for
review is Rule 42, Appeal by Certiorari is governed by Rule 45.
Alright. Now let’s go to sec. 3.
Sec. 3. Period of ordinary
appeal. - The appeal shall be taken within
fifteen (15) days from notice of the judgment or
final order appealed from. Where a record on
appeal is required, the appellant shall file a
notice of appeal and a record on appeal within
thirty (30) days from notice of the judgment or
final order.
The period of
appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
That is the same as Rule 40. The language is the
same. Period to appeal is 15 days except where a record on
appeal is required where the period to appeal is doubled.
As discussed earlier, there are three periods to appeal: 15
days, 30 days and 48 hours. The period is not extendible and a
pro forma motion won’t interrupt the running period of the
appeal and the period is also not extendible.
Q: Is the period to appeal, 15 or 30, subject to interruption?
A: Yes. It can be interrupted by the filing of a motion for
new trial or a motion for reconsideration. We know that.
Provided that the motion for new trial or reconsideration is
not pro forma. Then, no motion for extension of time to file
a motion for new trial or reconsideration shall be allowed.
Q: Here is an interesting question: You are the lawyer for a
party and you received a decision adverse to you on
March 31. You have 15 days to appeal. On April 10, you
filed a motion for new trial or reconsideration. Your motion
is not pro forma. On April 20, you received the order of the
court denying your motion for reconsideration. What is
your deadline to file your notice of appeal? April 25?
Why?
A: March 31 to April 10, ten days. March 10 to March 20,
not counted. So, 5 days to go so you arrived at April 25. Is
that correct? Let us go back to Rule 22, Computation of
time:
Sec. 1. How to compute time. - In
computing any period of time prescribed or
allowed by these Rules, or by order of the court,
or by any applicable statute, the day of the act
or event from which the designated period of
time begins to run is to be excluded and the
date of the performance included. xxx
The day of the act that caused the interruption shall
be excluded. What is the act which caused the interruption in
the running of the period to appeal? The filing of the motion
for reconsideration on April 10. So, as of April 10, interrupted
na. Therefore, from March 31 to April 10, legally, you did not
consume 10 days. You only consumed 9. Therefore, when you
received the order denying your motion on April 20, you have
6 days more. Not 5. So, the deadline actually is April 26.
Page 260 of 296
The best illustration of this is the 1995 case of:
LAVITAD vs. CA
246 SCRA 434
The SC explained that the day
when you file your motion for new trial or
reconsideration is not counted anymore.
Interrupted na. The period to appeal is
suspended if a motion for reconsideration or
one for new trial is filed which if denied
continues to run upon receipt of the order
denying the same as if no interruption has
occurred. The time within which a motion
for reconsideration or one for new trial is
pending shall be counted from the day the
motion is duly filed to the date when the
movant is duly notified of the denial thereof.
The period during which the motion is
pending with the trial court includes the day
the motion is filed because the motion shall
have already been placed under the
court’s consideration during the remaining
hours of the day. The very day the motion
fore reconsideration is filed, should be
excluded from the appeal period.
Another interesting case law on this motion for
reconsideration is the case of:
RUBIO vs. MTCC Br. 4, CAGAYAN DE ORO
CITY
252 SCRA 172 (1996)
The period to file a motion for new
trial or reconsideration is within the period to
appeal which is 15 days. Kaya there is no
extension. This is what happened. The
court issued an interlocutory order. After 2
months, one of the parties filed a motion for
reconsideration. And of course, the other
party said: No more. You cannot file on the
16th day. Is that correct?
The SC said that is wrong because
interlocutory order cannot be appealed.
So, the 15 day has stopped by. You can file
a motion for reconsideration anytime for as
long as the court still has jurisdiction over the
case. So, when the law says the motion for
reconsideration or new trial should be filed
and there is no extension, it means the order
is final. But when the order is interlocutory,
you can file it anytime because there is no
definite period for the court to change it.
The SC said: The period subject to
interruption by a motion for reconsideration
is the period to appeal. An interlocutory
order is not appealable. And there is
accordingly no period to suspend or
interrupt.
NEYPES vs. CA
469 SCRA 633 (September 14, 2005)
Under Rule 41, Section 3, petitioners
had 15 days from notice of judgment or final
order to appeal the decision of the trial
court. On the 15th day of the original appeal
period (March 18, 1998), petitioners did not
file a notice of appeal but instead opted to
file a motion for reconsideration. According
to the trial court, the MR only interrupted the
running of the 15-day appeal period. It ruled
that petitioners, having filed their MR on the
last day of the 15-day reglementary period
to appeal, had only one (1) day left to file
the notice of appeal upon receipt of the
notice of denial of their MR. Petitioners,
however, argue that they were entitled
under the Rules to a fresh period of 15 days
from receipt of the “final order” or the order
dismissing their motion for reconsideration.
To standardize the appeal periods provided
in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of
15 days within which to file the notice of
appeal in the Regional Trial Court, counted
from receipt of the order dismissing a
motion for a new trial or motion for
reconsideration.
Henceforth, this “fresh period rule” shall also
apply to Rule 40 governing appeals from
the Municipal Trial Courts to the Regional
Trial Courts; Rule 42 on petitions for review
from the Regional Trial Courts to the Court
of Appeals; Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals
and Rule 45 governing appeals by certiorari
to the Supreme Court. The new rule aims to
regiment or make the appeal period
uniform, to be counted from receipt of the
order denying the motion for new trial,
motion for reconsideration (whether full or
partial) or any final order or resolution.
This pronouncement is not inconsistent with
Rule 41, Section 3 of the Rules which states
that the appeal shall be taken within 15
days from notice of judgment or final order
appealed from. The use of the disjunctive
word “or” signifies disassociation and
independence of one thing from another.
It should, as a rule, be construed in the
sense in which it ordinarily implies.[33]
Hence, the use of “or” in the above
provision supposes that the notice of
appeal may be filed within 15 days from the
notice of judgment or within 15 days from
notice of the “final order,” which we
already determined to refer to the July 1,
1998 order denying the motion for a new
trial or reconsideration.
Neither does this new rule run counter to the
spirit of Section 39 of BP 129 which
shortened the appeal period from 30 days
to 15 days to hasten the disposition of
cases. The original period of appeal (in this
case March 3-18, 1998) remains and the
requirement for strict compliance still
applies. The fresh period of 15 days
becomes significant only when a party opts
to file a motion for new trial or motion for
reconsideration. In this manner, the trial
court which rendered the assailed decision
is given another opportunity to review the
case and, in the process, minimize and/or
rectify any error of judgment. While we aim
to resolve cases with dispatch and to have
judgments of courts become final at some
definite time, we likewise aspire to deliver
justice fairly.
In this case, the new period of 15 days
eradicates the confusion as to when the 15-
day appeal period should be counted –
from receipt of notice of judgment (March
Page 261 of 296
 3, 1998) or from receipt of notice of “final
order” appealed from (July 22, 1998). To
recapitulate, a party litigant may either file
his notice of appeal within 15 days from
receipt of the Regional Trial Court’s decision
or file it within 15 days from receipt of the
order (the “final order”) denying his motion
for new trial or motion for reconsideration.
Obviously, the new 15-day period may be
availed of only if either motion is filed;
otherwise, the decision becomes final and
executory after the lapse of the original
appeal period provided in Rule 41, Section
3.
Let us now go to the next section:
Sec. 4. Appellate court
docket and other lawful fees. - Within the period
for taking an appeal, the appellant shall pay to
the clerk of the court which rendered the
judgment or final order appealed from, the full
amount of the appellate court docket and other
lawful fees. Proof of payment of said fees shall
be transmitted to the appellate court together
with the original record or the record on appeal.
(n)
What is the counterpart there in the previous rule?
Sec. 5, no? When you appeal from the MTC to the RTC , within
15 days you already pay the docket fees. That is new. Under
the old rule, you must file your notice of appeal. Wala pang
docket fee. And then later, the CA will send you a notice.
Bayaran mo na ang docket fee. That is mga 6 months later
pa. Saka ka pa magbayad. Ngayon, hindi na. Pag-file mo,
bayad kaagad. And as we shall see, if you do not do that,
your appeal will be dismissed. Kaya nga ang requirements,
hindi lang notice of appeal kundi pati payment of docket
fees.
Sec. 5. Notice of appeal.
- The notice of appeal shall indicate the parties
to the appeal, specify the judgment or final
order or part thereof appealed from, specify the
court to which the appeal is being taken, and
state the material dates showing the timeliness
of the appeal. (4a)
The counterpart there in the previous rule is Sec. 3.
Ganito yan: Defendant hereby serves notice that he is
appealing to the CA from the judgment rendered by this court
dated March 15, 1998, a copy of which was received by him
on March 20, 1998 on questions of fact and law. You must
state the exact date when you received it. Because the
computation of the 15 day period is not from the date of the
decision but the date when you receive the copy. Tapos,
appealing on questions of fact, or mixed questions of fact and
law. Very short, no. Kaya nga the period to file an appeal is
non-extendible. That is fair because you do not need 15 days
to prepare that. . You only need 5 or 10 minutes lang.
HEIRS OF MAXIMO REGOS vs. CA
211 SCRA 348
Plaintiff filed an action against
defendant for partition of property. While
the action was pending, defendant died.
This is an action which survives. Defendant’s
lawyer however failed to inform the court
about his death. Di ba we know of the duty
of the lawyer. He should inform the court
but he did not. So the case continued
against the deceased. So with that, there
was no proper substitution. Later, judgment
was rendered against the deceased
defendant. The lawyer of the defendant
filed a notice of appeal in behalf of the
deceased defendant in accordance with
Rule 41.
(1) Was the appeal properly
made?
The SC said no. Upon the death of
the defendant, the lawyer’s authority to
represent him also expired. Legal Ethics, di
ba. The notice of appeal which the lawyer
filed in behalf of the deceased was
unauthorized. Therefore, it is not valid.
(2) Is the judgment binding upon
the defendant’s heirs when they were not
substituted?
The SC said yes. The validity of the
judgment is not affected by the
defendant’s demise because the action is
one that survives. The decision is binding
and enforceable against the successors in
interest of the deceased litigant by the title
subsequent to the commencement of the
action pursuant to Sec. 47 of Rule 39 on res
judicata. So, even if there was no
substitution, it binds his heirs.
The general rule is that to appeal, you only file a
notice of appeal and the you pay the docket fees. The
important requirement there is the notice of appeal. But we
said, in some civil cases, aside from a notice of appeal, there is
another requirement, yung tinatawag na record on appeal.
This time the period to appeal is 30 days. And a record on
appeal is only required in special proceedings or in civil cases
where multiple appeal is allowed. Never mind special
proceedings. Saka na yan. Civil cases where multiple appeal
is allowed. Yan ang importante.
Normally, in a civil case a record on appeal is not
required except in civil cases where multiple appeal is
allowed. Again, it sounds strange because based on what we
have studied so far, multiple appeals are not allowed in civil
cases. There should only be one appeal. Kaya nga
interlocutory orders are not appealable precisely to avoid
more than one appeal in a civil case. So, you wonder now.
Ano bang example nitong multiple appeals? We will go to
that step by step. But first, you must know exactly how a
record on appeal looks like. Let us read Sec. 6:
Sec. 6. Record on
appeal; form and contents thereof. - The full
names of all the parties to the proceedings shall
be stated in the caption of the record on appeal
and it shall include the judgment or final order
from which the appeal is taken and, in
chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the proper
understanding of the issue involved, together
with such data as will show that the appeal was
perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall
include by reference all the evidence,
testimonial and documentary, taken upon the
issue involved. The reference shall specify the
documentary evidence by the exhibit numbers
or letters by which it was identified when
Page 262 of 296
 admitted or offered at the hearing, and the
testimonial evidence by the names of the
corresponding witnesses. If the whole testimonial
and documentary evidence in the case is to be
included, a statement to that effect will be
sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits.
Every record on appeal exceeding twenty (20)
pages must contain a subject index. (6a)
A record on appeal is simply a reproduction of all the
pleadings filed by the parties, all the motions filed by parties,
all the orders issued by the court and the final judgment
rendered by the court arranged in chronological order. In
other words, many things are filed in court while the case is
going on. These pleadings are actually filed on different
dates. Of course, they are attached to the record. Now, sa
record on appeal, kopyahin mo lahat yan pero i-arrange mo
isa-isa from the complaint to the judgment. It should be noted
that Record on Appeal applies only in special proceedings
such as adoption, settlement of estate, habeas corpus or
change of name.
Let us go to a simple record on appeal: Juan dela
Cruz vs. Pedro Santos. Record on Appeal. It normally starts
with this phrase: Be it remembered, the following proceedings
took place in the court below. Par. 1: On January 5, 1998,
plaintiff filed a complaint against defendant as follows ...:
Kopyahin mo yung complaint: Comes now the plaintiff
through counsel, ganyan, ganyan... It is practically
mechanical work. Kopya nang kopya. Par. 2: On January 25,
1998, defendant filed an answer. Kopyahin na naman yung
answer. Then, par. 3: On March 5, 1998, the court rendered its
judgment quoted as follows ... So, copy na naman. The
pleadings, the motions, the order. Just imagine gaano
kakapal yan. Like if the case lasted for 2 years where every
week there is a motion filed, may denial, etc. Practically, the
record on appeal will amount to more than a hundred pages.
So, ang preparation, matagal. That is why the period to
appeal is increased to 30 days if the law requires a record on
appeal. It is even extendible. The 15 day period is not
extendible but the period to file a record on appeal can even
be extended.
Q: Do you have to include there every order, every motion
of the case?
A: No. The law says you reproduce in chronological order
copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed
judgment or final order for the proper understanding of the
issue involved. Pleadings, motions, orders which are related
to the case which are necessary for the court to
understand what happened. I think a motion to dismiss is
important no. Like an order of the court denying motion to
dismiss, yan importante yan. because this is part of the
cause of action.
But there are some motions, some orders na hindi na
kailangan. Because they are not involved in the issues in the
case. For example, I’ll give you a motion, or an order na hindi
masyadong importante. Hindi na kailangang i-reproduce yan.
For example, a case will be set for trial next week, one week
from now. Sabi ng counsel for plaintiff, motion to postpone
because I am suffering from LBM. And so the court issued an
order on the ground that the lawyer for the plaintiff has LBM.
The trial was postpone to another date. Kailangan pa bang i-
apil yong motion to postpone because of LBM? That is not
necessary to understand the issue. Kaya, pipiliin mo talaga eh.
Hindi naman kailangan lahat isali mo. Yon lang importante in
order to understand the issue involved. That is how the record
on appeal looks like. And that is required in civil cases, Special
Proceedings in civil cases where the record on appeal is
allowed.
Q: What civil cases allow multiple appeals?
A: Actually, based on what we learned multiple appeals
are prohibited. For the reason that interlocutory orders are
not appealable. You have to wait for the final judgment
and have only one appeal from the judgment. That’s
precisely intended to avoid, to prevent multiple appeal.
Q: But there are some instances when the court allows
more than one appeal in the same civil action. Alright.
When did it happen?
A: The best example, because this was already decided by
the court in one case, is the provision of Rule 36, Sec. 4.
Where there could be several judgments arising from one
action.
Sec. 4. Several judgments. - In an
action against several defendants, the court
may, when a several judgment is proper, render
judgment against one or more of them, leaving
the action to proceed against the others. (4)
So, there could be two or more judgments arising in
one civil action. Now, example is Sec. 4 of Rule 36. Let’s be
more specific. Give a specific case. One of the good cases to
illustrate this was the case of:
MUNICIPALITY OF BIÑAN vs. GARCIA
180 SCRA 576
The municipality of Biñan filed an
expropriation case against several
landowners in the town where the
municipality would like to expropriate their
land for public use. So, dikit-dikit man sila.
Let’s say landowner A, B, C, D dikit-dikit. So
file-lan sila ng kaso. All of them were named
as co-defendants in one complaint. So, let
us say four or five landowners. Now,
landowner A filed a motion for a separate
trial under Rule 31. You can ask for a
separate trial. Unahin mo ang aking kaso.
So the court granted it. So, there was a
separate trial against landowner A. And
after a separate trial, the court rendered a
decision ordering the expropriation of the
land of A. How about the other
landowners? The case will continue with
respect to landowners B, C, D. But yong as
far as A, tapos na. So, that is the case where
there will be at least two judgments. Now,
the question is this. Can A, appeal already
the decision against him, or should he wait
for the decision against the other
landowners? Puwede na bang mag-appeal
si A? Or must he wait for the decision to be
rendered by the court against B, C and D
before he can appeal?
The SC said, you appeal because
that is already a final judgment against you.
But there is still something more for the court
to do. And the court said, yes, there is still
something more for the court to do with
respect to the other defendants. But as far
as you are concerned, there is nothing
more for the court to do because the court
has already ruled against you. So, you can
appeal. That is a final judgment which is
appealable. Then we will continue the trial
with respect to B, C, and D. in the event of
an appeal the records would have to stay
in the Trial Court for the other defendants.
And suppose there will be another decision.
Can B, C and D appeal? Yes. Because that
is another final judgment. There would be
two final judgments. So, there could be
final appeals. That is an example of a case
where two or more appeals can come from
Page 263 of 296
 the same case. In civil action where there
are two or several judgments in
accordance with Sec. 4 of Rule 36.
Q: Suppose the case was tried against all of them. Sabay-
sabay. The case was tried against A, B, C and D. And there
is one decision against A, B, C, and D.
A: Well, sabay-sabay na sila mag-appeal. There is only
one judgment.
Q: Is a record on appeal required?
A: No. Only a notice of appeal because there is only one
decision.
But if there are now two decisions. And advance decision
against A and a future decision against the other
landowners. Then, if A wants to appeal, and he appealed
because that was a final judgment, aside from a notice of
appeal, there should be a record on appeal.
Q: Why is it that in ordinary civil case, ordinarily, a record on
appeal is not required?
A: The reason is this. Ordinarily, when the case is over and
you say that you are appealing, the entire record of the
case will be elevated to the CA. Now, the clerk of court of
the RTC is suppose to transmit all the records of the case na
nandoon. So, the complaint will be there, the answer. But,
in the case of MUNICIPALITY OF BIÑAN vs. GARCIA, there is
a judgment against landowner A and he wants to appeal,
the record cannot be brought to the CA because the case
is still to be tried with respect to b, C, and D. Tuloy pa man
ang trial. So, you cannot bring the records to the CA.
Q: But how will the CA know what happens?
A: The CA has to get a copy of the complaint, the answer
to understand the case. Then resolution. Kopyahin mo
lahat yan. You reproduce everything. And that is the one
to be brought to the CA. And when you copy everything,
that is what you call a record on appeal. So, it’s a
reproduction. That is the reason why the record on appeal
is required in civil actions where multiple appeals are
allowed.
That is very rare. Multiple appeals, generally, are not
allowed except in those cases where they are allowed, like the
MUNICIPALITY OF BIÑAN vs. GARCIA. There is another recent
case where the SC mentioned expressly what are civil actions
where multiple appeals are allowed. The case of:
ROMAN CATHOLIC ARCHBISHOP OF MANILA
vs. CA
258 SCRA 186 (July 5, 1996)
This is what the court said: Multiple
appeals are allowed in special
proceedings, in actions for recovery of
property with accounting, in actions for
partition of property with accounting, in
special civil actions of eminent domain
(expropriation), and foreclosure of
mortgage.
In other words, the court mentioned specifically the
rational of allowing more than one appeal in the same case is
to enable the rest of the case to proceed in the event that a
separate but the same issue is resolved by the court and have
to be final. Actions for recovery of property with accounting,
actions for partition of property with accounting. These are
cases where multiple appeals are allowed. These were taken
from the ruling of the SC in the case of:
MIRANDA vs. CA, 71 SCRA 295 (1976)
DE GUZMAN vs. CA, 74 SCRA 222 (1976)
So, these are taken from jurisprudence. Give and
example for eminent domain or expropriation where multiple
appeals are allowed. The more recent case of MUNICIPALITY
OF BIÑAN vs. GARCIA is already mentioned there.
In addition to this, Rule 39, sec 4 provides that:
judgments in actions for injuction, receivership, accounting &
support & such other judgments as are now or may hereafter
be declared to be immediately executory, shall be
enforceable after their rendition & shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court.
So, you understand what, how a record on appeal
looks like. How it looks like and what purpose does it serve?
Normally, when in appeals in these types of cases, a notice of
appeal will not suffice. If you file a notice of appeal without a
record on appeal, your appeal will be dismissed. Kulang e. It
did not comply with all the requisites.
Two years ago, late 1996, there is a special
proceeding here. Settlement of probate of a will. Last will and
testament where I filed the composition. I composed the
probity will on grounds under the Civil Code. That there was no
valid will. I will not mention the name. Sa galit nong tatay sa
anak niyang babae, ang binigay niya yong pinakamalayong
property. Doon ka sa Sirawan. Yong property ko doon na
malapit sa ilog. But yong town proper, lahat ng anak niya
binigyan. Yong anak na babae, sakit ang loob niya. Actually,
she was not disinherited but she was given the worst share
under the law on Succession.
I asked her, Bakit ba galit ang tatay mo sa iyo?
Because my husband and my father quarreled. And my
father expected me to side with him, during his lifetime, he was
even telling me hiwalan ko raw ang asawa ko and he will send
me to the States. Doon ako mag-aral, doon ako magpasyal,
etc. But she stuck it out with her husband. So, ganoon,
binigay sa kanya yung Sirawan property. So, she suffered
sleepless nights because of that. When I read the will, I told her
there is something wrong with it. I cannot for the moment
detect it but I’m sure may mali. Yan ang tinatawag na stock
knowledge, hindi mo malimutan yan. Give me 2 days, I asked
her.
So, I looked at the Civil Code at nakita ko nga. But
the next problem was to know whether the defect was
substantial or formal. because if it is formal, the will is still valid.
But if the defect is substantial, it renders the will null and void.
So, I looked at decided cases. Substantial. So, I filed an
opposition. And after hearing, the RTC of Davao City
declared the will as null and void. Nag-appeal yung
petitioner. Within 15 days, he filed the notice of appeal. I
noticed wala mang record on appeal. Siguro, he will file it
later. Anyway, he has 30 days.
Tapos, one lawyer said: Dean, file ka ng motion to
dismiss. Walang record on appeal. Hindi man puwede yan
ba. I said no. Ang tingin ko, nalimutan lang niya yung record
on appeal requirement. but it is only the 5th day. Pabayan ko
muna yan because he has 30 days to prepare it. In other
words, that is in accordance with the principle: Do not expose
the error when the other party has still time to correct it. Yan.
Then the court issued an order. Let the appeal be deliberated.
Naloko na. Pati ang court nakalimot sa requirement.
So, after the lapse of 30 days, I told the court,
nagkamali yata kayo sa order ninyo. But I cannot prove.
Special proceeding ito. It is not a civil action. Probate of a
will. Dapat mayroong record on appeal. Why did you not
bring it up earlier? If I bring it out immediately, the other party
will detect the mistake. Ma-correct pa niya. Ganito na lang
para walang mapahiya, mapahiya pati yung judge, eh. So, I
had to talk to the lawyer of the other side. I-withdraw mo na
lang ang appeal mo. Otherwise, I will file a motion to dismiss
your appeal. But that will embarrass you and the court.
Ganoon ang nangyari. Walang napahiya. A notice of
appeal without a record on appeal is not sufficient in those
cases where a record on appeal is required.
Page 264 of 296
 Now, baliktarin natin. Merong decided case noon
where the party filed a record on appeal without a notice on
appeal. Baliktad. Should the appeal be dismissed? Normally,
the answer is yes because there are 2 requisites and you only
complied with one. But the SC said in that case which was
decided long ago and which was asked in the bar: No, we
will not dismiss the appeal. Why? Because the filing of the
record on appeal is more expressive of the desire of the party
to appeal. Mas makapal ito. Yan manipis. So, that was what
the SC said.
Sec. 7. Approval of
record on appeal. - Upon the filing of the record
on appeal for approval and if no objection is
filed by the appellee within five (5) days from
receipt of a copy thereof, the trial court may
approve it as presented or upon its own motion
or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted
matters which are deemed essential to the
determination of the issue of law or fact involved
in the appeal. If the trial court orders the
amendment of the record, the appellant, within
time limited in the order, or such extension
thereof as may be granted, or if no time is fixed
by the order within ten (10) days from receipt
thereof, shall redraft the record by including
therein, in their proper chronological sequence,
such additional matters as the court may have
directed him to incorporate, and shall thereupon
submit the redrafted record for approval, upon
notice to the appellee, in like manner as the
original draft. (7a)
What you have to remember here is that in appeals
where a record on appeal is required, the law requires an
approval. The record on appeal has to be approved in court.
How about in ordinary cases where you only file a notice of
appeal? Wala. Hindi kailangan. Because sometimes that can
be abused. From time to time, I receive orders from the local
court where appeal is made by a notice of appeal in
accordance with the general rule. A notice of appeal having
been filed by the defendant within the reglementary period,
the notice of appeal is hereby approved. Sabi ko, saan kaya
kinuha ng court ito? The only requirement under the rules is
approve the record on appeal. There is no necessity of
approving a notice of appeal. And of course, under Sec. 9,
we will see the importance of the approval.
Q: Do you know why a record on appeal has to be
approved?
A: Because the other party is given the right to object to your
record on appeal.
Q: What are the possible grounds for objection?
A: Kulang-kulang. There are important motions or
pleadings which are not reproduced. Di ba sabi ko a
record on appeal must reproduce in chronological
sequence all the motions, pleadings, orders which are
necessary for the understanding of the CA. Eh, kulang-
kulang. Intentionally, he missed some important motions.
So, I will object. So, the court will say: Kulang nga. Ulitin
mo. Until there will be more objections. That is the time the
court will approve it. Or, you did not reproduce the
pleading correctly. There are some missing paragraphs or
sentences. These are grounds. Kaya ako I have to hire a
secretary. Basahin mo nga ito line by line. So tedious nga.
Pati wrong spelling. Noong una, wala pang computer. So,
mahirap talaga. But you really can do that. I will object.
Wrong spelling. This things can be brought up just to grant
approval.
Sec. 8. Joint record on
appeal. - Where both parties are appellants,
they may file a joint record on appeal within the
time fixed by section 3 of this Rule, or that fixed
by the court. (8a)
Q: Puwedeng both sides will appeal?
A: Yes, when both are not satisfied. Now, suppose both of
us will appeal and a record on appeal is required, it would
be tedious. We will prepare a joint record on appeal para
wala ng gulo. Hati pa tayo sa gasto. Because you do not
need 2 records on appeal.
Sec. 9. Perfection of
appeal; effect thereof. - A party’s appeal by
notice of appeal is deemed perfected as to him
upon the filing of the notice of appeal in due
time.
A party’s appeal
by record on appeal is deemed perfected as to
him with respect to the subject matter thereof
upon the approval of the record on appeal filed
in due time.
In appeals by
notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals
filed in due time and the expiration of the time to
appeal of the other parties.
In appeals by
record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the
approval of the records on appeal filed in due
time and the expiration of the time to appeal of
the other parties.
In either case,
prior to the transmittal of the original record or
the record on appeal, the court may issue
orders for the protection and preservation of the
rights of the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent
litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow
withdrawal of the appeal. (9a)
The parties appeal. A party’s appeal by notice of
appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time. xxx In appeals by notice of
appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration
of the time to appeal of the other parties. This is a reproduction
of the old provision but there are some changes. The changes
in the new law have been brought about by jurisprudence on
when an appeal is deemed perfected. This incorporates the
ruling of the SC in previous cases among which was the
leading case of:
BELGADO vs. IAC
147 SCRA 258
The important question here is this:
For example I receive a copy of the
decision on March 31. Until when can I
appeal? Up to April 15. My opponent
received the decision on April 10. Hindi
man talaga magkasabay yan because the
court server might give you a copy later.
So, ang bilang ko ng 15 days is from March
31 to April 15. Yung kabila naman,
natanggap niya April 10, ang bilang niya up
to April 25. So, iba yung 15 days ko. Iba
yung 15 days niya. Since I received the
decision on March 31, I filed my notice of
appeal April 5. Is the appeal perfected?
Yes, as far as I am concerned. 50%
Page 265 of 296
 perfected. How about the other side? Not
yet because as of April 5, he has not yet
received a copy of the decision. He will
start computing on April 10. So, as far as he
is concerned, the appeal is not yet
perfected 100%.
Now suppose I filed my notice of
appeal April 5. Siya naman, natanggap
niya ang decision April 10. So, iba ang
bilang sa kanya. April 25, he did not file
anything. Nag-expire na. Then as of April
25 the appeal is now fully perfected, 100%.
Because as far as I am concerned, the 15
day period for him to appeal has lapsed
therefore the case is now ripe for elevation.
That’s what the 3rd paragraph says. In
appeals by notice of appeal, the court loses
jurisdiction over the case upon the
perfection of the appeals filed in due time
and the expiration of the time to appeal of
the other parties. Because you have to look
at it from the viewpoint of 2 parties.
That is why when I receive an order of the court,
nakalagay doon: The notice of appeal having been filed on
April 5, the appeal is hereby declared as perfected and
elevate the record on appeal to the CA. It is premature. Ang
tiningnan mo yung side ko lang. Tingnan mo rin ang sa kabila
what will you do within the 15 days. Will you appeal or not?
Pagnag-appeal na ako, nag-expire na yung sa kanya, and
you did not do anything, that is the time the appeal is
perfected. The court loses jurisdiction over the case.
Q: The preliminary question is what is the effect when an
appeal is deemed perfected?
A: The important of a perfected appeal according to Sec.
9 is that from the moment the appeal is deemed
perfected, the trial court automatically loses jurisdiction
over the case. So, the RTC automatically loses jurisdiction.
Q: Where did the jurisdiction go?
A: By fiction of law, jurisdiction is automatically transferred
to the CA. So, that is the effect. So that if the RTC has no
more jurisdiction over the case, then technically it can no
longer act I that case. Every other action must be done by
the CA. So that is the importance in determining the exact
date when the appeal is deemed perfected.
Q: So the next question is when is the appeal deemed
perfected?
A: Let us divide the question into 2 parts.
An appeal where only a notice of appeal is required which
is the general rule and an appeal where a record on
appeal is required which is the exception.
According to the first paragraph of Sec. 9, a party’s appeal by
notice of appeal is deemed perfected as to him upon the
filing of the notice of appeal in due time. Take note, deemed
perfected as to him. Sinong him? The one who filed the notice
of appeal.
And then the third paragraph says: In appeals by
notice of appeal, the court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
Therefore, there are 2 parts: (1) the appeal is deemed
perfected from one viewpoint, the one filing the notice of
appeal, and (2) the court loses jurisdiction after the expiration
of the time to file by the other party. Alright, we will illustrate
that:
A vs. B. B lost. On March 31, B received a copy of the
decision. So, B has until April 15 to file the appeal. On April 5, B
filed a notice of appeal. Is the appeal perfected? Yes, as far
as B is concerned. Did the court lose jurisdiction over the case?
Not yet. Even if the appeal has been perfected, the court has
not yet lost jurisdiction because it is only insofar as B is
concerned.
Now, April 20, A received copy of the decision. From
the viewpoint of A, the 15 day period starts from April 20.
Kailan matapos yan? May 5, di ba? What can A do between
April 20 to May 5? For all you know, A may also appeal. Even
if he won, he might have been satisfied with the decision.
That’s a possibility. Another possibility, A can also file a motion
for new trial. And even if he won, he may not be satisfied and
he can file a motion for reconsideration. Or, he may file a
motion to execute pending appeal.
If we say the appeal is perfected as of April 5 when the losing
party received a copy of the decision and the court lost
jurisdiction over the case as of April 5, then definitely, the court
can no longer act on any other motion like a motion to
execute pending appeal, as motion for reconsideration
because of the perfected appeal. It is only perfected insofar
as A is concerned. It is not perfected as far as B is concerned.
In other words, A still has time to move for reconsideration or
file a motion to execute pending appeal. In which case, the
court has not yet lost jurisdiction over the case.
Now, suppose from April 20 to May 5, A did not do
anything because anyway, he is satisfied with the decision. He
did not move to reconsider, he did not appeal, he did not file
a motion to execute pending appeal. So, after the expiration
of the 15 day period from the viewpoint of A, the appeal is
now completely perfected. Perfected from the viewpoint of B.
Perfected from the viewpoint of A. So, after May 5, the court
has lost jurisdiction over the case.
So the court must now order the elevation of the
record to the CA after May 5. Because as I said last night,
sometimes I am abused no. Situations like these where A filed
a case against B, A won and the court ordered to serve a
copy of the decision ahead. As of March 31, the lawyer of B
knows na natalo siya. But the lawyer of A does not of the
decision because the notice of appeal was not served.
Mabilis man ang lawyer ni B. On April 5, file kaagad nang
Notice of Appeal, then here comes an order of the court. The
appeal is hereby perfected. And elevate the records. That is
wrong. You have to wait for the expiration of the time of the
other party. It has not lost jurisdiction yet as of April 5 because
how about A pagtanggap ng complaint niya he has another
15 days to move to execute pending appeal. That’s what the
third par. means.
We will now go another interesting case. This is one
of the first case decided under the new Judiciary Law way
back in 1993. I am referring to the case of:
UNIVERSAL FAREAST CORPORATION vs. CA
131 SCRA 642
When is an appeal deemed perfected?
The appeal is perfected as to him upon the
filing of the notice of appeal, etc. That is
where sec. 9 comes from. This principle is
taken from various ruling of the SC after the
effectivity of the new Judiciary Law. This
was also taken from the ruling of the SC in
the case of:
EDGARDO VS. IAC
BPI vs. PHILIPPINE MOLASSES CORPORATION
ASSOCIATED BANK vs. GUNONG
The SC said: The court does not
lose jurisdiction over the case until the
expiration of the period to appeal by the
other party. You have to wait for the 15 day
period to expire from the viewpoint of the
winning party.
Page 266 of 296
 UNIVERSAL FAREAST CORPORATION
vs. CA
131 SCRA 642
On March 31, we will assume that
both A and B received a copy of the
decision. A won B lost. From the viewpoint
of both April 15 is the last day. On April 5, B
filed Notice of Appeal. So the appeal is
perfected from the viewpoint of B. Let’s say
April 13, A filed Motion to Execute pending
appeal. Remember discretionary
execution? With the period to appeal, the
prevailing party can file a motion to
execute pending appeal if there is a good
reason. Was the motion filed on time? Yes,
because A can file it between March 31 to
April 15. Definitely the Court cannot act on
the motion in two days. It must be set for
hearing pa. So what happened in this
case? The court on April 25, granted A’s
motion. When did A file his motion to
execute, April 13. When did the court get
the motion, April 25.
Here is now the argument of B. The order of
execution pending appeal is void because
the court has already lost jurisdiction over
the case as of April 25. Because really from
the viewpoint of both parties the last date is
April 15, di ba? So after April 15 the period
within which A can file a motion to execute
has expired. From the viewpoint of B, he
already filed a notice of appeal on April 5.
So from the viewpoint of both, the court has
already lost jurisdiction.
But according to A, “I filed my
motion on April 13. On April 13 the court has
not yet lost jurisdiction.” Sabi naman ni B,
“yes, but the court acted on the motion on
April 25 which is beyond April 15.” So what
is the position of B? The court should have
acted on the motion not later than April 15.
But the viewpoint of A no. What is
important is I filed it on April 15. The court
can act on that even after April 15. Now
who is right between the two? That was the
issue.
And the SC said: A is correct. The
important point is the date of the filing so
even if the court acts beyond the 15 day
period the order is still valid. What is
important is that the Motion to Execute
pending appeal was filed within the 15 day
period. It may be argued that the trial court
should dispose of the motion for execution
within the reglementary 15 day period. That
is the position of B. Such a rule would be
deemed difficult if not impossible to follow.
It would not be pragmatic and expedient
and would cause injustice. The Motion for
Execution should be set for hearing. The
judgment of the court should be heard. The
good reasons where execution pending
appeal have to be scrutinized. These things
cannot be done within a short period where
in this case, 2 days na lang. The trial court
may be confronted with other matters more
pressing that would demand its immediate
attention.
So in this case, the court has not yet lost jurisdiction
over the case to act on the motion to execute pending
appeal even if it is beyond 15 days provided the motion was
filed within the 15 day period. These are the important
principles and cases to remember in connection with the
effect of a perfected appeal where the court loses jurisdiction.
Q: How about an appeal where a record on appeal in
required? When is the appeal deemed perfected?
A: That is the 2nd par. of sec. 9. A party’s appeal by a
record on appeal is deemed perfected as to whom with
respect to the subject matter upon the approval of the
record on appeal filed in due time. So it is not upon the
filing of the record on appeal but upon the approval. As
we said last night in sec. 7, a record on appeal has to be
approved. A notice of appeal need not be approved.
Then the 4th par.: In appeals by record on appeal,
the court loses jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed in due time
and the expiration of the time to appeal of the other parties.
So, the principle is the same. But definitely an appeal is not
deemed perfected upon the filing of the record on appeal
but upon the approval. So that is the important distinction
between appeal by mere notice of appeal and appeal where
record on appeal is required.
The last point to remember about sec. 9 is that, we
said once an appeal is deemed perfected from both sides the
trial court loses jurisdiction over the said case and the
jurisdiction is automatically transferred to the CA.
Q: Are there exceptions to that rule? Are there certain
things that the trial court may still do even if it no longer has
jurisdiction over the case? What actions can the trial court
do despite the fact that it has already lost jurisdiction? The
answer is found in the last par. of sec. 9:
In either case, prior to the transmittal
of the original record or the record on appeal,
the court may issue orders for the protection and
preservation of the rights of the parties which do
not involve any matter litigated by the appeal,
approve compromises, permit appeals of
indigent litigants, order execution pending
appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal. (9a)
So those are the things which the trail court can still do even if
it no longer has jurisdiction. So let us now try to outline this
provision. Once an appeal is deemed perfected under sec. 9,
the RTC loses jurisdiction over the case and can no longer act
on that case.
Q: What actions may the RTC do in that case even if it has
lost jurisdiction?
A: for as long as the original record on appeal has not yet
been transmitted, because that will take time for these
records to be transmitted; the trial court despite the fact
that it has already lost jurisdiction can still perform the
following acts:
1. To issue orders for the
protection and preservation of
the rights of the parties which
do not involve any matter
litigated in the appeal;
2. To approve compromises
between the parties;
3. To permit appeals of
indigent litigants;
4. To order execution pending appeal in
accordance of sec. 2 of Rule 39 ; and,
5. To allow withdrawal of the
appeal.
So the court may issue orders to preserve and protect
the rights of the parties while the appeal is going on which do
Page 267 of 296
not involve any matter litigated in the appeal. Approved
compromises.
Q: Can the parties still settle amicably despite the fact that
there is already an appeal?
A: Yes, compromises is welcomed anytime.
Q: Now, who will approve the compromise?
A: Technically, the trial court has no more jurisdiction. For
as long as the records are still there the trial court can
approve the compromise. Now suppose the records are
already transmitted to the CA, then you can now submit
your compromise agreement to the CA. Permit appeals of
indigent litigants. People who cannot afford to pay the
expenses of an appeal. This is the case of UNIVERSAL
FAREAST CORP. Despite the fact that it is already April 15,
the trial court is still empowered to act, to grant or to deny
the motion to execute pending appeal. And finally, the
trial court may allow the withdrawal of the appeal. If the
records are already in the CA, the withdrawal of the
appeal should already be made in the CA.
Secs. 10, 11, and 12 are purely administrative
provisions. Please go over that..
Sec. 10. Duty of clerk of
court of the lower court upon perfection of
appeal. - Within thirty (30) days after perfection
of all the appeals in accordance with the
preceding section, it shall be the duty of the
clerk of court of the lower court:
(a) To verify the correctness of
the original record or the record on appeal, as
the case may be, and to make a certification of
its correctness;
(b) To verify the completeness
of the records that will be transmitted to the
appellate court;
(c) If found to be incomplete,
to take such measures as may be required to
complete the records, availing of the authority
that he or the court may exercise for this
purpose; and
(d) To transmit the records to
the appellate court.
If the efforts to
complete the records fail, he shall indicate in his
letter of transmittal the exhibits or transcripts not
included in the records being transmitted to the
appellate court, the reasons for their non-
transmittal, and the steps taken or that could be
taken to have them available.
The clerk of court
shall furnish the parties with copies of his letter of
transmittal of the records to the appellate court.
(10a)
Sec. 11. Transcript. - Upon
the perfection of the appeal, the clerk shall
immediately direct the steno-graphers
concerned to attach to the record of the case
five (5) copies of the transcripts of the testimonial
evidence referred to in the record on appeal.
The stenographers concerned shall transcribe
such testimonial evidence and shall prepare
and affix to their transcripts an index containing
the names of the witnesses and the pages
wherein their testimonies are found, and a list of
the exhibits and the pages wherein each of
them appears to have been offered and
admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of the
trial court who shall thereupon arrange the same
in the order in which the witnesses testified at the
trial, and shall cause the pages to be numbered
consecutively. (12a)
Sec. 12. Transmittal. - The
clerk of the trial court shall transmit to the
appellate court the original record or the
approved record on appeal within thirty (30)
days from the perfection of the appeal, together
with the proof of payment of the appellate court
docket and other lawful fees, a certified true
copy of the minutes of the proceedings, the
order of approval, the certificate of correctness,
the original documentary evidence referred to
therein, and the original and three (3) copies of
the transcripts. Copies of the transcripts and
certified true copies of the documentary
evidence shall remain in the lower court for the
examination of the parties. (11a)
Sec. 13. Dismissal of
appeal. - Prior to the transmittal of the original
record or the record on appeal to the appellate
court, the trial court may motu proprio or on
motion to dismiss the appeal for having been
taken out of time. (14a)
Q: May the trial court, the RTC dismiss an appeal?
A: Yes, for as long as the record on appeal has not yet
been transmitted to the Appellate Court. The trial court
may motu propio even without a motion or on motion to
dismiss, the trial court is empowered to dismiss the appeal.
Q: On what ground?
A: For having been taken out of time. meaning, the notice
of appeal was filed beyond 15 days or there was no record
on appeal. Or there was no appellate docket fee filed
within 15 days.
Q: In one decided case, the question asked was this: Can
the trial court dismiss on appeal on the ground that the
appeal is dilatory?
A: The SC said NO, the trial court has no power to say that
the appeal is dilatory. Only the CA can say that. The only
ground for the trial court to dismiss the appeal is that it is
filed out of time. That’s all.
Now do not confuse that question with a similar question
asked in Rule 39, Execution pending Appeal. Can the
prevailing party file a motion to execute pending appeal on
the ground that the appeal is dilatory? We asked that
question before. Any appeal is frivolous, intended to delay.
Can the trial court issue an order of execution pending
appeal. And I mentioned jurisprudence there. The trial court
cannot do that, only the CA can. But there are other cases
where the SC said yes. That is good reason. The trial court can
grant execution pending appeal on the ground that the
appeal is dilatory. At least mayroong kaso that the trial court
can grant the execution pending appeal if the appeal is
dilatory or frivolous, at least meron. Pero iba dito. The trial is not
really asked to grant the execution pending appeal but is
asked to dismiss an appeal, yan talaga and hindi puwede. So
do not confuse the question with this one.
Can the court grant execution pending appeal on the ground
that the appeal is frivolous, dilatory. Me yes me no. Can the
trial court dismiss an appeal on the ground that the appeal is
dilatory? Never, because of sec. 13, Rule 39. So those
questions should not confuse with each other.
End of Rule 41.
Page 268 of 296
 Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
Rule 42 is an entirely new rule. This is related to what
we have discussed In Rule 41. What are the modes of appeal
from the RTC to the CA? It’s either ordinary appeal or petition
for review. Ordinary appeal under Rule 41 but if the case was
decided in the RTC pursuant to its original jurisdiction so CA,
RTC. Ano yan ordinary appeal governed by Rule 41. But
suppose ganito, MTC to RTC, RTC to CA. Iba yan. Because
the RTC here is deciding pursuant to its appellate jurisdiction.
MTC to RTC, ordinary appeal, Rule 40. Ito naman, petition for
review Rule 42. Klaro no.
Before 1997, what was the mode of appeal from the
RTC to the CA. Also the same, petition to review with one
difference no na under the old law there was no provision in
the Rules of Court telling us the procedure in the petition for
review. Now there is. What was the procedure before. The
procedure before was taken from circulars of the SC,
jurisprudence but there was no exact guideline. Now at least
the new rules is clearer. You simply follow Rule 42. Although
we will not go to the individual sections because they are self-
explanatory, I am just going to cite the important points.
1st point: A petition for review under Rule 42 must be
verified as to form.
2nd point: Where will you file your petition for review?
You file it directly in the CA. Do not file it in the RTC, kaya
sometimes the procedures on appeal is confusing. Rule 41,
where the appeal is perfected by simply filing a notice of
appeal, you file your notice of appeal with the RTC you do not
file it with the CA. But in Rule 42 where the appeal is by
petition for review, you will file your petition for review directly
to the CA, do not file it with the RTC. Not only that. You also
have to pay the docket fees and you must post P500 for cost,
and you must furnish the RTC and the adverse camp with the
copy of the petition.
Q: Now failure to file a petition for review is also 15 days. From
what date?
A: Notice of the decision sought to be reviewed or of the
denial of petitioner’s motion for new trail or reconsideration
filed in due time after judgment.
Let us try to analyze that. Let us go back to Rule 41. ---
You received the order of the court denying your motion
for reconsideration. How many more days are there for
you to file your notice of appeal? 6 days. Ang binilang
mo 1 to 9 lang, 10 interrupted na, that’s true.
Q: We will now go to a similar problem. The case was decided
in the MTC and appealed to the RTC. In the RTC you lost
again and you received the copy of the RTC’s decision on
March 31. Same problem. On April 10, you filed a motion for
reconsideration. On the 10th day, April 10. On April 20, you
received the order your motion for reconsideration. How
many more days are there for you to file a petition for review?
Tapos sabihin mo, 6 days from April 20?
A: That is false. 15 days all over again. You look at the law.
The petition should be filed and served within 15 days from
notice of the decision. If you will not file any motion for
reconsideration. Or of the denial of the petitioner’s motion
for new trial or reconsideration we count 15 days from the
denial so umpisa na naman. The 15 say period starts to run
again so the filing a new motion or reconsideration in Rule
42 does not only interrupt the running of the period to
appeal but it commences to run all over again.
Unlike in Rule 41, in ordinary appeal, where the filing of a
motion for reconsideration or new trial merely interrupts the
running of the period to appeal and it commences to run
again from the time you are notified that your motion is
denied. That is the difference.
Actually, if you are not serious in your study of appeals you
won’t see these distinctions. You will just assume that the
principle under Rule 41 is the same as in Rule 42. A petition for
review is harder to make because it is like a memorandum.
Unlike a notice of appeal, maiksi lang.
Sec. 1. How appeal
taken; time for filing. - A party desiring to appeal
from a decision of the Regional Trial Court
rendered in the exercise of its appellate
jurisdiction may file a verified petition for review
with the Court of Appeals, paying at the same
time to the clerk of said court the correspond-
ing docket and other lawful fees, depositing the
amount of P500.00 for costs, and furnishing the
Regional Trial Court and the adverse party with a
copy of the petition. The petition shall be filed
and served within fifteen (15) days from notice of
the decision sought to be reviewed or of the
denial of petitioner’s motion for new trial or
reconside-ration filed in due time after
judgment. Upon proper motion and the payment
of the full amount of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the Court
of Appeals may grant an additional period of
fifteen (15) days only within which to file the
petition for review. No further extension shall be
granted except for the most compelling reason
and in no case to exceed fifteen (15) days. (n)
Q: Is the 15 day period to file a petition for review
extendible?
A: Under Rule 41, we learned the 15 day period to file a
notice of appeal is not extendible. But the 15 day period to
file a petition for review is extendible according to the last
sentence of sec. 1 provided you file your docket fees and
other lawful fees. The CA may grant an additional period
of 15 days only within which to file the petition for review.
Q: So where will you file your motion for extension of time to
file a petition for review?
A: CA.
Q: How many days more can the CA grant?
A: 15 days. No further extension shall be granted except
for the most compelling reason and in no case to exceed
15 days.
So original period, 15 days. Possible extension 15
days. Total 30. So remember these are technical points. And
how many appealed cases have been dismissed simply
because these provisions where not observed by the lawyer?
60%. Majority of petitions for review are dismissed, nakulangan
lang ng piso sa docket fee. Because the rules on appeal are
very technical and very strict.
The rule on appeal should be in line with the ruling of Neypes
vs. CA (September 2005) providing for a FRESH PERIOD RULE:
the period to appeal is 15 days all over again when
interrupted and not the remaining days only as in the previous
rules. This is to standardize appeals and to afford litigants more
time. This applies to all modes of appeal such as those in Rule
40, 42, 43 & 45. This aims to make appeal periods uniform.
Alright, as to the form and contents, Sec. 2 just read
that.
Sec. 2. Form and contents. - The
petition shall be filed in seven (7) legible copies,
with the original copy intended for the court
being indicated as such by the petitioner, and
shall:
(a) state the full names of the
parties to the case, without impleading the lower
Page 269 of 296
 courts or judges thereof either as petitioners or
respondents;
(b) indicate the specific material
dates showing that it was filed on time;
(c) set forth concisely a statement
of the matters involved, the issues raised, the
specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court,
and the reasons or arguments relied upon for the
allowance of the appeal;
(d) be accompanied by clearly
legible duplicate originals or true copies of the
judgments or final orders of both lower courts,
certified correct by the clerk of court of the
Regional Trial Court, the requisite number of
plain copies thereof and of the pleadings and
other material portions of the record as would
support the allegations of the petition.
The petitioner shall
also submit together with the petition a
certification under oath that he has not
theretofore commenced any other action
involving the same issues in the Supreme Court,
the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state
the status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom. (n)
Q: How many copies?
A: 7 legible copies
Q: Now, take note par c, sec. 2, the petition must set forth
the statement of the matters involved, the issues raised,
specifications of errors, errors of fact or law or both, so what
issues can be raised in a petition for review?
A: Errors of fact, errors of law or both.
Q: Now somebody asked this question. Di ba kung error of
law, sa SC lang yan, they do not pass the CA anymore?
How come dito error of fact, error of law or both? How do
you reconcile this with the Constitution?
A: Actually, when the law says decisions of the RTC are
appealable directly to the SC if it is decided pursuant to
its original jurisdiction. But if it is decided pursuant to its
appellate jurisdiction you also raise it in the CA without
prejudice of going to the SC later.
Another point to remember in sec. 2 is the 2nd par.
that the petition for review must contain a certification sworn
under oath, yong forum shopping. That you have not
commenced any action etc. In the case of Ortiz vs. CA, the
petiton for review was not signed by the clients but by his
lawyers. SC said that that was already substantial compliance.
Sec. 3, if you fail to comply your petition will be
dismissed.
Sec. 3. Effect of failure to comply
with requirements. - The failure of the petitioner
to comply with any of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the
contents of and the documents which should
accompany the petition shall be sufficient
ground for the dismissal thereof. (n)
Sec. 4. Action on the petition. - The
Court of Appeals may require the respondent to
file a comment on the petition, not a motion to
dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are
too unsubstantial to require consideration. (n)
Sec. 5. Contents of comments. -
The comment of the respondent shall be filed in
seven (7) legible copies, accompanied by
certified true copies of such material portions of
the record referred to therein together with other
supporting papers and shall
(a) state whether or not he
accepts the statement of matters involved in the
petition;
(b) point out such
insufficiencies or inaccuracies as he believes
exist in petitioner’s statement of matters involved
but without repetition; and
(c) state the reasons why the
petition should not be given due course.
A copy thereof shall be
served on the petitioner. (n)
Sec. 6. Due course. - If upon the
filing of the comment or such other pleadings as
the court may allow or require, or after the
expiration of the period for the filing thereof
without such comment or pleadings having
been submitted, the Court of Appeals finds
prima facie that the lower court has committed
an error of fact or law that will warrant a reversal
or modification of the appealed decision, it may
accordingly give due course to the petition. (n)
Sec. 7. Elevation of record. -
Whenever the Court of Appeals deems it
necessary, it may order the clerk of court of the
Regional Trial Court to elevate the original
record of the case including the oral and
documentary evidence within fifteen (15) days
from notice. (n)
Sec. 8. Perfection of appeal; effect
thereof. -
(a) Upon the timely filing of a
petition for review and the payment of the
corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses
jurisdiction over the case upon the perfection of
the appeals filed in due time and the expiration
of the time to appeal of the other parties.
However, before the Court
of Appeals gives due course to the petition, the
Regional Trial Court may issue orders for the
protection and preservation of the rights of the
parties which do not involve any matter litigated
by the appeal, approve compromises, permit
appeals of indigent litigants, order execution
pending appeal in accordance wit section 2 of
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 Rule 39, and allow withdrawal of the appeal. (9a,
R41)
(b) Except in civil cases
decided under the Rule on Summary Procedure,
the appeal shall stay the judgment or final order
unless the Court of Appeals, the law, or these
Rules shall provide otherwise. (n)
Sec. 9. Submission for decision. - If
the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within
a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself. (n)
Q: Now when is an appeal for petition for review deemed
perfected?
A: Sec. 8. Similar to Rule 41, upon the filing of petition for
review etc., the appeal is deemed perfected as to the
petitioner. The same principle. The RTC loses jurisdiction
upon the expiration of the appeal and the expiration of
the time to appeal by the other party. We have
discussed that already.
Q: Does the RTC have the power despite the fact that the
petition for review is in the CA?
A: YES, the same principle.
Q: I lose in the MTC. I lose in the RTC. I filed a petition for
review. What happens to the decision? Will the decision
be enforced?
A: Sec. 8, par. b, NO. The appeal shall stay the judgment
of final order unless the CA, the law or these rules provide
otherwise. Also based on the opening clause of sec. 8, b,
except in civil cases decided under the Rules on Summary
Procedure (forcible entry, unlawful detainer) any further
appeal to the CA may not stop the implementation of the
RTC’s decision.
Q: Before I forget, when you file a petition for review from
the RTC to the CA, will the CA entertain your petition for
review?
A: Sec. 6 says no. It may or may not give due course to
your petition. Yan ang kaibahan nang ordinary appeal at
tsaka petition for review. I think I mentioned this already
when we were discussing the Judiciary Law.
Alam mo, sa ordinary appeal, under Rule 41, talo ka mag file
ka nang notice of appeal, you pay your docket fee, your
appeal is automatically entertained. Even if your appeal is
crazy. At least it will be heard by the CA. But in Rule 42, NO.
When you go there you are not sure. Even if you pay for the
docket fee. Normally ang gagawin ng CA diyan ay you are
required to comment and then chances are after another
month, after reading your petition and your comment the CA
will refuse to give due course to your petition. Your petition is
hereby dismissed. You must convince the CA na may merit
ba.
Now you ask me, for every 100 petitions for review
filed in the CA how many are given due course? And how
many are denied? Based on statistics before, for every 100, 17
are given due course, 83 are thrown out. Walang siguro.
because it is discretionary under sec. 6 whether the CA will
entertain your appeal or not.
End of Rule 42.
Rule 43
APPEALS FROM THE COURT OF TAX APPEALS
AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Recall the Judiciary Law. Remember Sec. 9, the
jurisdiction of the CA. The CA has jurisdiction in what cases?
1. Petitions for Certiorari,
Prohibition, Mandamus, Quo
Warranto, Habeas Corpus whether
or not in aid of its appellate
jurisdiction.
2. Actions for Annulments of
judgments of ROTCs;
3. All final judgments,
decisions, resolutions, orders or
awards of ROTCs and quasi-
judicial agencies.
This is now the governing rule. So as a rule you
cannot appeal to the SC from the decision of an
administrative body. It’s the CA even on pure questions of law.
Q: But is it not a fact that in the Constitution when the error
to be raised is purely legal, the SC has exclusive appellate
jurisdiction?
A: Yes that is true but in cases decided by the courts, not
by quasi-judicial bodies. Doon ka muna sa CA, then later
on sa SC. But you have to pass to the CA.
Q: What are these agencies where the appeal should be to
the CA?
A: Sec. 1:
Sec. 1. Scope. - This Rule
shall apply to appeals from judgments or final
orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of
or authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions.
Among these
agencies are the Civil Service Commission,
Central Board of Assessment Appeals, Securities
and Exchange Commission, Office of the
President, Land Registration Authority, Social
Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration,
Energy Regulatory Board, National Tele-
communications Commission, Department of
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System,
Employees Compensation Commission,
Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary
arbitrators authorized by law. (n)
Q: Ano ba yang Court of Tax Appeals (CTA)?
A: Actually, the CTA is not a quasi-judicial body but really
a special court. It is a special court whose jurisdiction you
will study in the subject of Taxation 2, a third year subject.
As the name of the court implies, it is a specialized court
handling only tax cases.
Q: Normally, ano ang mga tax cases?
A: Mga cases decided against a taxpayer, example by the
Commissioner on Internal Revenue under the tax code.
Because the commissioner can rule whether you are liable
Page 271 of 296
 on certain taxes. Under the Internal Revenue Code, doon
ka sa CTA.
Before this law took effect, formerly from the CTA,
doon na sa SC. Ngayon, hindi na. From the CTA, to the CA
na. Then later on, possibly sa SC na. Although I do not agree
with that amendment. Technically, ha. You know why?
Because the CTA is a specialized court. The judges in the CTA
are tax experts. They know more about tax cases than the
judges in the CA. I wonder why a decision of a specialized
court is revisable by the CA. I do not see any wisdom. The
only thing I see there is that all these amendments are
designed to unload the volume of the cases reaching the SC.
You have to pass through many courts before you can go to
the SC. How ever the new law now provides again that the
CTA goes directly to SC on appeal.
Q: Now prior to Rule 43, because this is an entirely new rule,
what was the procedure?
A: It used to be certain provisions in the ‘64 Rules. Rules 43
and 44. Then naging special law by RA 2440 something,
then napalitan. The last law governing appeals from to
the CA from quasi-judicial bodies is Revised Administrative
Circular 1-95 which took effect on June 1, 1995. That was
the governing law. Now, it is Rule 43. And I went over
Rule 43, I noticed these are the same provisions of Revised
Adm. Circular 1-95. Kinopya lang. So, the circular is now
considered Rule 43.
Aside from the CTA, decisions of quasi-judicial bodies
are appealable.
Q: What are these quasi-judicial bodies?
1. Civil Service Commission. This is
accordance with the amendment in the Judiciary
Law. Before the judiciary law was amended and
circular 1-95 came out, appeals from the CSC are
direct to the SC. There are 3 Constitutional
Commissions, di ba? Comelec, COA and CSC. And
according to the constitution, unless otherwise
provided by law, decisions of the Constitutional
Commissions are directly appealable to the SC.
Kaya nga ang Comelec, en banc yan eh. The SC sits
en banc in election cases. Same thing for COA.
What surprised me, the CSC pinasa sa CA. That is the
only Constitutional Commission whose decision is now
appealable to the CA unlike before. Siguro, because
majority of appealed cases in the SC are Civil service.
And remember the CA is not a constitutional body.
The Civil Service Commission is. So, we are now
faced with a situation where a court which is not
constitutional is called upon to review the decision of
a constitutional body. But there is nothing we can
do.
In the earlier case of MANSITA vs. BARSINAS, 216 SCRA
772, that was before Rule 43 and Circular 1-95, the SC ruled
that judgments of the CSC can only be elevated to the SC by
certiorari. Ang sabi ng SC in the later case of MATEO vs. CA,
(1995) 247 SCRA 284, the ruling in MANSITA no longer governs
for under the present rule, Revised Administrative Circular 1-95
which took effect on June 1, 1995, final resolutions of the CSC
shall be appealable to the CA.
2. Central Board of Assessment Appeals. You
will study that in Taxation on real property taxes.
Suppose the city assessor will assess your lupa tapos
taasan niya yung valuation. Can you complain?
Yes, you complain to the City Assessor or the
Provincial Assessor to the City -- Board Assessment
Appeals. Kung talo ka, next step is the Central Board
of Assessment Appeals. Its a Manila agency. From
there, CA.
3. Securities and Exchange Commission. You
will study this under the Corporation law. Quarrels
with corporations. Stockholders, officers, etc.
4. The Office of the President. The Office of
the President renders decisions. From the
department secretaries, to the Office of the president
and then to the CA.
5. Land Registration Authority. You are familiar
with that under the land registration decree.
6. Social Security Commission. You know that
under Social Legislation.
7. Civil Aeronautics Board. Mga eroplano yan.
8. Bureau of Patents, Trademarks and
Technology Transfer. Mga patents, copyrights.
9. National Electrification Administration,
Energy Regulatory Board which has become famous
lately because it ordered MERALCO to refund for
overcharging customers in Metro Manila. National
Telecommunications Commission, involving cable
and TV stations.
10. Department of Agrarian Reform under
Republic Act No. 6657, that is the CARL.
11. Government Service Insurance System,
12. Employees Compensation Commission,
13. Agricultural Inventions Board,
14. Insurance Commission,
15. Philippine Atomic Energy Commission,
16. Board of Investments.
There were some cases recently on the BOI. Sometime in 1987,
when Cory Aquino deducted enacted the Omnibus
Investments Code, nilagay doon that the decisions of the BOI
are appealable to the SC. Under the judiciary law, decisions
of the BOI are appealable to the CA. Ang ginawa ni Cory
Aquino sa Executive Order No. 226 appealable to the SC.
Obviously, she wants to make it an exception kaya nagkaroon
ng question. Saan i-appeal ang decision sa CA or sa SC. Sabi
ko sa CA. But there is a new law. So this is the exception to
the Judiciary Law.
That was the issue in the 1994 case of FIRST LEPANTO
CERAMICS VS. CA 237 S 519.
Q: Since the Investment Law is a later law and makes the
decision of the BOI appealable directly to the SC, therefore
the prior rule which makes the decision appealable to the
CA already.
A: But sabi ng SC no because under the new constitution, now
law shall be passed decreasing the jurisdiction of the SC
without its advice and concurrence. In effect, this law has
even asked additional work without our knowledge and
consent therefore we do not agree. The SC rejected the
provision that decisions of the BOI are appealable to the SC.
A:Construction Industry Arbitration Commission. I think I
mentioned this in the pre-trial. The necessity or the
desirability of submitting the case for arbitration. One case
where arbitration was mandated is the Construction
Industry. There is a quarrel on whether the construction
was correct or not, the foundation, the materials. I think
courts are not competent because it is highly technical.
A: And finally, voluntary arbitrators authorized by law. This is
under the Labor Code, under Labor Relations because
there are cases which are to be heard and tried by the
Labor Arbiter appealable to the NLRC. Meron namang
kaso the Labor Arbiter has no jurisdiction. It should be
given to a Voluntary Arbitrator that is administered by the
National Conciliation and Mediation Board. Who are the
arbitrators? They are accredited. they have to undergo a
seminar.
Usually ang mga kaso how to interpret the Collective
Bargaining Agreement (CBA). Away ng labor at
management. This afternoon I prepared a decision in an
arbitration case involving DOLE Philippines and the National
Page 272 of 296
Federation of Laborers on the issue of the interpretation of the
CBA on maternity benefits. What is the period for the
maternity leave. 60 kung normal and the SSS will pay the
benefits. But you will not actually give 100%. You will only get
70 yata. assuming that your salary is P100 ang ibibigay sa iyo
ng SSS ay 70. Under the CBA of Dole Philippines and the NFL
ang management ang magbibigay ng kulang para 100% pa
rin ang suweldo mo. The same as those who are working. But
there are controversial rules because management granted
the deferential on all working days minus rest days and
holidays. Di ba 60 days pero may mga rest days man yan. So
ang binayaran 52 days lang minus 8. So ang argument dapat
60. Question: Does the maternity leave cover only working
days? Or does it cover also the rest days? So I made a
decision on that case. And under the law that decision is
appealable.
Sec. 2. Cases not covered. - This
Rule shall not apply to judgments or final orders
issued under the Labor Code of the Philippines.
(n)
Rule 43 does not apply to NLRC decisions. The NLRC
decisions or the decisions of the Secretary of Labor are
appealable directly to the SC by certiorari under Rule 65.
Kaya nga makita mo sa SCRA mga NLRC decisions. Kaya nga
the Phil. Association. of Voluntary Arbitrators (PAVA) is
questioning this sec. 1. Decisions of voluntary arbitrators are
appealable to the CA when actually the decision of voluntary
arbitrators is also a judgment or final order issued under the
Labor Code. Bakit ganoon? Under sec. 1, voluntary arbitrators
appealable to the CA, under sec. 2 it is not supposed to be.
So how will you reconcile the two? So there is a pending
question on that.
So just remember that and
read the rest of the provisions.
Sec. 3. Where to appeal. - An
appeal under this Rule may be taken to the
Court of Appeals within the period and in the
manner herein provided, whether the appeal
involves questions of fact, of law, or mixed
questions of fact and law. (n)
Sec. 4. Period to appeal. - The
appeal shall be taken within fifteen (15) days
from notice of the award, judgment, final order
or resolution, or from the date of its last
publication, if publication is required by law for
its effectivity, or of the denial or petitioner’s
motion for new trial or reconsideration duly filed
in accordance with the governing law of the
court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper
motion and the payment of the full amount of
the docket fee before the expiration of the
reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days
only within which to file the petition for review.
No further extension shall be granted except for
the most compelling reason and in no case to
exceed fifteen (15) days. (n)
Sec. 5. How appeal taken. -
Appeal shall be taken by filing a verified petition
for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy
thereof on the adverse party and on the court or
agency a quo. The original copy of the petition
intended for the Court of Appeals shall be
indicated as such by the petitioner.
Upon the filing of the petition, the
petitioner shall pay to the clerk of court of the
Court of Appeals the docketing and other lawful
fees and deposit the sum of P500.00 for costs.
Exemption from payment of docketing and
other lawful fees and the deposit for costs may
be granted by the Court of Appeals upon a
verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the
motion, the petitioner shall pay the docketing
and other lawful fees and deposit for costs within
fifteen (15) days from notice of the denial. (n)
Sec. 6. Contents of the petition. -
The petition for review shall
(a) state the full names of the parties to
the case, without impleading the court or
agencies either as petitioners or respondents;
(b) contain a concise statement of the
facts and issues involved and the grounds relied
upon for the review;
(c) be accompanied by a clearly
legible duplicate original or a certified true copy
of the award, judgment, final order or resolution
appealed from, together with certified true
copies of such material portions of the record
referred to therein and other supporting papers;
and
(d) contain a sworn certification against
forum shopping as provided in the last
paragraph of section 2, Rule 42. The petition shall
state the specific material dates showing that it
was filed within the period fixed herein. (2a)
Sec. 7. Effect of failure to comply
with requirements. - The failure of the petitioner
to comply with any of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the
contents of and the documents which should
accompany the petition shall be sufficient
ground for the dismissal thereof. (n)
Sec. 8. Action on the petition. - The
Court of Appeals may require the respondent to
file a comment on the petition, not a motion to
dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are
too unsubstantial to require consideration. (6a)
Sec. 9. Contents of comment. - The
comment shall be filed within ten (10) days from
notice in seven (7) legible copies and
accompanied by clearly legible certified true
copies of such material portions of the record
referred to therein together with other supporting
papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner’s
statement of facts and issues; and (b) state the
reasons why the petition should be denied or
dismissed. A copy thereof shall be served on
the petitioner, and proof of such service shall be
filed with the Court of Appeals. (9a)
Page 273 of 296
 Sec. 10. Due course. - If upon the filing
of the comment or such other pleadings or
documents as may be required or allowed by
the Court of Tax Appeals or upon the expiration
of the period for the filing thereof, and on the
basis of the petition or the records the Court of
Appeals finds prima facie that the court or
agency concerned has committed errors of fact
or law that would warrant reversal or
modification of the award, judgment, final order
or resolution sought to be reviewed, it may give
due course to the petition; otherwise, it shall
dismiss the same. The findings of fact of the
court or agency concerned, when supported by
substantial evidence, shall be binding on the
Court of Appeals. (n)
Sec. 11. Transmittal of record. - Within
fifteen (15) days from notice that the petition has
been given due course, the Court of Appeals
may require the court or agency concerned to
transmit the original or a legible certified true
copy of the entire record of the proceeding
under review. The record to be transmitted may
be abridged by agreement of all parties to the
proceeding. The Court of Appeals may require
or permit subsequent correction of or addition to
the record. (8a)
Sec. 12. Effect of appeal. - The
appeal shall not stay the award, judgment, final
order or resolution sought to be reviewed unless
the Court of Appeals shall direct otherwise upon
such terms as it may deem just. (10a)
Sec. 13. Submission for decision. - If the
petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within
a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
Court of Appeals. (n)
End of Rule 43.
PROCEDURE IN THE COURT OF АPPEАLS
Rule 44
ORDINARY APPEALED CASES
Rule 44 is a continuation of Rule 41 because in Rule
41 how do you appeal from the RTC to the CA.
Q: Pagdating sa CA, ano ang mangyari?
A: We now apply Rule 44. Procedure in the CA for
ordinary appealed cases. By way of comment, the
procedure in the CA on appealed cases is not only
governed by the Rules of Civil Procedure, the CA has its
own internal rules. The CA has its own internal Rules of
Court. Of course, it has been approved by the SC. It is
known as the Revised Internal Rules of the CA or for short
we call RIRCA. It is more detailed than the Rules of Court.
And I am surprised many do not have a copy of this
RIRCA. There are things there na wala sa Rules of Court.
You do not have to study that. It is for practitioners na.
Sec. 1. Title of cases. - In
all cases appealed to the Court of Appeals
under Rule 41, the title of the case shall remain
as it was in the court of origin, but the party
appealing the case shall be further referred to as
the appellant and the adverse party as the
appellee. (1a, R46)
Sec. 2. Counsel and
guardians. - The counsel and guardians ad litem
of the parties in the court of origin shall be
respectively considered as their counsel and
guardians ad litem in the Court of Appeals.
When others appear or are appointed, notice
thereof shall be served immediately on the
adverse party and filed with the court. (2a, R46)
Sec. 3. Order of
transmittal of record. - If the original record or
the record on appeal is not transmitted to the
Court of Appeals within thirty (30) days after the
perfection of the appeal, either party may file a
motion with the trial court, with notice to the
other, for the transmittal of such record or record
on appeal. (3a, R46)
Sec. 4. Docketing of
case. - Upon receiving the original record or the
record on appeal and the accompanying
documents and exhibits transmitted by the lower
court, as well as the proof of payment of the
docket and other lawful fees, the clerk of court
of the Court of Appeals shall docket the case
and notify the parties thereof. (4a, R46)
Within ten (10)
days from receipt of said notice, the appellant,
in appeals by record on appeal, shall file with
the clerk of court seven (7) clearly legible
copies of the approved record on appeal,
together with the proof of service of two (2)
copies thereof upon the appellee.
Any unauthorized
alteration, omission or addition in the approved
record on appeal shall be a ground for dismissal
of the appeal. (n)
Sec. 5. Completion of
record. - Where the record of the docketed case
is incomplete, the clerk of court of the Court of
Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty of said
court to take appropriate action towards the
completion of the record within the shortest
possible time. (n)
Sec. 6. Dispensing with
complete record. - Where the completion of the
record could not be accomplished within a
sufficient period allotted for said purpose due to
insuperable or extremely difficult causes, the
court, on its own motion or on motion of any of
the parties, may declare that the record and its
accompanying transcripts and exhibits so far
available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration. (n)
Now what are the points to remember in Rule 44?
When the case reaches the CA what you will receive next
specially if you are the appellant: you are given 45 days to file
and furnish this court the appellant’s brief. That is sec. 7.
Sec. 7. Appellant’s brief. -
It shall be the duty of the appellant to file with
the court, within forty-five (45) days from receipt
Page 274 of 296
 of the notice of the clerk that all the evidence,
oral and documentary, are attached to the
record, seven (7) copies of his legibly
typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon
the appellee. (10a, R46)
Copy furnished the appellee, yung nanalo. What will he do
when he receives it? Sec. 8.
Sec. 8. Appellee’s brief. -
Within forty-five (45) days from receipt of the
appellant’s brief, the appellee shall file with the
court seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the
appellant. (11a, R46)
Sec. 9. Appellant’s reply
brief. - Within twenty (20) days from receipt of
the appellee’s brief, the appellant may file a
reply brief answering points in the appellee’s
brief not covered in him main brief. (12, R46)
So, after apellant’s brief, appellee’s brief. Under sec.
9, the appellant may also file an appellant’s reply brief.
Sagutin mo yung appellee. Although optional ito. Normally
bihira ka makakita ng appellant’s reply brief. Now the word
brief, hindi yung Jockey, is derived from the Latin word prepis,
literally it means a short or condensed statement. Its purpose is
to present to court in concise form the points and questions in
controversy and by clear agreement of the facts and the law
of the case to assist the court in arriving at a just and proper
conclusion. In other words, preparing an appeal brief is like
writing a book. If you are the appellant you prepare a brief
where you will want to demolish a decision of the RTC.
Because you are trying to convince the CA to reverse the RTC.
Ang appellee naman, you defend.
Sec. 10. Time for filing
memoranda in special cases. - In certiorari,
prohibition, mandamus, quo warranto and
habeas corpus cases, the parties shall file, in lieu
of briefs, their respective memoranda within a
non-extendible period of thirty (30) days from
receipt of the notice issued by the clerk that all
the evidence, oral and documentary, is already
attached to the record. (13a, R46)
The failure of the
appellant to file his memorandum within the
period therefor may be a ground for dismissal of
the appeal. (n)
Sec. 11. Several appellants
or appellees or several counsel for each party. -
Where there are several appellants or appellees,
each counsel representing one or more but not
all of them shall be served with only one copy of
the briefs. When several counsel represent one
appellant or appellee, copies of the brief may
be served upon any of them. (14a, R46)
Now for an idea of what the appeal brief contains read secs.
13 and 14.
Sec. 13. Contents of
appellant’s brief. - The appellant’s brief shall
contain, in the order herein indicated, the
following:
(a) A subject index of the
matter in the brief with a digest of the arguments
and page references, and a table of cases
alphabetically arranged, textbooks and statutes
cited with references to the pages where they
are cited;
(b) An assignment of errors
intended to be urged, which errors shall be
separately, distinctly and concisely stated
without repetition and numbered consecutively;
(c) Under the heading
“Statement of the Case”, a clear and concise
statement of the nature of the action, a summary
of the proceedings, the appealed rulings and
orders of the court, the nature of the judgment
and any other matters necessary to an
understanding of the nature of the controversy,
with page references to the record;
(d) Under the heading
“Statement of Facts,” a clear and concise
statement in a narrative form of the facts
admitted by both parties and of those in
controversy, together with the substance of the
proof relating thereto in sufficient detail to make
it clearly intelligible, with page references to the
record;
(e) A clear and concise
statement of the issues of fact or law to be
submitted to the court for its judgment;
(f) Under the heading
“Argument,” the appellant’s arguments on each
assignment of error with page references to the
record. The authorities relied upon shall be cited
by the page of the report at which the case
begins and the page of the report on which the
citation is found;
(g) Under the heading “Relief,”
a specification of the order or judgment which
the appellant seeks; and
(h) In cases not brought up by
record on appeal, the appellant’s brief shall
contain, as an appendix, a copy of the
judgment or final order appealed from. (16a,
R46)
Sec. 14. Contents of
appellee’s brief. - The appellee’s brief shall
contain, in the order herein indicated, the
following:
(a) A subject index of the
matter in the brief with a digest of the arguments
and page references, and a table of cases
alphabetically arranged, textbooks and statutes
cited with references to the pages where they
are cited;
(b) Under the heading
“Statement of Facts,” the appellee shall state
that he accepts the statement of facts in the
appellant’s brief, or under the heading
“Counter-Statement of Facts,” he shall point out
such insufficiencies or inaccuracies as he
believes exist in the appellant’s statement of
facts with references to the pages of the record
in support thereof, but without repetition of
matters in the appellant’s statement of facts; and
(c) Under the heading
“Argument,” the appellee shall set forth his
Page 275 of 296
 arguments in the case on each assignment of
error with page references to the record. The
authorities relied on shall be cited by the page
of the report at which the case begins and the
page of the report on which the citation is found.
(17a, R46)
That is the contents of the appellant’s brief and
appellee’s brief. Did you notice that based on the decision it
is like writing a book? Parang thesis ba. May table of contents,
arguments, etc. What is important there when you are
appealing you will cite the alleged mistakes omitted by the
trial court whether a question of fact or a question of law. That
is what you call the assignment of errors. Normally it is
something like this. : Assignment of Error 1. The trial court
erred in appreciating this evidence, etc. then you discuss why,
you cite decided cases, jurisprudence. Now kung ikaw
naman ang appellee you will defend. The trial court did not
commit any error, etc. So parang debate.
This also applies to criminal cases only the appellant’s
brief is handled by the Solicitor General for the people of the
Philippines. The contents are almost identical. And I think the
best brief writers are in the office of the SolGen because they
have mastered the art of making briefs as brief and concise
as possible. Would you believe 5 pages lang? Tapos yung sa
kabila 50 to 60 pages. Tapos pagdating sa SC yung maiksi
ang manalo.
Let us go to some important points, This has been
asked in the BAR.
Q: Can the appellee make an assignment of errors in the
appellee’s brief?
A: The SC said no. You are supposed to defend the
decision. If an appellee wants to make an assignment of
errors committed by the trial court he should also appeal.
So as a general rule, an appellee cannot make an
assignment of errors committed by the trial court because
if the appellee feels the decision is also wrong, kahit na
panalo siya, he should also appeal and file his own
appellant’s brief.
There is only one exception based on decided cases.
If the appellee would like to defend the decision of the trial
court on some other reasons other than the assignment of error
by the trial court. Because sometimes you agree with the
decision but you do not agree with the reason. That happens
several times
Q: How many days do you have to file your appellant’s brief?
A: You have 45 days under sec. 7, which is extendible,
according to section 12.
Sec. 12. Extension of time
for filing briefs. - Extension of time for the filing of
briefs will not be allowed, except for good and
sufficient cause, and only if the motion for
extension is filed before the expiration of the
time sought to be extended. (15, R46)
You know I still have to see a lawyer who files his
appellant or appellee’s brief in 45 days. Chances are
extended yan. Even yung answer, yung 15 days to file an
answer, extended yan because of the Filipino habit na you will
not move until deadline na. Another 45. And the CA is liberal
on that. The CA pa nga will give you 90 days. Hingi ka ng 45
bigyan ka ng 90. Pero no further extension. Provided your
motion for extension is filed before the expiration of the time
sought to be extended. So you do not file your motion for
extension after the lapse of 45 days. Sometimes the SC is also
liberal on this. I will give you an example how the SC
interpreted this liberally in the 1994 case of:
MOSCOWSKY vs. CA
230 SCRA 657
The appellant has 45 days to file appellant’s
brief. The 45 period is suppose to expire on
August 3, 1991. He asked for extension. The CA
granted him 90 days extension counted from
August 3. So computing from August 3, 1991,
the 90 day period ended on November 1, 1991.
On November 4, 3 days after the extension
instead of filing a brief, appellant filed another
extension. Was the motion for extension filed
on time considering you must file the motion to
extend before the expiration of the time? The
last day was November 1, they filed their
motion for extension on November 4.
The SC said: Yes, the motion for extension was
filed on time under sec. 12. Why? The 90 day
period ended on November 1, 1991, a regular
holiday, All Saint’s Day. Then former Pres.
Aquino declared November 2 as a special
holiday, November 3 turned out to be a
Sunday. The next business day November. 4
was a regular business day. And under the law,
when the last day falls on a Sunday or a holiday
it can filed on the next business day. So very
liberal no.
Next question: They asked for a 20 day
extension. 20 days from November 1 or 20 days
from November 4? The SC said: Since
appellant specifically manifested that they will
need another extension 20 days from today
(Nov. 4) within which to file appellant’s brief
and today November 4 is the filing of the
motion. Therefore, the 20 day extension is
computed from Nov. 4.
Sec. 15. Questions that
may be raised on appeal. - Whether or not the
appellant has filed a motion for new trial in the
court below, he may include in his assignment of
errors any question of law or fact that has been
raised in the court below and which is within the
issues framed by the parties. (18, R46)
Q: What may a party raise on appeal?
A: Issues that were raised in the court below. So you cannot
raise an issue on appeal which was not raised in the trial court.
That is just an extension of the rule that objections or defenses
not raised in the pleading are deemed waived. Hence, you
cannot change your theory of the case while it’s already on
appeal
The exception there is lack of jurisdiction because of the rule
that lack of jurisdiction over the subject matter can be raised
at any stage in the proceedings even for the first time on
appeal. Unless you are covered by the TIJAM VS.
SIBONGHANOY rule because of laches.
Another way of stating the principle is: an appellant cannot
change his theory of the case on appeal. So, example, my
obligation is extinguished by condonation. Pagdating ng
appeal hindi pala condonation, prescription pala. You
cannot do that. Because you cannot change your theory,
defense, or cause of action for the first time on appeal.
Sometimes it is easy to detect that. Sometimes it is difficult. Let
us try to find out if you can detect. This was the case of:
Page 276 of 296
 RIVERA VS. CA
176 SCRA 179
This is related to the law on Sales.
The spouses Martinez sold their house and
lot to Rivera. Later, Martinez filed a
complaint against Rivera to declare the
sale null and void on the ground that the
sale was merely a mortgage. You know that
no? Equitable mortgage. The trial court
dismissed the complaint. Talo si Martinez.
There was a valid sale. On appeal to the
CA, Martinez prayed that they be allowed
to recover the property. So, sa trial court the
sale is void. It should only be treated as a
mortgage. And the CA granted the prayer
and reversed the trial court and allowed the
Martinez spouses to redeem the property. Si
Rivera now went to the SC. He said, the
Martinez spouses changed the theory of the
case on appeal which is violative of sec. 15.
Why? In the original complaint they prayed
for the declaration of the nullity of the sale.
On appeal to the CA they prayed that they
be allowed.
Is there a change or no change in
the theory of the case. According to the SC
there is no change. Why? There was no
surprise.. After all, surprise is the reason for
the prohibition against such a change of
theory. The injunction against change of
theory on appeal insures fairness in the
proceedings. In other words, fairness or due
process bars flip-flopping. Kambyo-kambyo
ba. The real purpose of Martinez in asking
for the nullity of the contract precisely in
order to recover the property. It would be
absurd to pray for the nullity of the
agreement and stop there. There would be
a vacuum. They’re asking that the sale be
declared null and void so that they can
redeem the property. On appeal they are
asking that they be allowed to redeem. Did
I change my theory. I did not. The SC said
that that cannot be construed as a change
in theory. It is persistence in theory. Plain
and simple.
End of Rule 44.
Rule 45
APPEAL BY CERTIORARI
TO THE SUPREME COURT
Sec. 1. Filing of petition with
Supreme Court. - A party desiring to appeal by
certiorari from a judgment or final order or
resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other
courts whenever authorized by law, may file with
the Supreme Court a verified petition for review
on certiorari. The petition shall raise only
questions of law which must be distinctly set
forth. (1a, 2a)
Mode of Appeal to the SC is what is known as appeal
by certiorari.
Q: How is appeal by certiorari being done in the SC, in the
CA, in the RTC then you have the Sandiganbayan. Now,
how do you appeal to the SC from the CA?
A: The only recognized manner of appeal is certiorari.
Now you have the Sandiganbayan which is the special
court.
Q: From the Sandiganbayan to the SC, how is the mode of
appeal done?
A: The same thing governed by Rule 45.
Q: How about RTC?
A: Well we learned already in Rule 41 that normally from
the RTC to the CA is ordinary appeal. Or petition for review
under Rule 42. But if the RTC decides a civil case on purely
legal question and the appeal is purely legal, you bypass
the CA. You go to the SC by way of Rule 45. As a matter
of fact, appeal by certiorari is mentioned in Rule 41. From
the RTC to a higher court. Let us go back to Rule 41, sec. 2.
Sec. 2. Modes of appeal.
-
(a) Ordinary appeal. - The
appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its original jurisdiction shall be taken
by filing a notice of appeal with the court which
rendered the judgment or final order appealed
from and serving a copy thereof upon the
adverse party. No record on appeal shall be
required except in special proceedings and
other cases of multiple or separate appeals
where the law or these Rules so require. In such
cases, the record on appeal shall be filed and
served in like manner.
(b) Petition for review. - The
appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review in accordance with Rule 42.
(c) Appeal by certiorari. - In all
cases where only questions of law are raised or
involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in
accordance with Rule 45. (n)
Q: So correlating this provision with Rule 41, what are the
modes of appeal from the RTC to a higher court?
A: According to Rule 41 sec. 2 there are three ways of
appealing the RTC’s decision. The first is ordinary appeal
by simply filing a notice of appeal. That is governed by
Rule 41. That refers to cases decided by the RTC pursuant
to its original jurisdiction. Suppose the RTC decides the
case pursuant to its appellate jurisdiction. Meaning, the
case actually originated from the MTC. Appeal to the RTC.
From the RTC to the CA you follow Rule 42. The mode of
appeal is known as petition for review. Now suppose from
the RTC, you are going to appeal on purely legal question,
then you direct to the SC. You bypass the SC and the
mode of appeal is called appeal by certiorari. Or it is also
known as petition for review on certiorari. That is another
name. Do not simply say petition for review because that is
another mode in Rule 42. It is called petition for review on
certiorari or appeal by certiorari.
Q: We mentioned certiorari even in the constitution,
original jurisdiction in the SC. Certiorari , Prohibition,
mandamus, is that the same?
A: That type of certiorari is not the same as this certiorari
because there are two remedies under the Rules of Court
with the same name, certiorari. Petition for Certiorari. The
one mentioned in the Constitution and the Judiciary Law is
petition for certiorari under Rules 65. This is called certiorari
under Rule 45. Even judges and lawyers get confused on
this. So in order not to get confused an original special civil
action for certiorari, let us call Rule 45, appeal by certiorari
or petition for review on certiorari.
Page 277 of 296
What is the difference between the two? Let us just wait when
we reach the subject on special proceedings where we will
distinguish certiorari under Rule 45 and certiorari under Rule 65.
As a matter of fact, there are already questions in the BAR
asking them. And take note the petition must be verified.
Now the last sentence says the petitions shall raise
only questions of law which must be distinctly set forth. Take
note that the SC does not decide on questions of fact, only
questions of law. Now if you ask me, what is the difference
question of fact and question of law? The SC said: there is a
question of law if the issue is as to what the law is on a certain
state of facts. The issue is what is the law for a certain state of
facts. But if the issue is as to the truth or falsehood of alleged
facts, then the question is one of fact.
Question of law Question of fact
Issue is to what the law is on a Issue is the truth of alleged
certain state of facts facts
Could be decided w/o Have to review evidence
consulting the evidence when deciding
Another way of saying this based on SC
pronouncements, if the appellate court in deciding the case
has to review the evidence to determine who is telling the
truth, that is a question of fact. But if the case can be decided
without going over the evidence, then that is a question of
law. Meaning the facts are there. But the question is who is
correct. To tell you frankly, rarely can we find a case which is
appealed on purely questions of law. Majority of appeals are
questions of fact or at the most halo. That is why majority of
the cases are appealed to the CA. Rarely can you find a
case which is elevated directly to the SC from the RTC. Now of
course, if your appeal is halo, you better go to the CA and
from the CA you can go later on to the SC.
The best example of what is a question of law where
the facts are given and the only issue is who is legally correct
are problems in your exam. The facts are given. Ang sagutin
mo sino ang tama. You are not asked who is telling the truth
because the facts are already given.
So as a general rule, from the RTC you go to the CA, and from
the CA you go to the SC. In a petition for review on certiorari
only questions of law can be entertained. Normally, it is from
the Sandiganbayan to the SC or RTC to the SC.
Q: So what is the principle to remember?
A: The findings of the CA on question of fact are generally
final and conclusive upon the SC. The SC does not review
the evidence so the findings of fact by the CA are
generally not subject to review by the SC.
However, there are exceptions. The SC through the years has
laid down exceptions after exceptions where it has reviewed
findings of fact. And therefore because of the accumulation
of exceptions there are now several exceptions. We will cite
some of these exceptions.
1) When the findings of fact by the
CA are manifestly absurd, mistaken or
impossible;
2) When the CA committed a grave
abuse of discretion in the appreciation of facts;
3) When the finding of fact by the
CA are not supported by substantial evidence
but grounded entirely on speculations, surmises,
or conjectures;
4) When a judgment of the CA is
premised on a misapprehension of facts;
5) When the findings of fact of the
CA are conflicting;
6) The findings of fact of the CA go
beyond the range of the issues and are contrary
to the admissions of the parties;
7) When the findings of the CA are
contrary to those of the trial court; (RTC says P is
right, CA says D is right, SC breaks the tie) and
finally,
8) When the findings are without
citations of specific evidence on which they are
based.
In any of these exceptions the SC in its discretion may review
the findings of fact of the CA. In your reading of the SCRA I’m
sure you have read several decisions of the SC where most of
these cases originated from the CA. I’m sure you have read
the SC disposing of the case on these exceptions. The issue
being raised is a factual issue and the SC dismisses the case
because it cannot look into factual issues. That is applying the
general rule. But sometimes it also applies the exception. So
how can the SC go wrong? In either case it is always correct.
Q: MTC  RTC  SC on pure question of law?
A: Not allowed, Rule 45 is not applicable. When CA is
bypassed, it should be pursuant to its original jurisdiction. It
should either be:
Sec. 2. Time for filing; extension. - The
petition shall be filed within fifteen (15) days from
notice of the judgment or final order or resolution
appealed from, or of the denial of the petitioner’s
motion for new trial or reconsideration filed in due
time after notice of the judgment. On motion duly
filed and served, with full payment of the docket
and other lawful fees and the deposit for costs
before the expiration of the reglementary period,
the Supreme Court may for justifiable reasons grant
an extension of thirty (30) days only within which to
file the petition.
Q:Is the 15 day period extendible?.
A:Yes, according to sec. 2. The SC, may for justifiable
reasons grant an extension of 30 days only within which to
file the petition.
Q: Where will you file your motion for extension?
A: Sa SC. I remember a lawyer before who filed a motion
for extension under Rule 45, he filed it in the CA. The CA
cannot grant the extension. But you furnish the CA a copy
of your motion for extension.
Q: Under sec. 2, when you appeal by certiorari, where will
you file your petition?
A: Directly to the SC but you have to furnish a copy of
your petition to the adverse party and the CA. The CA
must also be furnished a copy of the petition.
Page 278 of 296
 Q: How many days do you have to file your petition for
appeal by certiorari?
A: You also have 15 days computed from the time you
receive:
(1) the CA’s decision or (2) the order denying your motion
for new trial or reconsideration.
Example: I receive a copy of the CA decision today.
File ako ng reconsideration. After 1 or 2 months here is the CA
decision. Denied. How many more days do I have to file my
petition for review on certiorari. 15 days. It does not only
interrupt the running of the 15 day period but the 15 day
period starts to run all over again. So do not confuse this with
Rule 41. In ordinary appeal, by notice of appeal, the filing of a
motion for reconsideration only interrupts the running of the 15
day period. And then if your motion is denied, you have the
remaining balance of the 15 day period to file your notice of
appeal (changed by the Neypes ruling). Here, no. It starts to
run all over again.
Sec. 3. Docket and other lawful
fees; proof of service of petition. - Unless he has
therefore done so, the petitioner shall pay the
corresponding docket and other lawful fees to
the clerk of court of the Supreme Court and
deposit the amount of P500.00 for costs at the
time of the filing of the petition. Proof of service
of a copy thereof on the lower court concerned
and on the adverse party shall be submitted
together with the petition. (1a)
When you file your petition for review, according to
sec. 3, you also automatically pay the docket fees and other
lawful fees and deposits for costs. It is not only the petition for
review that everything must be paid on time.
Q: What happen if you will forget these things?
A: The effect is in sec. 5. For non-compliance of an essential
requirement.
And what is more? Normally, when you ask for
extension to file your appeal by certiorari, you pay the docket
fees within 15 days. Ang extension, yung appeal lang but
there is no extension for the payment of the docket fees. That
reminds me of a counsel who within 15 days filed a motion for
extension of time to file the appeal by certiorari. He asked for
20 days extension. Granted. Within 20 days, he filed a petition
for certiorari under Rule 45. After one month, he received an
order. Dismissed because of failure to pay the docket fees
within 15 days. Sabi niya: I asked for extension of time to file
my petition under Sec. 2. Correct, sabi ng SC. But we
extended only the period to file the petition. We never
extended the period to pay the docket fees. These are
technicalities which have caused so many deaths of petitions
before the SC.
Q: What happens generally if your petition is filed beyond 15
days?
A: The petition is dismissed.
Q: Are there instances when the SC entertained an appeal by
certiorari filed beyond 15 days?
A: Yes, in some very, very rare situations where the SC invoked
what is called as equity jurisdiction.
Q: Ano ba itong equity jurisdiction?
A: When the SC announces that it is going to apply equity
jurisdiction, that is a signal that it will start mutilating its own
rules. Meaning, they will not follow their rules and consider it as
an exceptional case. who can question the SC? Nobody.
We made that rule that we also have the right to make that
exception. Wala ka ng laban. Among these cases where an
appeal for certiorari is filed beyond 15 days and the SC still
allowed it are:
SERRANO vs. CA
139 SCRA 179
The SC said: Even assuming that a
petition for review by certiorari is filed a few
days later where a strong consideration for
substantial justice are manifest in the
petition, the court may relax the stringent
application of technical rules in the exercise
of equity jurisdiction. In addition to the
basic merits of the case, such a petition
usually embodies justifying circumstances
which warrant heeding the petitioner’s cry
for justice inspite of the earlier negligence of
counsel.
MAUNA vs. CSC
232 SCRA 318
The SC said: Assuming for the case
of argument that the petitioner’s appeal
was filed out of time, it is within the power of
this court to temper rigid rules in favor of
substantial justice. While it is desirable that
the rules of court be faithfully an even be
meticulously observed, courts should not be
so strict about procedural lapses so as not
to impair the proper administration of
justice. If the rules are intended to ensure
the orderly conduct of litigation, it is
because of the higher objective they seek
which is the protection of substantive rights
of the parties.
That is the other side of the coin. But the trouble is we
do not know when the SC will apply the general rule and when
it will apply the so called equity jurisdiction. it is for the court to
determine which to apply. I asked a justice before. When do
you apply that? This is how we deliberate. There is a petition.
After deliberation, we ask: Ano ba? May laman or wala?
Parang meritorious. Ang problema lang, filed out of time.
Hanapan ng butas yan. Meaning, they will look for
exceptions. Pero kung walang merit, hanapan nila ng butas
para ma-dismiss.
Now, what are the contents of the petition? Just
read Sec. 4.
Sec. 4. Contents of petition. - The
petition shall be filed in eighteen (18) copies,
with the original copy intended for the court
being indicated as such by the petitioner, and
shall
(a) state the full name of the
appealing party as the petitioner and the
adverse party as respondent, without
impleading the lower courts or judges thereof
either as petitioners or respondents;
(b) indicate the material dates
showing when notice of the judgment or final
order or resolution subject thereof was received,
when a motion for new trial or reconsideration, if
any, was filed and when notice of the denial
thereof was received;
(c) set forth concisely a
statement of the matters involved, and the
Page 279 of 296
 reasons or arguments relied on for the
allowance of the petition;
(d) be accompanied by a
clearly legible duplicate original, or a certified
true copy of the judgment or final order or
resolution certified by the clerk of court of the
court a quo and the requisite number of plain
copies thereof, and such material portions of the
record as would support the petition; and
(e) contain a sworn
certification against forum shopping as provided
in the last paragraph of section 2, Rule 42. (2a)
When may the SC deny the petition? Outright denial. Sec. 5
provides for grounds for dismissal.
Sec. 5. Dismissal or denial of
petition. - The failure of the petitioner to comply
with any of the foregoing requirements
regarding the payment of the docket and other
lawful fees, deposit for costs, proof of service of
the petition, and the contents of and the
documents which should be sufficient ground for
the dismissal thereof.
The Supreme Court may on its own
initiative deny the petition on the ground that the
appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised
therein are too unsubstantial to require
consideration. (3a)
Ang first paragraph, puro technicality yan. Then the
second sentence says the SC may motu propio deny the
petition on the following grounds:
1. The appeal is without merit;
2. The appeal is prosecuted manifestly for
delay; and
3. The questions raised are too unsubstantial to
require consideration.
Q: What does the third ground mean?
A: It means that the issue you are raising is too small. In
other words, you should attend to more important issues
which would affect the entire country rather than your
problem. That’s what the SC said. We will be wasting our
time on your petition.
I remember months ago, yung appeal na ginawa
nung mga fourth year na nasa Legal Aid was dismissed. After
having labored so much, kumpleto lahat pati payment of
docket fees. Dinismis because of failure to pay the P500
because they failed to read Sec. 3 of the new rules. even if
they are offering to pay, denied pa rin. Brutal talaga ang SC.
Sec. 6. Review discretionary. - A
review is not a matter of right, but of sound
judicial discretion, and will be granted only
when there are special and important reason
therefor. The following, while neither controlling
nor fully measuring the court’s discretion,
indicate the character of the reasons which will
be considered:
(a) When the court a quo has
decided a question of substance, not
theretofore determined by the Supreme Court, or
has decided it in a way probably not in accord
with law or with the applicable decisions of the
Supreme Court; or
(b) When the court a quo has
so far departed from the accepted and usual
course of judicial proceedings, or so far
sanctioned such departure by a lower court, as
to call for an exercise of the power of
supervision. (4a)
You filed a petition for certiorari before the SC on
time. We will assume that you complied with all the
requirements. So, there is no technical ground to dismiss your
petition.
Q: Is the SC obliged to entertain your petition?
A: Entertaining the petition for review on certiorari is
discretionary. It may or may not give due course to your
petition. As a matter of fact, when somebody files a
petition for relief for certiorari under Rule 45 and I am
furnished a copy within 15 days, I do not answer. I wait for
the SC to require me to comment. because for all you
know, pagtanggap mo, i-deny pa yan ng SC. Because the
SC will have to decide whether to give it due course or not.
Sometimes the SC will ask you to comment. So,
comment ka. Tapos, the petitioner is asked also by the SC to
comment on appellee’s comment. Tapos, you wait. Then the
SC will say: After hearing the petition and the comments, the
petition is hereby dismissed. Ganoon lang. So, kapoy-kapoy ka
lang. There is no specific pattern talaga. If you ask me how
many petitions are given due course by the SC, mga 15 to 17%
lang. The rest are thrown out. Pag-sinabi ng SC: After hearing
the petition, it is hereby given due course and the parties are
now required to submit memorandum to support.
Pagnakatanggap ka ng ganyan, you are part of the 17%.
Masuwerte ka. You are now required to argue extensively.
Tapos, the SC will say: After going through everything,
dismissed. In other words, if given due course, may pag-asa
ka but hindi ka siguradong manalo. Pag-ideliberate ng SC,
meaning, it is given due course and will deliberate on your
case, that is the case which will land in the SCRA. Kung one
paragraph lang, that is what you call a minute resolution
which does not land in the SCRA.
Suppose the SC dismisses your petition by only one
sentence. Meaning, a minute resolution. Is that a dismissal for
technicality or is that a dismissal on the merits which should be
the basis of a res judicata? And the SC said: That is a dismissal
on the merits. It will amount to res judicata. There were may
cases where the SC said that, among which is:
SMITH BELL & CO. vs. CA
197 SCRA 201
The SC said: The SC has discretion
to decide whether a minute resolution
should be used in lieu of a full blown
decision in any particular case. And that a
minute resolution of dismissal of a petition
for review on certiorari constitutes an
adjudication on the merits of the
controversy or subject matter of the
petition.
In another case, the SC said: Under our present
judicial system, a party is generally allowed one appeal as a
matter of right and a second appeal as a matter of discretion.
Q: Normally, a decision of the RTC is appealed to the CA
under Rule 41. Is that a matter of right?
Page 280 of 296
 A: Yes. For as long as you filed your notice of appeal on
time and you paid your docket fees, the CA will entertain
that.
Q: Akyat na ako sa SC. that is now the second appeal. Still
a matter of right?
A: No. Now, we apply rule 45. That is no longer a matter of
right but a matter of discretion. And the same pattern
applies.
For example: the case in the MTC. You lose. You appeal in
the RTC. How? By notice of appeal or the law on appeal
under Rule 40. But the RTC to the CA is not ordinary appeal
but petition for review under Rule 42. Is that a matter of right?
No, that is a matter of discretion on the part of the CA. Based
on the same principle. As a general rule, you are entitled to
one appeal as a matter of right. and the second appeal as a
matter of discretion. So, the same pattern. We cannot
compel SC to grant the 2nd appeal because it is a matter of
discretion.
[MTC] -----matter of right------ [RTC] -----matter of discretion-----
[CA]
[RTC] ------matter of right------ [CA] ------matter of discretion------
[SC]
Q: Now, of course, how do you convince the SC to entertain
your petition?
A: One possible point that you will raise in your petition to
convince the SC is Sec. 6.
(a) When the court a quo
has decided a question of substance, not
theretofore determined by the Supreme Court, or
has decided it in a way probably not in accord
with law or with the applicable decisions of the
Supreme Court; or
(b) When the court a
quo has so far departed from the accepted and
usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as
to call for an exercise of the power of
supervision.
Meaning, the question of law decided by the CA is a
noble question which has no precedent. It is an issue being
brought out for the first time. The CA has the right to lay down,
although subject to correction by the SC.
So, for example: Merong legal issue which is very, very
interesting and the CA has made a ruling on a question of law.
Talo ka. Sabihin mo sa petition for review, Mr. SC, This issue is
very noble because this involves interpretation of the
constitution. This will guide lawyers and judges in the future.
Do you want the CA to have the final say here? Or, do you
want to have the final say? Siguro sabihin ng SC: Hindi
puwede yan. In other words, that is how you will attract the
attention of the SC. Or, sabihin mo: This is the issue. Sabi ng
CA ganito. Pero sabi niyo nung araw ganito. Does this mean
the CA will not follow your ruling? Magalit ang SC niyan. In
other words, you cannot depart from our precedent.
Sometimes, it works, sometimes not. Wala talagang uniform
pattern. In other words, you try to get the SC’s attention.
ENCARNACION vs. CA
223 SCRA 279
The SC said: In a petition for
review on certiorari under Rule 45 invoking
the usual reasons, that the CA has decided
the question on substance not in
accordance with law or with applicable
decisions by the SC, a mere statement of
the ceremonial phrase is not sufficient to
confer merit on the petition. The petition
must specify the law or prevailing
jurisprudence on the matter and the
particular ruling of the appellate court
violative of such law or previous doctrine
laid down by the SC.
It is not enough to say that the decision is not in
accord. Wala yan. We are not impressed on that. you just
quoting a ceremonial phrase. you specify exactly what is this
which is not in accordance with law. You go to specifics
rather than generalities.
Sec. 7. Pleadings and documents
that my be required; sanctions. - For purposes of
determining whether the petition should be
dismissed or denied pursuant to section 5 of this
Rule, or where the petition is give due course
under section 8 hereof, the Supreme Court may
require or allow the filing of such pleadings,
briefs, memoranda or documents as it may
deem necessary within such periods and under
such conditions as it may consider appropriate,
and impose the corresponding sanctions in case
non-filing or unauthorized filing of such
pleadings and documents or non-compliance
with the conditions therefor. (n)
Sec. 8. Due course; elevation of
records. - If the petition is give due course, the
Supreme Court may require the elevation of the
complete record of the case or specified parts
thereof within fifteen (15) days from notice. (2a)
Sec. 9. Rule applicable to both
civil and criminal cases. - The mode of appeal
prescribed in this Rule shall be applicable to
both civil and criminal cases, except in criminal
cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (n)
You correlate Sec. 9 with criminal procedure.
Q: How do you appeal to the SC?
A: From the CA to the SC, petition for review under Rule
45. Whether criminal or civil.
Q: How do you go from the Sandiganbayan to the SC in
criminal cases?
A: Rule 45.
Q: How do you go from the RTC direct to the SC on
questions of law?
A: Rule 45. Whether criminal or civil.
There is only one case where you should appeal from the RTC
direct to the SC. Criminal case, when the penalty imposed by
the RTC is death, reclusion perpetua or life imprisonment. That
is part of the Constitution di ba? That is the only instance
where you apply Rule 41, modes of appeal. As a matter of
fact, when the penalty is death, there is even no need for the
accused to appeal. There will be an automatic review of the
death penalty. But when the penalty is perpetua or life
imprisonment, the accused should directly appeal to the SC
and the mode of appeal is not petition for review but ordinary
appeal by simply filing a notice of appeal. That is the only
instance where a remedy of ordinary appeal can be
Page 281 of 296
entertained by the SC. All the rest is Rule 45 whether civil of
criminal.
End of Rule 45.
Rule 46
ORIGINAL CASES
This Rule is about Original Cases in the CA.
Q: How do you distinguish Rule 46 from Rule 44?
A: Rule 44 refers to procedures in the CA for appealed
cases like filing appellant’s brief, appellee’s brief. Rule 46 is
governing original cases.
Q: So, going back to the Judiciary law, is the CA an original
court? Or an appellate court?
A: Both. The CA entertains original cases and appealed
cases.
Q: And what are these original cases which fall within the
jurisdiction of the CA?
A: Petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus.
Another one exclusive original jurisdiction in actions for
annulment of judgments of the RTCs. Then the rest are
appeals.
That is why Sec. 2 says this rule shall apply to original actions for
certiorari, prohibition, mandamus, quo warranto. Except as
otherwise provided, etc. Therefore, the provisions of Rules 65,
66 and 47 which apply to this original action should be read
with Rule 46.
Q: Now, how about procedures in appealed cases?
A: You follow Rule 44.
Q: What is the difference?
A: In Rule 44, the parties in the RTC in the caption of the
case remain the same. So, you start with A, plaintiff vs. B,
defendant. In the appeal to the CA, A vs. B man gihapon.
You just add the word appellant and appellee. But in
original action, the parties are now called petitioner and
respondent. That is Sec. 1.
Sec. 1. Title of cases. - In all cases
originally filed in the Court of Appeals, the party
instituting the action shall be called the
petitioner and the opposing party the
respondent. (1a)
Just read the rest of the provisions. Pare-pareho, eh.
Contents and filing, seven days, fifteen days. Affidavit of non-
forum shopping. You pay the docket fee, the costs. So, there is
no need for us to go over the individual sections.
Sec. 2. To what actions applicable.
- This Rule shall apply to original actions for
certiorari, prohibition, mandamus and quo
warranto.
Except as
otherwise provided, the actions for annulment of
judgment shall be governed by Rule 47, for
certiorari, prohibition and mandamus by Rule 65,
and for quo warranto by Rule 66. (n)
Sec. 3. Contents and filing of
petition; effect of non-compliance with
requirements. - The petition shall contain the full
names and actual addresses of all the
petitioners and respondents, a concise
statement of the matters involved, the factual
background of the case, and the grounds relied
upon for the relief prayed for.
It shall be filed in
seven (7) clearly legible copies together with
proof of service thereof on the respondent with
the original copy intended for the court
indicated as such by the petitioner, and shall be
accompanied by a clearly legible duplicate
original or certified true copy of the judgment,
order, resolution, or ruling subject thereof, such
material portions of the record as are referred to
therein, and other documents relevant or
pertinent thereto. The certification shall be
accomplished by the proper clerk of court or by
his duly authorized representative, or by the
proper officer of the court, tribunal, agency or
office involved or by his duly authorized
representative. The other requisite number of
copies of the petition shall be accompanied by
clearly legible plain copies of all documents
attached to the original.
The petitioner shall
also submit together with the petition a sworn
certification that he has not theretofore
commenced any other action involving the
same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other
action or proceeding, he must state the status of
the same; and if he should thereafter learn that a
similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days
therefrom.
The petitioner shall
pay the corresponding docket and other lawful
fees to the clerk of court and deposit the amount
of P500.00 for costs at the time of the filing of
petition.
The failure of the
petition to comply with any of the foregoing
requirements shall be sufficient ground for the
dismissal of the petition. (n)
Sec. 4. Jurisdiction over person of
respondent, how acquired. - The court shall
acquire jurisdiction over the person of the
respondent by the service on him of its order or
resolution indicating its initial action on the
petition or by his voluntary submission to such
jurisdiction. (n)
Sec. 5. Action by the court. - The
court may dismiss the petition outright with
specific reasons for such dismissal or require the
respondent to file a comment on the same
within ten (10) days from notice. Only pleadings
required by the court shall be allowed. All other
pleadings and papers may be filed only with
leave of court. (n)
Sec. 6. Determination of factual
issues. - Whenever necessary to resolve factual
issues, the court itself may conduct hearings
thereon or delegate the reception of the
evidence on such issues to any of its members
or to an appropriate court, agency or office. (n)
Page 282 of 296
 Sec. 7. Effect of failure to file
comment. - When no comment is filed by any of
the respondents, the case may be decided on
the basis of the record, without prejudice to any
disciplinary action which the court may take
against the disobedient party. (n)
End of Rule 46.
Rule 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
This is different from certiorari, prohibition, mandamus.
Remember the Judiciary Law under Sec. 9. The SC has
exclusive original jurisdiction in actions for annulment of
judgment of the RTC. in other words, it is an entirely new
action for annulment of judgment of the RTC. It’s just the same
as filing an annulment of contract under the Civil Code. Only
in the Civil Code you are filing a case to annul a contract. This
time, you are annulling a judgment. Take note that Rule 47 is
an entirely new Rule. All the provisions are new. Before the
1997 Rules, there were no specific guidelines on how to bring
an action before the CA for annulment of judgment. It is only
now under the new rules that a specific rule came out. So,
you better connect this Rule 47 with Sec. 9 (b) of the Judiciary
Law because annulment of judgment is found in this provision.
Sec. 1. Coverage. - This
Rule shall govern the annulment by the Court of
Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts
for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate
remedies are no longer available through no
fault of the petitioner. (n)
Q: How do you describe the remedy for petition for relief
from judgment under Rule 38? How do you describe that
remedy when your remedy for motion for new trial is
already lost?
A: That is an available remedy. Provided you file it within 60
days and six (6) moths. Briefly, the remedy of petition for
relief from judgment can be called a remedy to attack a
final and executory judgment. That’s a remedy to attack a
final and executory judgment.
Q: Aside from Rule 38, is there a remedy under the Rules of
Court to attack a final and executory judgment?
A: Yes.
Q: What is the remedy?
A: An action for annulment of judgment under Rule 47.
That is why Rule 38 and Rule 47 will be read together
because they have a common denominator. They are
remedies under the Rules of Court for attacking a final and
executory judgment.
Q: What is the ground for annulment of judgment? When
you file a petition to annul an RTC judgment, ano ang
ground mo?
A: The answer is found in Sec. 2 and the period to file the
action is found in Sec. 3:
Sec. 2. Grounds for
annulment. - The annulment may be based only
on the grounds of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud
shall not be a valid ground if it was availed of, or
could have been availed of, in a motion for new
trial or petition for relief. (n)
Sec. 3. Period for filing
action. - If based on extrinsic fraud, the action
must be filed within four (4) years from its
discovery; and if based on lack of jurisdiction,
before it is barred by laches or estoppel. (n)
Q: What are the grounds?
A: That it was secured through extrinsic fraud and lack of
jurisdiction.
Q: What do you mean by extrinsic fraud?
A: The same extrinsic fraud in Rule 38. On the other hand,
Sec. 2 says extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in a motion
for new trial or petition for relief.
Q: Suppose you lose a case, within the 15-day period what
are your remedies to have that judgment set aside so that
a new trial will be granted?
A: FAME.
Q: So, you failed to appear. So, Rule 38 tayo papasok,
petition for relief. Ano ang ground mo?
A: FAME. Pareho.
Q: Now, suppose you failed to avail of that remedy without
your fault. Meron ka pa bang pag-asa?
A: Yes. Itong Rule 47. Pero extrinsic fraud na lang. Paano
yong accident, mistake, excusable negligence? Wala
yan. The only recognized ground is Fraud (extrinsic fraud).
And the other ground is the lack of jurisdiction. Now, as I said,
this is based on jurisprudence. When the court has no
jurisdiction to try a case, and there was a judgment, I want to
attack the decision on the ground of lack of jurisdiction.
Q: How do I attack it?
A: The answer is, does the lack of jurisdiction apparent on
the face of the decision or not? Apparent, meaning, by
simply reading the decision, you will easily see that the
court has no jurisdiction. Then, according to the SC, that
decision can be attacked directly or collateraly.
Q: What do you mean by directly?
A: By direct attack, means you file an action to declare its
nullity. You file a case. Collateral, meaning there is no
need to file a case. You can just raise it anytime.
Example: The RTC decided a case where the claim of the
plaintiff is only P5T. Obviously, it has no jurisdiction. By simply
reading the decision, alam mo na null and void.
Q: Do I have to file a case to attack that?
A: Pwede. But I can attack it collateraly. Meaning, I will
not file a case. I will raise that later. Bayaan ko lang. Then
here you come. you file a motion to execute. I will
oppose. you cannot execute because that judgment is
null and void. The court never acquired jurisdiction. So, I
need not file a case to declare it null and void. I will just
raise it as a ground for you not to execute. That is what you
call a collateral attack.
But when the ground for nullity is not apparent on the
face of the judgment, it is hidden, then you can only attack it
directly. You cannot attack the judgment collateraly.
Q: How do you do it?
A: BY filing an action for annulment of judgment under Rule 47.
Now, the other ground, is that judgment was secured
through extrinsic fraud. now, suppose your ground for nullity is
extrinsic fraud.
Q: Is there a deadline to file the annulment case under Rule
47?
A: Yes, Sec. 3. The action must be filed within four (4) years
from its discovery. That is the deadline. This has been
Page 283 of 296
 taken from decided cases. That is similar to civil action for
annulment of contract. When is the deadline to file an
action for annulment of contract on that ground? The
same, 4 years from the date of discovery of the fraud.
Suppose your ground is lack of jurisdiction which is
not apparent on the face of the judgment. The law says you
can file it before it is barred by laches or estoppel.
Q: Now, the question is, gaano katagal yan?
A: Now, there is a decided case where the SC said, the
period to file an action for annulment of judgment for lack
of jurisdiction, where the ground for lack of jurisdiction is not
apparent on the face of the judgment is ten (10) years
after the finality of the said judgment. That is based on Art
1144 (3) of the Civil Code. That is where the SC got the 10-
year period.
So, if it is based on extrinsic fraud, 4 years from the discovery of
the fraud. If it is based on lack of jurisdiction which is not
apparent on the face of the decision. Before it could be
barred on the principle of laches, estoppel or prescription, in
one case the SC said, it should be ten years under Art. 1144
(3) of the Civil Code.
Q: Suppose the judgment is void on its face.
A: As I said earlier, there is no need to file any action for
nullity because it can be attacked directly or collateraly.
Q: For how long?
A: There is a jurisprudence to the effect it can be raised
anytime. Walang prescriptive period because the
judgment is void on its very face. So, the court said: A
judgment which is void on its very face can be attacked at
anytime at any manner in any court. That is tantamount to
saying it can be attacked directly, collateraly and there is
no definite prescriptive period.
Let us go to some interesting cases on annulment of
contract.
ISLAMIC DAVAO COUNSEL vs. CA
173 SCRA 178
The question was asked: Can a
person who is not a party to the judgment
file an action for its annulment? That is
similar to the question in contracts. If you
are not a party to the contract, do you
have the personality to file an action for its
annulment? The general rule is no. But the
court said in this case: A person who is not
a party to the judgment may sue for its
annulment provided that he can prove that
the judgment was obtained through fraud
and that he would be adversely affected
thereby.
Can you file an action for
annulment of judgment when the judgment
had already been executed and
implemented? The court said yes. An
action for annulment of judgment may be
had even when the judgment sought to be
annulled had been fully executed and
implemented.
So, normally, you also ask for the nullity of the
execution. Kung hindi na-execute, there is no problem. You
simply file a case and you ask for a preliminary injunction in the
CA to stop the execution. Kung executed na, puwede pa rin
but he must also ask for the nullity of the execution.
Q: Let us try to go back. What is the ground for annulment
of judgment?
A: Extrinsic fraud.
Q: What is the difference between an intrinsic fraud and
extrinsic fraud?
A: Extrinsic where the party is denied his day in court.
Intrinsic fraud is fraud in the proceedings like the use of
false documents, etc. But that is not a ground for new trial
nor petition for relief. That is not also a ground for
annulment. Dapat, extrinsic fraud.
Now, there is one case on that issue, the recent case
of:
COSMIC LUMBER vs. CA
265 SCRA 168 (November 29, 1996)
Cosmic Lumber is the owner of a
piece of land occupied by somebody
illegally. Cosmic Lumber issued a resolution,
a special power of attorney in favor of, say,
a woman as its agent to file a case against
the illegal occupant. So, the attorney in
fact filed the case to eject the occupant.
While the case was going on, the attorney-
in-fact entered into a compromise
agreement with the occupant which
provided that the agent, in behalf of
Cosmic Lumber was selling the land to the
occupant. Ang SPA was to authorize the
agent to eject the occupant. Pero sa
compromise, the agent sold the land to the
occupant for only P26T. Of course, the
compromise agreement was submitted to
the court for approval and the court
approved it. So, there was a judgment
based on the compromise agreement. And
what was worse, the attorney in fact did not
turn over the money to the Cosmic Lumber.
It took Cosmic Lumber to learn about it. So,
it filed an action for annulment of judgment
on the ground of intrinsic fraud.
The case reached the CA. The CA
ruled that it cannot file the case because
the fraud was not committed by the
occupant but by its own representative.
Definitely there was fraud but the one who
committed it was Cosmic’s Lumber own
agent. The CA dismissed the action.
When the case reached the SC, it
said: The CA is wrong. The petition to annul
the decision of the trial court in the civil
case before the CA was proper. Emanating
as it deemed from a void compromise
agreement, the trial court had no
jurisdiction to render a judgment based
thereon. Therefore, since the compromise
agreement was void, the judgment based
on that agreement was also void. The court
said: The highly reprehensible conduct of
the attorney in fact constituted an extrinsic
fraud or collateral fraud by reason of which
the judgment rendered thereon should
have been struck down. The agent
deliberately concealed from her principal
that the compromise agreement had been
forged with the end result that a portion of
Cosmic’s property was sold ... Thus
completely kept unaware of its agent’s
artifice, Cosmic Lumber was not accorded
even a fighting chance to repudiate the
settlement so much so that the judgment
based thereon became final and
executory. For sure, the CA restricted the
concept of fraudulent acts with too narrow
Page 284 of 296
 limits. Fraud may assume different shapes
and be committed in many different ways.
And here lies the danger of attempting to
define fraud for none is ingenuity --- new
schemes to cool the aggrieved.
Sec. 4. Filing and
contents of petition. - The action shall be
commenced by filing a verified petition alleging
therein with particularity the facts and the law
relied upon for annulment, as well as those
supporting the petitioner’s good and substantial
cause of action or defense, as the case may be.
The petition shall
be filed in seven (7) clearly legible copies,
together with sufficient copies corresponding to
the number of respondents. A certified true
copy of the judgment or final order or resolution
shall be attached to the original copy of the
petition intended for the court and indicated as
such by the petitioner.
The petitioner shall
also submit together with the petition affidavits of
witnesses or documents supporting the cause of
action or defense and a sworn certificate that he
has not theretofore commenced any other
action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state
the status of the same, and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom. (n)
Just take note of the requirements in par. (3). That is
similar to the requirement of affidavit of merits in Rule 37 and
Rule 38.
Sec. 5. Action by the
court. - Should the court find no substantial merit
in the petition, the same may be dismissed
outright with specific reasons for such dismissal.
Should prima
facie merit be found in the petition, the same
shall be given due course and summons shall be
served on the respondent. (n)
Sec. 6. Procedure. - The
procedure in ordinary civil cases shall be
observed. Should a trial be necessary, the
reception of the evidence may be referred to a
member of the court or a judge of a Regional
Trial Court. (n)
Q: Suppose you obtain a judgment in your favor but it was
declared void because of, say, lack of jurisdiction. Can I
file the same case all over again?
A: Yes.
Q: Paano kung nag-prescribe na?
A: Read Sec. 7.
Sec. 7. Effect of
judgment. - A judgment of annulment shall set
aside the questioned judgment or final order or
resolution and render the same null and void,
without prejudice to the original action being
refiled in the proper court. However, where the
judgment or final order or resolution is set aside
on the ground of extrinsic fraud, the court may
on motion order the trial court to try the case as
if a timely motion for new trial had been granted
therein. (n)
So, if your ground is lack of jurisdiction, it can be
refiled. If the ground is extrinsic fraud, then the effect is, the
court may order the trial court to try the case as if a timely
motion for new trial has been granted. So, it s similar to
petition for relief. so, please connect this with Rule 38, Sec. 6.
It will have the same effect as new trial and petition for relief.
Halimbawa, nag-lapse na? How will I file the case
kung prescribed na? Sec. 8:
Sec. 8. Suspension of
prescriptive period. - The prescriptive period for
the refiling of the afore-said original action shall
be deemed suspended from the filing of such
original action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic fraud
is attributable to the plaintiff in the original
action. (n)
So, the pendency of the original action which was
annulled will suspend the running of the prescriptive period for
annulment. However, if the ground is extrinsic fraud and it is
committed by the plaintiff, then the prescriptive period will
continue to run. It will not be interrupted because it’s
attributable to the plaintiff in the the original action. Siya ang
may kasalanan so he should suffer for the fraud that he
committed.
Sec. 9 Relief available. -
The judgment of annulment may include the
award of damages, attorney’s fees and other
relief.
If the questioned
judgment or final order or resolution had
already been executed , the court may issue
such orders of restitution or other relief as justice
and equity may warrant under the
circumstances. (n)
Sec. 10. Annulment of
judgments or final orders of Municipal Trial
Courts. - An action to annul a judgment or final
order of a Municipal Trial Court shall be filed in
the Regional Trial Court having jurisdiction over
the former. It shall be treated as an ordinary civil
action and sections 2, 3, 4, 7, 8 and 9 of this Rule
shall be applicable thereto. (n)
The last section. If you want to file an action for
annulment of judgment of an MTC, do not file it in the CA
because it has no jurisdiction. You file it by analogy to the RTC.
That is why there is now a direct provision on that. When the
new judiciary law took effect, I was asked this question, is there
such a remedy as annulment of judgment by the MTC?
Because the judiciary law only mentions judgments of an RTC.
Of course, kung may annulment ng judgment ng RTC, meron
din sa MTC. Although the law is silent.
Q: Kung annulment of judgment ng MTC, where will you file
the annulment case?
A: Definitely, hindi sa CA because it only acts on
annulment of judgments of the RTC. By analogy, sa RTC
also.
Q: Under what provision of the judiciary law?
A: Well, there is a very general provision there. All actions
which are not within the jurisdiction of any court or quasi-
judicial body belongs to the RTC. You can rely on that very
general provision. Ngayon, very clear na. Rule 47.
Page 285 of 296

End of Rule 47.
Rule 48
PRELIMINARY CONFERENCE
SECTION 1. Preliminary conference. – at any
time during the pendency of a case, the court
may call the parties and their counsel to a
preliminary conference:
(a) To consider the possibility of an
amicable settlement, except when the case is
not allowed by law to compromised;
(b) To define, simplify and clarify the
issued for determination;
(c) To formulate stipulation of facts and
admissions of documentary exhibits, limit the
number of witnesses to be presented in case
falling within the original jurisdictions of court, or
those its appellate jurisdiction where a motion
for new trial is granted on the ground of newly
discovered evidence; and
(d) To take up such matters which may
aid the court in the prompt disposition of the
case.(Rule 7, Ca Internal Rules) (n)
SECTION. 2. Record of the conference. – The
proceedings at such conference shall be
recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the
action taken therein, the stipulations and
admissions made, and the issues defined. (n)
SEC. 3. Binding effect of the results of the
conference. Subject to such modifications which
may be made to prevent manifest injustice, the
resolution in the preceding section shall control
the subsequent proceedings in the case unless,
within five (5) days notice thereof, any party
shall satisfactorily show valid cause why the
same should not followed. (n)
End of Rule 48.
Rule 49
ORAL DOCUMENTS
SECTION 1. When allowed. – At its own
instance or upon motion of a party, the court
may hear the parties in oral argument on the
merits of a case, or on any material incident in
connection therewith. (n)
SEC. 2. Conduct of oral argument. – Unless
authorized by the court, only one counsel may
argue for a party. The duration allowed for each
party, the sequence of the argumentation, all
other related matters shall be as directed by the
court. (n)
SEC. 3. No hearing or oral argument for
motions. – Motion shall not be set for hearing
and, unless the court otherwise directs, no
hearing or oral argument shall be allowed in
support thereof. The adverse party may file
objections to the motions within five (5) days
from service, upon the expiration of which such
motion shall be deemed submitted for
resolution. ( 2a, R49)
End of Rule 49.
Rule 50
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Under
Section 1, an appeal may be dismissed by the CA on its own
(muto propio) or upon motion of the appellee. And there are
9 grounds for dismissal of appeal under Section 1.
SECTION 1. Grounds for dismissal
appeal. – An appeal may be dismissed by the
Court of Appeals, on its own motion or on that of
the appellee, on the followings grounds:
(a) Failure of the record on
appeal to show on its face that the appeal was
taken within the period fixed by the Rules;
(b) Failure to file the notice of
appeal or the record or the record on appeal
within the period prescribed by these Rules;
(c) Failure of the appellant to
pay the docket and other lawful fees as
provided in section 5 of Rule 40 and section 4 of
Rule 41;
(d) Unauthorized alterations,
omissions or additions in the approved record on
appeal as provided in section 4 Rule 44;
(e) Failure of the appellant to
serve and file the required number of copies of
his brief or memorandum within the time
provided by these Rules;
(f) Absence of specific
assignments or errors in the appellant’s brief , or
of page references to the record as required in
section 13, paragraphs (a), (c), (d) and (f) of
Rule 44;
(g) Failure of the appellant to
take the necessary steps for the correction or
completion of the record within the time limited
by the court in its order;
(h) Failure of the appellant to
appear ,at the preliminary conference under
Rule 48 or to comply with orders, circulars, or
directives of the court without justifiable cause;
and
(i) The fact that the order or
judgment appealed from its appealable. (1a ;En
Banc Resolution, Feb. 17, 1998.)
1. Failure of the record on
appeal to show on its face that
the appeal was taken within the
period fixed by the Rules;
This only applies in cases where a record on
appeal is required. Failure to show on its fact that the appeal
was perfected on time, meaning, the appeal might have
been perfected on time but by reading the record on
appeals, you will not see it.
Normally, that happens when the party didn’t
state the exact date when he received the decision. He may
just state the date of the decision without stating the date of
receipt. With that, the court will presume that you received it
on the date of the decision. It might be beyond the period to
appeal. So on its face, there is no showing whether the
appeal was within the 30 day period or not.
Page 286 of 296
 But if the appeal is from the RTC to CA, you must pay
The first gournd is called MATERIAL DATA RULE, that the docket fees because it is a specific ground for dismissal
the record on appeal must show on its face that the appeal under Rule 50.
was taken on time.
4. Unauthorized alterations,
In the case of BERKENKOTTER vs. CA (1973), the SC omissions or additions in the
already refused to apply this ground. But it was revived. approved record on appeal as
provided in section 4 Rule 44;
Lack of jurisdiction of the court could be raised at
any part of the proceeding. The ground would be it was filed That’s only when there is a record on appeal.
out of time, hence you’re actually questioning the jurisdiction When the record on appeal is approved, you have to
of the court. reproduce it and you are not allowed to make alterations,
revisions or additions.
If the record fo appeal isn’t yet forwarded to the
CA, file the motion to dismiss with the RTC. If the record of 5. Failure of the appellant to
appeal was already forwarded to CA, file motion to dismiss serve and file the required
with CA. number of copies of his brief or
memorandum within the time
Don’t confuse the 1st and 2nd provided by these Rules;
ground.
Failure of the appellant to serve and file the
2. Failure to file the notice of required number of copies of his brief is a ground for dismissal
appeal or the record or the of the appeal.
record on appeal within the
period prescribed by these Rules; Q: Suppose it is the appellee who didn’t file any brief, what
will happen?
Under par (a), the appeal was filed on time but the A: you do not dismiss the appeal but the case will be
record on appeal does not show that it was filed on time. submitted for decision w/o appellee’s brief. The CA will
Here in par (b), the appeal is really out of time. You can raise make a resolution that the case was submitted w/o the
this ground in the trial court. The trial court is also authorized to appellee’s brief.
dismiss an appeal on this ground (Rule 41, section 13). But
assuming you failed to raise it in the trial court, you can raise it Q: does that mean to say na talo na yung appellee?
in the CA. A: NO. there are many cases I’ ve seen where the apellee
didn’t file any brief. Talo parin ang appellant ‘coz anyway
Q: are you under the estoppel for not raising it earlier in the appelant’s brief has no merit. But normally inc ases na
RTC? Why did you not bring it out earlier at hinintay pa sa delikado, better file an appelle’s brief. You owe that to
CA? your client. Just imagine, lahat ng arguments dun hindi
A: There is no estoppel here because actually this is a sagutin.. that’s very dangerous!
jurisdictional challenge. When the notice of appeal is filed
out of time or beyond 15 days, actually the judgment of 6. Absence of specific
the RTC has already become final & executory. So you are assignments or errors in the
now challenging the jurisdiction of CA. Meaning, you are appellant’s brief , or of page
trying to say that the CA has no jurisdiction to review on references to the record as
appeal a judgment of the RTC w/c has arleady been final required in section 13,
& executory. paragraphs (a), (c), (d) and (f) of
Rule 44;
Q: Does CA have the power to review & reverse an RTC
judgment which is already final & executory? If you file a brief w/o footnotes, w/o citing the law, w/o citing
A: No more. The judgment which is already final cannot the transcript, w/o citing the exhibit, that would be
be changed by the CA. the CA has no jruisdiciton to dismissmissed. That happened in the case of Del Rosario vs.
entertain the appeal in that case. CA.
DEL ROSARIO vs. CA
3. Failure of the appellant to 241 SCRA 553 (1995)
pay the docket and other lawful
fees as provided in section 5 of Petitioner’s plea for liberality in
Rule 40 and section 4 of Rule 41; applying these rules in preparing
Appellant’s Brief does not deserve any
Sec. 5, Rule 40 is aobut filing of docket fees if you appeal from sympathy. Long ingrained in our
the MTC to the RTC. Sec.4, Rule 41 refers to filing of docket jurisprudence is the rule that the right to
fees when the appeal is from RTC to CA. appeal is a statutory right & a party who
seeks to avail of the right must faithfully
Q: When do you pay the docket fee? comply with the rules. Deviations from the
A: within the 15-day period, you already pay it in the RTC rules cannot be tolerated. The rationale for
clerk of court, unlike before you pay it with the CA later. the strict attitute is not difficult to
That is why failure to pay the docket fee in the RTC is a appreciate. These ruels are designed to
ground for dismissal of the appeal because of this. facilitate the orderly disposition of appealed
cases. In an age where courts are
Q: But how about failure to apy the appeal fee in the MTC bedeviled by clogged dockets, these rules
prior to the transmittal to the RTC? Is it a ground for need to be followed by appellants with
dismissal by the CA? greater fidelity. Their observance can’t be
A: To my mind, NO because why will the CA dismiss it when left to the whims & caprices of appellants.
the appeal is in the RTC. Bakit ang CA magdismiss wala
naman ang kaso sa kanila. There is something wrong with 7. Failure of the appellant to
this amendment (Section 5, Rule 40) take the necessary steps for the
correction or completion of the

Page 287 of 296

 record within the time limited by
the court in its order;
Sometimes yung record kulang-kulang ba and the party
may be directed to work for the completion. If you fail to
complete the record, your appeal will be dismissed.
Connect this w/ Rule 41, Section 10 & Rule 44,
Sections 5-6 because these provisions talk also of completion
of record.
8. Failure of the appellant to
appear ,at the preliminary
conference under Rule 48 or to
comply with orders, circulars, or
directives of the court without
justifiable cause; and
This is a new ground.
9. The fact that the order or
judgment appealed from its
appealable. (1a ;En Banc
Resolution, Feb. 17, 1998.)
The fact that the judgment or order appealed from
is not appealable, interlocutory!
Q: What are the judgments or orders which are not
appealable?
A: Rule 41, Section 1.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief
or any similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing
an appeal;
(e) An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress, or
any other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or
against one or more of several parties
or in separate claims, counterclaims,
cross-claims and third-party complaints,
while the main case is pending, unless
the court allows an appeal therefrom;
and
(h) An order dismissing an action
without prejudice.
So if you appeal on any one of htem, the other
party can file a motion to dismiss on the ground that it is not
appealable.
Q: Is a default judgment appealable?
A: YES. It is appealable because it is a final judgment & not
merely interlocutory. Default judgment is now covered by
Rule 41 on final judgments.
DISMISSAL OF IMPROPER APPEAL
SEC. 2. Dismissal of improper appeal
to the Court of Appeals. An appeal under Rule
41 taken from the Regional Trial Court to the
Court of Appeals raising only questions law shall
be dismissed , issues purely of law not being
reviewable by said court. Similarly, an appeal
by notice of appeal instead by the petition for
review from the appellate judgment of a
Regional Trial Court shall be dismissed . (n)
An appeal erroneously
taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be
dismissed outright. (3a)
Under the the 1964 Ruels, the rule is if there is wrong
appeal like pure question of law to the CA, the CA should not
dismiss the appeal but elevate it to SC. That rule has long
been abandoned. In the case of MORILLO and Circular 2-90:
kung question of law you better appeal to the SC. If you
appeal to the CA, the CA will dismiss it.
MORILLO vs. CONSUL
There is no longer any
justification for allowing transfers of
erroneous appeals from one court to
the oter, much less for tolerating
continued ignorance of the law on
appeals.
Note: this does not apply when the appeal to the CA is from a
quasi-judicial body. Appeal from a quasi-judicial b ody on a
pure question of law should be to the CA, never to the SC.
Compare this w/ Rule 42, Section 2.
Sec. 2. Form and contents. - The
petition shall be filed in seven (7) legible copies,
with the original copy intended for the court
being indicated as such by the petitioner, and
shall:
xxxx
(c) set forth concisely a statement
of the matters involved, the issues raised, the
specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court,
and the reasons or arguments relied upon for the
allowance of the appeal;
xxxx
Errors of fact or law, or both. This refers to petition for review
from the RTC to CA.
Q: What happens if an appeal is already take to the CA?
A: It shall be dismissed outright. Under the ’64 Rules, the CA
will pass it on to the SC. But liberal policy has now been
changed.
Ther is no longer any justification for allowing
transfers of erroneous appeals from one court to the other,
much less for tolerating continued ignorance of the law on
appeals.
WITHDRAWAL OF APPEAL
SEC. 3. Withdrawal of appeal - An
appeal may be withdrawn as of right at any time
before the filling of the appelle’s brief. Thereafter,
the withdrawal may be allowed in the discretion
of the court . (4a).
Q: Can you withdraw the appeal in the RTC level?
A: Yes, prior to the transmittal of the original record or the
record on appeal, the court may allow the withdrawal of
the appeal. (Sec 9, Rule 41)
Page 288 of 296
Q: where will you file the motion to withdraw?
A: in the RTC if the records are still in the RTC. If the records
of appeal is already in the CA, you file the motion to the
CA at anytime before the filing of the appellee’s brief you
can withdraw it as a matter of right. When there is already
an appellee’s brief, it can be allowed in the discretion of
the Court (Section 3). That is similar to Rule 17, Section1.
Sec. 1. Dismissal upon notice by
plaintiff. - A complaint may be dismissed by a
plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for
summary judgment. Upon such notice being
filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except
that a notice operates as an adjudication upon
the merits when filed by a plaintiff who has once
dismissed in a competent court an action based
on or including the same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in
the lower court?
A: Yes, as a matter of right for as long as there is still no
answer filed. But when the defendant has filed an answer,
dismissal of the complaint is already discretionary upon the
court. So it is the same.
End of Rule 50.
Rule 51
JUDGMENT
SECTION 1. When case deemed
submitted for judgment.- A case shall be
deemed submitted for judgment:
A. In ordinary appeals –
1) Where no hearing on the
merits of the main case is held, upon the filing of
the last pleading, brief, or memorandum
required by the Rules or by the court itself, or the
expiration of the period for its filing.
2) Where such hearing is held,
upon its termination or upon the filing of the last
pleading or memorandum required or permitted
to be filed by the court, or the expiration of the
period for its filing.
B. In original actions and petitions
for review. –
1) Where no comment is filed,
upon the expiration of the period to comment.
2) Where no hearing is held ,
upon the filing of the last pleading required or
permitted to be filed by the court, or the
expiration of the period of its filing.
3) When a hearing on the merits
of the main case is held, upon its termination or
upon the filing of the last pleading or
memorandum as may be required or permitted
to be filed by the court, or the expiration of the
period of its filing. (n)
SEC.2. By whom rendered. – The
judgment shall be rendered by the members of
the court who participated in the deliberation on
its merits of the case before its assignment to a
member for the writing of the decision. (n)
SEC. 3. Quorum and voting in the
court. – The participation of all three Justices of
a division shall be necessary at the deliberation
and the unanimous vote of the three Justices
shall be required for the pronouncement of a
judgment or final resolution. If the three Justices
do not reach a unanimous vote, the clerk shall
enter the votes of the dissenting Justices in the
record. Thereafter, the Chairman of the division
shall refer the case, together with the minutes of
the deliberation, to the Presiding justice who
shall designate two Justices chosen by raffle
from among all the other members of the court
to sit temporarily with them, forming a special
division of five Justices. The participation of all
the five members of the special division shall be
necessary for the deliberation required in
section 2 of this Rule and concurrence of a
majority of such division shall be required for the
pronouncement of a judgment or final
resolution. (2a)
SEC. 4. Disposition of a case. –
The Court of Appeals, in the exercise of its
appellate jurisdiction, may affirm, reverse, or
modify the judgment or final order appealed
from, and many direct a new trial or further
proceedings to be had (3a)
The CA operates by division. There are more than 50
justices there. Every division is composed of 3. The 3 must be
unanimous.. in case there is no unanimity, there should be a
special division of 5 to hear the case all over again and the
majority rules. Although from what I gathered in CA, this is a
farce. Actually they don’t discuss it, they will just give it to the
ponente. Tapos sabihin ‘concur’. Bihira lng talaga ang naga-
participate unless siguro malakas ka sa isang justice and then
mag-dissent para magkaroon ng division of 5. that is not really
the intention of the law.
Let’s go back to Rule 36. every decision or resolution
should clearly and distinctly state the facts and the law on
which it is based. If a decision does not state its basis, it is a SIN
PERJUICIO judgment.. that is not a valid judgment. The
requirement applies to all courts whether MTC, RTC or CA. This
is emphasized in Section 5.
SEC. 5 Form of decision . – Every
decision or final resolution of the court in
appealed cases shall clearly and distinctly state
the findings of fact and the conclusions of law on
which it is based, which may be contained in
the decision or final resolution itself, or adopted
from those set forth in the decision, order , or
resolution appealed from .(Sec. 40, B.P. Blg. 129)
(n)
The CA must state its findings and conclusions or
according to Section 5 it may simply adopt the findings and
conclusions set forth in the decision or order appealed from. If
the CA is going to affirm the judgment of the RTC, it may
simply copy or adopt the findings and conclusions of the RTC.
It is called a “MEMORANDUM DECISION”
Q: is this provision not an invitation to the laziness
on the part of the CA justices?
A: if the CA will affirm the judgment of the RTC, the work is
easier because it may simply adopt on its own the findings
of the RTC. If the CA would reverse the decsion, the job
would be more difficult, because it would write an entirely
new decision to rebut or dispute the findings of the RTC.
Page 289 of 296
 This is why when this provision came out in the Judiciary
Law, there was a sort of fear that this might be the cause of
laziness.
SC, well aware of that danger, clarifies in one case
that memorandum decisions are not allowed in all cases. The
CA is only allowed to render a memorandum decision in
simple cases especially when the appeal is dilatory and there
is nothing wrong in the appealed decision. But if the case is
complicated or complex even if CA would affirm the decision,
it can’t simply copy the work of the RTC. It should write its own
decision. The limitation or guidelines was issued by the SC
precisely to avoid the danger of laziness on the part of CA
justices.
FRANCISCO vs. PERMSKUL
173 SCRA 324
The Court finds it necessary to
emphasize that the memorandum
decision should be sparingly used lest
it become an addictive excuse for
judicial sloth. It is an additional
condition for its validity that this kind of
decision may be resorted to only in
cases where the facts are mainly
accepted by both parties or easily
determinable by the judge and there
was no doctrinal complications
involved that will require an extended
discussion of the laws involved. The
memorandum decision may be
employed in simple litigations only,
such as ordinary collection cases,
where the appeal is obviously
groundless and deserves no more
than the time needed to dismiss it.
Q: When is a case deemed submitted for
judgment?
A: Section 1 of Rule 51.
SEC. 6. Harmless error – No error in
either the admission or the exclusion of
evidence and no error or defect in any ruling or
order or in anything done or omitted by the trial
court or by any of the parties is ground for
granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears
to the court inconsistent with substantial justice.
The court at every stage of the proceeding must
disregard any error or defect which does not
affect the substantial rights of the parties . (5a)
SEC. 7. Judgment where there are
several parties. In all actions or proceedings, an
appealed judgment may be affirmed as to
some of the appellants, and reversed as to
others, and the case shall thereafter be
proceeded with, so far as necessary, as if
separate actions had been begun and
prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs
may be adjudged in such cases, as the court
shall deem proper. (6)
Q: When there are 2 mor more plaintiffs or 2 or more
defendants in the cases appealed, is it possible that the
CA will render decision for 1 plaintiff but against the other
plaintiffs, or in favor of 1 defendant and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs
will lose especially when the facts are not identical. This is
also true in cases of 2 or more defendants when each one
interposes separate defenses. The defense of one may be
true, others may be false. It is possible that one defendant
will win and other defendants will lose.
Q: Suppose there are 2 defendants in a case. All of htem
lost. Defendant A appealed. Defendant B did not appeal.
On appeal, defendant A won. Will the appeal of A benefit
B who didn’t appeal?
A: GENERAL RULE: no, the appeal would only benefit the
appealing defendant. The judgment becomes final to
those who did not appeal even if it is wrong.
EXCEPTION: when the liability of the 2 parties are so
intertwined that it would be absurd that one of them will
win and the other will lose. Thus, the appeal by the
appealing party benefits his co-party who did not appeal..
this principle was laid down in some cases.
UNIVERSAL MOTORS CORP vs. CA
205 SCRA 428
when the obligation of the
other solidary debtors is so dependent
ont hat of their co-solidary debtor, the
release of the one who appealed,
provided it be not on the grounds
personal to such appealing private
respondent, operates as well as to
others who did not appeal. It is for this
reason that a decision or judgment in
favor of the private respondent who
appealed can be invoked as res
judicata by the other private
respondents. So their liabilities are so
intertwined.
The rule is so similar in Criminal Procedure. When the
appeal of one accused benefits his co-accused who did not
appeal especially when the defense of such appealing
accused applicable to him.
SEC. 8. Questions that may be
decided. – No error which does not affect the
jurisdiction over the subject matter or the validity
of the judgment appealed from or the
proceedings therein will be considered unless
stated in the assignment of error, or closely
related to or dependent on an assigned error
and properly argued in the brief, save as the
court may pass upon plain errors and clerical
errors. (7a)
Q: can the CA decide an issue w/c was not raised by the
parties? Can the CA correct the error which was never
assigned by the other party?
A: GENERAL RULE: only erros which are stated in the
appellant’s brief should be considered. Ifhte error is not
assigned, that can’t be corrected. This is just an extension
of the rule that objections and defenses not pleaded are
deemed waived.
EXCEPTION: the following are matters can be
corrected or the court can take cognizance even if the
parties did not raise them:
1. jurisdiction over the subject matter of the
case;
2. plain errors;
3. clerical errors;
4. errors w/c are not assigned but closely
related to or dependent on an assigned error
Page 290 of 296
 ABEJARON vs. CA
208 SCRA 899
An unassigned error closely
related to the error properly assigned,
or upon w/c the determination of the
question raised by the error properly
assigned is dependent, will be
considered by the appellate court
notwithstanding the failure ot assign it
as error.
While an assignment of error
which is required by law or rule of
court has been held essential to
appellate review, and only those
assigned will be considered, there are
a number of cases which appear to
accrd to the appellate court a broad
discretionary power to waive this lack
of proper assignment of errors and
consider errors not assigned.
CASA FILIPINO ROYALTY CORP vs. OFFICE OF
THE PRESIDENT
241 SCRA 165
While the rule is that no error
w/c does not affect jurisdiction will be
considered unless stated in the
assignment of errors, the trend in modern-
day procedure is to accord the courts
broad discretionary power such that the
appellate court may consider matters
bearing ont eh issues submitted for
resolutioin which the parties failed to raise
or which the lower court ignored.
2nd exception – plain error
Q: What is a plain error?
A: A plain error can be corrected by the appellate court
even if not asked by the parties. Plain errors is talagang
obvious mistake – one which is apparent to the eye.
Suppose the trial court made an error in applying a
lw or in interpreting a law, but if it were not attacked by the
losding party and it was not corrected on appeal.
Q: Is it a plain error?
A: It would seem NO and yet that is what happened in the
1993 case of SANTOS vs. CA (221 SCRA 42)
The appellant is the one who appeals and it is he
who will file the appellant’s brief and then he will make the
assignment of errors. The appellee will refute the appellant’s
assignment of errors which were committed by the trial court.
Q: Can the appellee impute errors or make assignment of
errors?
A: GENERAL RULE: No. if you are an appellee, you are not
appealing and thus you are accepting the decision. So if
you think the decision is in your favor pero mali parin, you
ust also appeal.
Meaning the court made a mistake in arriving at the
decision but the decision is correct. Yan pwede yan. But if
you want the decision to be changed, then you must also
appeal.
Let us go to the case of SANTOS which involves the
law on lease, particularly the interpretation and the
application of Article 1678 Civil Code. Under the law on lease,
suppose I will rent to you my land and you built a building
there and there is no agreement as to who will own the
building after the termination of the lease.
Q: Suppose there’s no stipulation, who will own the building?
A: According to the Civil Code, the owner of the land has
the option to acquire the building by paying one half of its
value. Pero, if I don’t want to appropriate the building,
then you have the right to remove the bulidng provided
you will not damage the land. So the option to pay you
belongs to the owner of the land. The lessee cannot
compel the owner of the land to pay.
SANTOS vs. CA
221 SCRA 42
It is true that the rule is well-
settled that a party cannot impugn the
correctness of a Judgment not
appealed from by him, and while he
may make counter-assignment of errors,
he can do so only to sustain the
judgment on other grounds but not to
seek modification or reversal thereof for
in such a case he must appeal. A party
who does not appeal from the decision
may not obtain any affirmative relief
from the appellate court other than
what he has obtained from the lower
court, if any, whose decision is brought
up on appeal. However, the Rules of
Court and jurisprudence authorize a
tribunal to consider errors, although
unassigned, if they involve (1) errors
affecting the lower court’s jurisdiction
over the subject matter, (2) plain errors
not specified, and (3) clerical errors.
Under Article 1678, it is the
lessor who has the option to pay for one-
half of the value of the improvements
which the lessee has made in good
faith. The lessee cannot compel the
lessor to appropriate and reimburse.
Therefore, the decision of the RTC
ordering the lessor is actually erroneous.
Hence, the award of
reimbursement for improvements by the
trial court in favor of petitioners amounts
to a plain error which may be rectified
on appeal although not specified in the
appellee’s brief.
The trouble is, the landowner didn’t appeal. If we
follow the ruling, then lahat ng mali ng trial court ay plain error
na. That is what the SC said. Bakit man nagging plain error ito
when actually it will not quality as plain error? If we will follow
that line of reasoning, every mistake committed by a trial court
can be corrected being a plain error.
To my mind, merong equity ito eh. Analyze the case.
You are occupants for 28 years and you did not pay. Ayaw
mo lumayas, bayaran ka pa? There is something wrong there
already. I think that is the factor he.
So the SC said that it is too unfair for the landowner
still to be required to pay. Imagine they stayed there for 28
years, hindi pa nagbayad. I think those are the factors. So in
other words, equity bah! So the Court has to look for a reson
to justify. Ang nakita is plain error – when you don’t know how
to apply the law, then it is plain error. But actually, that should
be an assigned error. It is a very interesting case.
Page 291 of 296
 SEC. 9. Promulgations and notice of
judgment.- After the judgment or final resolution
and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause
true copies thereof to be served upon the parties
on their counsel (n)
SEC. 10. Entry of judgments and final
resolutions. – If no appeal or motion for new trial
or reconsideration is filed within the time
provided in these Rules, the judgment or final
resolution shall forthwith be entered by the clerk
in the book of entries of judgments. The date
when the judgment or final resolution becomes
executory shall be deemed as the date of its
entry. The record shall contain the dispositive
part of the judgment or final resolution and shall
be signed by the clerk, with a certificate that
such judgment or final resolution has become
final and executory. (2a, R36)
Q: Now, how do you execute a judgment of the CA?
A: Under Section 11, it depends if it is an orignal action or
an appealed case.
For an appealed case, in case of execution pending
appeal, take note that if the records of the case are already
elevated to the CA, motion for execution pending appeal
shoud already be filed there. And if the CA grants the motio
to execute pending appeal, it will follow the 3rd paragraph
there. It will issue the order and direct the RTC to enforce the
judgment.
Correlate this w/ Rule 39, Sections 1 & 2.
SEC. 11. Execution of judgment. –
Except where the judgment or final order or
resolution, or a portion thereof, is ordered to be
immediately executory, the motion for its
execution may only be filed in the proper court
after its entry.
In original actions in the
Court of Appeals, its writ of execution shall be
accompanied by a certified true copy of the
entry of judgment or final resolution and
addressed to any appropriate officer for its
enforcement.
In appealed cases, where
the motion for execution pending appeal is filed
in the Court of Appeals at a time that it is
possession of the original record or the record
on appeal, the resolution granting such motion
shall be transmitted to the lower court from
which the case originated, together with a
certified true copy of the judgment or final order
to be executed, with a directive for such of
origin to issue the proper writ for its enforcement.
(n)
End of Rule 51
Rule 52
MOTION FOR RECONSIDERATION
SECTION 1. Period for filing – A party
may file a motion for reconsideration of a
judgment or final resolution within fifteen (15)
days from notice thereof, with no proof of
service on the adverse party. (n)
Q: Can a party file a motion for
reconsideration of a CA decision?
A: YES. That is very obvious.
SEC. 2. Second motion for
reconsideration . – No second motion for
reconsideration of a judgment or final resolution
by the same party shall be entertained. (n)
Q: Can you file more than one motion for reconsideration?
A: NO. No second motion for reconsideration of a
judgment or final resolution by the same party shall be
entertained. There is no such thing as second motion for
reconsideration.
Section 2 of Rule 52 is also in accord with Section 11
of the Judiciary law. Section 11 of the Judiciary law governs
how many times you can file a motion for reconsideration in
the CA.
BP 129, Section 11. Quorum -
“ xxx A motion for
reconsideration of its decision or final resolution
shall be resolved by the Court within 90 days
from the time it is submitted for resolution and no
second motion for reconsideration from the
same party shall be entertained.”
Under par. (3), the CA has 90 days from the time it is
submitted for the resolution to rule on a motion for
reconsideration.
SEC. 3. Resolution of motion . – In
the Court of Appeals, a motion for
reconsideration shall be resolved within ninety
(90) days from the date when the court declares
it submitted for resolution. (n).
The CA is given only 90 days to resolve a motion for
reconsideration.
SEC. 4. Stay of execution . – The
pendency of a motion for reconsideration filed
on time and by the proper party shall stay
execution of the judgment or final resolution
sought to be reconsidered unless the court, for
good reasons, shall otherwise direct, ( n)
Q: what happens when a judgment of the CA is the object
of a motion for reconsideration? What happens to the
execution?
A: STAYED – it is not yet final unless the court for good
reasons shall otherwise direct like when there is a good
ground to execute pending appeal.
End of Rule 52.
Page 292 of 296
 Rule 53
NEW TRIAL
Q: What is the ground for new trial in the CA? When you file
a motion for new trial in the CA, what is the ground?
A: The ground for new trial I think is newly discovered
evidence. Read Sec. 1.
Sec. 1. Period for filing; ground. - At
any time after the appeal from the lower court
has been perfected and before the Court of
Appeals loses jurisdiction over the case, a party
may file a motion for a new trial on the ground of
newly discovered evidence which could not
have been discovered prior to the trial in the
court below by the exercise of due diligence
and which is of such a character as would
probably change the result. The motion shall be
accompanied by affidavits showing the facts
constituting the grounds therefor and the newly
discovered evidence. (1a)
So the ground for new trial. In the CA is only newly
discovered evidence. Similar to the second ground for new
trial in the RTC. But FAME , hindi kasali iyon. xxx mistake. Only
newly discovered evidence. Now this question is asked.
Suppose the case is before the SC, the appeal was in the SC.
Can a party file a motion for new trial before the SC? Ito CA ito
eh. Now the SC answered that question in the case of:
NAVARRA vs. CA
204 SCRA 850
This is a civil case. The rule in
criminal cases is not the same. I’m talking
about civil cases. According to the SC in the
case of Navarra, the rules of court allow
only 2 occasions when a party may file a
motion for new trial on the ground of newly
discovered evidence. That motion may be
filed only with the trial court under Rule 37 or
by the CA under Rule 53 but never with the
SC. Why is it that the SC cannot entertain a
motion for new trial? CA pwede, but not SC.
Because according to
Navarra : Time and again we have
stressed that the CA is not a trier of
facts. It is not the function of the
SC to analyze or weigh all over
again the evidence already
considered in the proceedings
below. Its jurisdiction being limited
to reviewing only errors of law that
may have been committed by the
lower courts. If there will be a
motion for new trial before the SC
and the court will grant it, you are
actually converting the SC into a
trial court. That is the reason.
Sec. 2. Hearing and order. - The
Court of Appeals shall consider the new
evidence together with that adduced at the trial
below, and may grant or refuse a new trial, or
may make such order, with notice to both
parties, as to the taking of further testimony,
either orally in court, or by depositions, or render
such other judgment as ought to be rendered
upon such terms as it may deem just. (2a)
Sec. 3. Resolution of motion. - In
the Court of Appeals, a motion for new trial shall
be resolved within ninety (90) days from the date
when the court declares it submitted for
resolution. (n)
Now, how does the CA conduct a new trial?
Suppose a new trial is granted, how will the CA conduct a new
trial. Read Sec. 4.
Sec. 4. Procedure in new trial. -
Unless the court otherwise directs, the procedure
in the new trial shall be the same as that granted
by a Regional Trial Court. (3a)
Q: if the motion for new trial is granted, can the CA
conduct the new trial itself acting as a trial court?
A: YES, under Section 4 and under the Judiciary Law
particularly section 9, the CA can receive evidence and
act as a trial court. That is why it is a powerful court.
End of Rule 53.
Rule 54
INTERNAL BUSINESS
SECTION 1. Distribution of cases
among divisions. – All the cases of Court of
Appeals shall be allotted among the different
divisions thereof for hearing and decision. The
Court of Appeals , sitting en banc, shall make
proper orders or rules to govern the allotment of
cases among the different divisions, the
constitution of such divisions, the regular rotation
of Justices among them, the filling of vacancies
occurring therein, and other matters relating to
the business of the court; and such rules shall
continue in force until repealed or altered by it
or by the Supreme Court. (1a)
SEC. 2. Quorum of the court. – A
majority of the actual members of the court shall
constitute a quorum for its sessions en banc.
Three members shall constitute a quorum for the
sessions of a division. The affirmative votes of the
majority of the members present shall be
necessary to pass a resolution of the court en
banc. The affirmative votes of three members of
a division shall be necessary for the
pronouncement of a judgment or final
resolution, which shall be reached in
consultation before the writing of the opinion by
any member of the division .( Sec. 11, first par. Of
B.P. Blg. 129, as amended by Sec. 6 of E.O. 33 ) (
3a)
End of Rule 54.
Page 293 of 296
 Rule 55
PUBLICATION OF JUDGMENT
AND FINAL RESOLUTIONS
SECTION 1. Publication. – The
judgments and final resolutions of the court shall
be published in the Official Gazette and in the
Reports officially authorized by the court in the
language in which they have been originally
written, together with the syllabi therefore
prepared by the reporter in consultation with the
writers thereof. Memoranda of all judgments and
final resolutions not so published shall be made
by the reporter and published in the Official
Gazette and the authorized reports. (1a)
SEC. 2. Preparation of opinions for
publication. – The reporter shall prepare and
publish with each reported judgment and final
resolution a concise synopsis of the facts
necessary for a clear understanding of the case,
the names of counsel, the material and
controverted points involved, the authorities
cited therein, and a syllabus which shall be
confined to points of law. (Sec. 22a, R.A. No.
296) (n)
SEC. 3. General make-up of volumes
– The published decisions and final resolutions of
the Supreme Court shall be called “ Philippine
Reports”, while those of the Court of Appeals
shall be known as the “ Court of Appeals
Reports” Each volume thereof shall contain a
table of the cases reported and the cases cited
in the opinions, with a complete alphabetical
index of the subject matters of the volume. It
shall consist of not less than seven hundred
pages printed upon good paper, well bound
and numbered consecutively in the order of the
volume published. (Sec. 23a, R.A. No. 296) (n)
End of Rule 55.
Rule 56
PROCEDURE IN THE SUPREME COURT
This is an entirely new provision. In the SC, there are 2 types of
cases: (1) ORIGINAL and (2) APPEALED. The SC has both the
original and appellate jurisdiction.
What are the original cases cognizable
by the SC
A. ORIGINAL CASES
SECTION 1. Original cases
cognizable – Only petitions for certiorari,
prohibition, mandamus, quo warranto, habeas
corpus, disciplinary proceedings against
members of the judiciary and attorney’s and
cases affecting ambassadors, other public
ministers and consuls may be filed originally in
the Supreme Court. (n)
You know them no? – certiorari, prohibition,
mandamus, quo warranto, habeas corpus cases affecting
ambassadors other public ministers and consuls – nasa
Constitution din yan. This is only a repetition of Article VIII,
Section 5(1) of the Constitution. Aside from that, the Rules of
Court give the SC authority to hear disciplinary proceedings
against members of the judiciary, disbarment or removal of
judges. SC man yan ba! And they are governed specially for
disbarment by Rule 139-B of Rules of Court.
SEC. 2. Rules applicable . – The
procedure is original for certiorari, prohibition,
mandamus, quo warranto and habeas corpus
shall be in accordance with the applicable
provisions of the Constitution, laws, and Rules 46,
48, 49, 51, 52 and this Rule, subject to the
following provisions:
(a) All references in said Rules
to the Court of Appeals shall be understood to
also apply to the Supreme Court;
(b) The portions of said Rules
dealing strictly with and specifically intended for
appealed cases in the Court of Appeals shall not
applicable; and
(c) Eighteen (18) clearly
legible copies of the petition shall be filed,
together with proof of service on all adverse
parties.
The proceedings for disciplinary
action against members of the judiciary shall be
governed by the laws and rules prescribed
therefore, and those against attorneys by Rule
139- B, as amended. (n)
These proceedings are actually governed more by
Rule 65 and 66. But they are also covered by Rule 46, 48, 49,
51 and 52 (CA) and it also applies to SC.
Q: when you file a petition before the SC for certiorari,
prohibition or mandamus, how many copies?
A: first filing – 18 copies minimum.
Q: why?
A: because you do not know whether it will be considered
as an en banc case or a division case. The SC operates in
2 ways. It decides cases either en banc or by division. 18
copies is required because 15 na ang justices, only 3 for
the clerk.
Q: How about subsequent pleadings? How many copies?
A: Depende. Kung en banc, all subsequent pleadings, still
18 copies. Kapag division case, 9 pa lang. Now,t here
are 3 divisons in the SC – the 1st, 2nd and 3rd divisions. And
every division is composed of 5 members.
B. APPEALED CASES
SEC. 3. Mode of appeal. – An appeal
to the Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed in
death, reclusion perpetua or life imprisonment.
(n)
There is only one way of appeal to the SC. Theonly
mode of appeal recognized is Pettion for Review by Certiorari
under Rule 45, except in criminal cases when the penalty
imposed by the RTC is death penalty, reclusion perpetua or life
imprisonment where ordinary appal is allowed.
Page 294 of 296

Connect this w/
Sec. 9. Rule applicable to both
civil and criminal cases. - The mode of appeal
prescribed in this Rule shall be applicable to
both civil and criminal cases, except in criminal
cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (n)
SEC. 4. Procedure. – The appeal
shall governed by and disposed of in
accordance with the applicable provisions of
the Constitution, laws, Rules 45, 48, sections 1,2
and 5 to 11 of Rules 51, 52 and this Rule, (n)
Q: What re the gornds for dismissial of an appeal before the
SC?
A: Section 5
SEC. 5.Grounds of dismissal of
appeal - The appeal may be dismissed motu
proprio or on motion of the respondent on the
following grounds:
(a) Failure to take the appeal
within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite
docket fee and other lawful fees or to make a
deposit for costs;
(d) Failure to comply with the
requirements regarding proof of service and
contents of and the documents which
accompany the petition;
(e) Failure to comply with any
circular, directive or order of the Supreme Court
without justificable cause;
(f) Error in the choice or mode
of appeal; and
(g) The fact that the case is not
appealable to the Supreme Court. (n)
The grounds are identical w/ Rule 45, section 5.
SEC. 6. Disposition of improper
appeal – Except as provided in section 3, Rule
122 regarding appeals in criminal cases where
the penalty imposed is death, reclusion
perpetua or life imprisonment, an appeal taken
to the Supreme Court by notice of appeal shall
be dismissed.
An appeal by certiorari
taken to the Supreme Court from the Regional
Trial Court submitting issues of fact may be
referred to the Court of Appeals for decision or
appropriate action. The determination of the
Supreme Court on whether or not issues of fact
nare involved shall be final. (n)
This was already discussed in Rule 50, Section 2. A
wrong appeal is a ground for a dismissal of such appeal.
Q: if the appeal is on pure question of law (before SC)
and by mistake the party appealed to the CA, what will
happen?
A: the appeal will be dismissled under Rule 50. the CA will
not endore the case to the SC.
Q: suppose wou will appeal by certiorari to the SC under
Rule 45 but is mixed – hindi question of law lahat – what
will happen now in the appeal?
A: under Rule 56, Section 6, the SC may or may not
dismiss the appeal. It may refer the matter to the CA.
(not the same as Rule 50, section 2)
SEC. 7. Procedure if opinion is
equally divided. – Where the court en banc is
equally divided in opinion, or the necessary
majority cannot be had, the case shall again be
deliberated on, and if after such deliberation no
decision is reached, the original action
commenced in the court shall be dismissed; in
appealed from shall affirmed; and on all
incidental matters, the petition or motion shall be
denied. (11a)
Q: What happens if the jdugems ofhte SC are equally
divided?
There were 4 in attendance in a division
because 1 is absent, the result is 2:2. so we will deliberate
again, but still 2:2.
A: if that is so, the decision appealed from is considered
affirmed. In other words, the ruling in the lower court is
considered correct.
In criminal cases, if after deliberation the
justices are even. They delilberated but still it’s even. The
decision must be acquittal, it is in favor of the accused.
EN BANC CASES
When you appeal to the SC, there are 2 possibilities:
(1) it will be heard by a division or (2) casemight be decided
by the entire SC en banc.
Q: what cases are heard by the SC en banc?
A: a circular in 1993 issued by the SC enumerated the en banc
cases
(1) Cаses in w/c the constitutionality or validity
of any treaty, international or executive agreement,
law, executive order, presidential decree,
proclamation, order, instruction, ordinance or
regulations in question. (for example, Oil Deregulation
Law)
(2) Criminal cases in w/c the appealed
decision imposes death penalty; criminal cases
where a change of venue is required to avoid
miscarriage of justice where SC has to make an order
to change the venue;
(3) Cases raising novel question of law;
(4) Cases affecting ambassadors, other public
ministers or consuls;
(5) Cases involving decisions, resolutions, orders
of the COMELEC, COA or the Office of OMBUDSMAN,
SANDIGANBAYAN in administrative disciplinary cases
(6) Cases in w/c the penalty involved is a
dismissal of the judge, officer or employee of the
judiciary, disbarment of a lawyer or even suspension
of any of them for a period of more than 1 yr of fine
exceeding P10,000.
(7) Cases where a doctrine or principal of law
ladi down by the Court en bacn or division may be
modified or reversed.
(8) Cases assigned in a division which in the
opinion of at least 3 members thereof, merit the
attention of the Court en bacn and are acceptable
to the majority of the actual members of the court en
banc;
(9) All other cases as the court en banc, by the
majority of its actual members, may deem of
sufficient importance to merits its attention.
Page 295 of 296
End of Rule 56.

6
.

CONTRACT

Nov. 19,1997

Stipulation # 1: You deliver to me today 100 sacks of rice.

Stipulation # 2. You deliver to me today 100 sacks of corn.
Stipulation # 3. You deliver to me today 100 sacks of sugar.

Page 296 of 296