Dean Jara Lecture Notes in Remedial Law 2013

Plea of guilty in civil cases, specific denial is not applied, if pleaded, the court cannot compel the defendant to explain
why plea of guilt was given.
Denial without specificity in civil cases, it is tantamount to admission of allegations in the pleadings, and thus could
lead to a judgment on the pleadings. This is not allowed in criminal cases.
Quantum of evidence guilt should be proof beyond reasonable doubt in criminal cases, while only preponderance of
evidence is required in civil cases.
Jurisdiction of courts in civil actions, laws governing:
1. Constitution
2. Judiciary Act of 1848 (RA 296)
3. BP 129 and its amendments
4. Law creating the family court (1997)
5. Law creating the Sandiganbayan
General Law on jurisdiction: BP 129 and its amendments.
Note: The cases formerly taken in cognizance by the abolished Juvenile and Domestic Relations Court came under the
jurisdiction of the RTC under BP 129, which is in the concept of exclusive original jurisdiction. Then came the special law
creating the Family Court, which provides that the said court has exclusive original jurisdiction over cases involving
marriage, adoption, cases involving minors, habeas corpus involving minors, and other civil or criminal cases involving
minors.
BP 129 vs. special law on jurisdiction the special law generally prevails. (General law shall give way to special law,
except if the special law specifically provides otherwise or that the law allows parties to stipulate pertaining to the matter
of jurisdiction.)
Jurisdiction is a matter of substantive law.
This is not necessarily true. (Dean Jara) Substantive law deals with jurisdiction over the subject matter and/or
jurisdiction over the nature of the action. This is the aspect of jurisdiction governed by BP 129 and the other
substantive laws on jurisdiction.
Other aspects of jurisdiction governed by procedural law:
Jurisdiction over the person of the litigants governed by the RoC
Jurisdiction over the property involved governed by the RoC
Jurisdiction over the issues of the case governed by the RoC
Thus, jurisdiction as part of substantive law is limited to a court to decide the case insofar as the subject matter of the case
or the nature of the action. Jurisdiction over the litigants, the issues of the case and property involved are governed mostly
by procedural law, mostly under the Rules of Court.
BP 129 does not mention anything about the SC. It begins with the CA downwards, up to the MTC and the Sharia Courts.
Supreme Court exercises its authority from the Constitution. In the Constitution, the SC exercises original
jurisdiction and appellate jurisdiction. But the Constitution does not say that original jurisdiction of the SC is
exclusive, nor about the appellate jurisdiction being exclusive. The basis for this is in the old Judiciary Act of
1948 where SC jurisdiction is delineated in a very thorough manner, providing exclusive original and
appellate jurisdiction of the SC. Note that BP 129 did not repeal the old judiciary act and hence it is still in
force. What BP 129 did repeal are provisions of Judiciary Act of 1948 that are inconsistent with BP 129. The best argument
to support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129 last sub provides for the jurisdiction of the CA.
3. Exclusive appellate jurisdiction over all final judgments, resolutions, orders or awards of Regional Trial
Courts and quasi-judicial agencies, instrumentalities, boards or commission, including the Securities and
Exchange Commission, the Social Security Commission, the Employees Compensation Commission and
the Civil Service Commission, Except those falling within the appellate jurisdiction of the
Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under
Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1)
of the third paragraph and subparagraph 4 of the fourth paragraph of Section 17 of the
Judiciary Act of 1948.
The Constitution provides for a limited number of cases over which the SC can exercise original jurisdiction and limited
number of cases over which it can exercise appellate jurisdiction. These are not exclusive.
Art. VIII Sec. 5
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(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, instruction, 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 only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such
temporary assignment shall not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and 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 under-privileged. Such rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, 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.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.
The Constitution provides that the SC has original jurisdiction over cases involving ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus. Reading the 1987 Constitution with BP 129, we will find out that the same authority is given by BP
129 to other courts.
SCs Exclusive original jurisdiction:
Petitions for certiorari, prohibition or mandamus against CA, COMELEC, CoA and Sandiganbayan
Concurrent Jurisdiction: (Subject to Doctrine of Hierarchy of Courts and direct recourse only in cases when redress
desired cannot be obtained in the lower courts or when it serves the broader interest of justice)
With RTC:
Cases affecting ambassadors, other public ministers and Consuls
With CA:
Petitions for certiorari, prohibition or mandamus against RTC
Petitions for Writ of Kalikasan
With RTC and CA:
Petition for habeas corpus
Petition for quo warranto
Petitions for certiorari, prohibition or mandamus against MTC and other bodies
With RTC, CA and Sandiganbayan:
Petition for Writ of Amparo
Petition for Writ of Habeas Data
Appellate Jurisdiction:
By way of Certiorari under Rule 45 against CA, Sandiganbayan, RTC (pure questions of law only), CTA en banc and cases on
the constitutionality and validity of a law or treaty, international agreement or executive agreement, presidential decree,
proclamation order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of
a lower court.
BP 129 provides that CA exercises original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas
corpus.
BP 129 vests jurisdiction to the RTC to exercises original jurisdiction over certiorari, prohibition, mandamus, quo warranto
and habeas corpus.
In effect, there are 3 courts in the judiciary which exercise jurisdictions over certiorari, prohibition, mandamus, quo
warranto and habeas corpus: SC, CA and RTC. Thus, theoretically, if one has been wronged due to grave abuse of
discretion amounting to lack of jurisdiction, petition for mandamus can be filed with the SC immediately, based on the 1987
Constitution and BP 129.

However, Certiorari, Prohibition and Mandamus have been greatly limited by certain procedural rules. The
limitation is known as hierarchy of courts. (See Rule 65) Thus, while theoretically a petition can be filed directly to the
SC, one should follow the procedure under the principle of hierarchy of courts. In Rule 65, it is expressly provided that
petitions for Certiorari, Prohibition and Mandamus (and even Quo Warranto. Dean Jara) should be filed directly only with
two courts, a RTC or the CA. On analysis, Sec. 4 Rule 65 is a severe limitation on the right of an aggrieved party to avail of
Certiorari, Prohibition and Mandamus as provided for in the Constitution.
Rule 65, Sec. 4. Where petition filed.
The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be
assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable
only by the Court of Appeals.
Among the basic principles of the enactment of BP 129 was to do away with the concept of concurrent jurisdiction. BP 129
has not been able to do away entirely with concurrent jurisdiction. BP 129 does not use the term concurrent in vesting
jurisdiction upon courts. The law classifies jurisdiction into original jurisdiction; appellate jurisdiction; exclusive original
jurisdiction, and exclusive appellate jurisdiction; unlike that under the old Judiciary Act of 1948 where the law expressly
contained provisions that conferred concurrent jurisdiction over different cases upon different courts, which resulted in
confusion. Generally, BP 129 has been able to do away with the concept of concurrence of jurisdiction, except with respect
to certiorari, prohibition, mandamus, quo warranto and habeas corpus. Since the Constitution and BP 129 allocate original
jurisdiction upon 3 courts, then it is safe to conclude that these 3 courts exercise original and concurrent jurisdiction over
these petitions.
BP 129 WITH RESPECT TO THE COURT OF APPEALS:
Exclusive Original Jurisdiction only cases of annulment of judgment of an RTC.
Appellate Jurisdiction:
Ordinary appeal from RTC and Family Courts
Petition for review from RTC in exercise of its appellate jurisdiction
Petition for review from decisions, resolutions, orders or awards from CSC, Ombudsman in administrative cases and other
quasi-judicial agencies in exercise of its quasi-judicial functions as mentioned in Sec. 1 Rule 43.
Concurrent Jurisdiction: With SC:
Petitions for certiorari, prohibition or mandamus against the RTC
Petitions for Writ of Kalikasan
Petition for Mandamus against NLRC (But St. Martin Funeral Homes vs. CA says petition should be filed in CA instead of SC)
Concurrent Jurisdiction with RTC and SC:
Petition for habeas corpus
Petition for Quo warranto
Petitions for certiorari, prohibition or mandamus against the MTC and other bodies
Concurrent Jurisdiction with RTC and Sandiganbayan:
Petition for writ of Amparo
Petition for habeas data
The SC, despite being the supreme court of the land, is not a court of general jurisdiction, it exercises only limited original
jurisdiction as provided for under the Constitution. It is generally not a trier of facts. The same is true in the CA. In Sec. 9 BP
129, the CAs authority is very limited.
CA has exclusive original jurisdiction over Annulment of Judgment of an RTC under Rule 47. Does it mean that
the CA can annul a judgment rendered by an MTC?
Since the CA is a court of limited jurisdiction, it is allowed to annul judgment only judgments from the RTC. It cannot annul
decisions of an MTC.
Would it mean that the judgment of an MTC is immune from annulment of its judgment?
Yes. The decision of an RTC can be annulled by the CA. But the decision of an MTC is immune from annulment by the CA.
But, the decision of an MTC can be annulled by an RTC. It is not so provided in BP 129 that an RTC can annul a judgment of
an MTC, but it is provided for under Section 10 of Rule 47 on Annulment of Judgment in the Rules. Thus, jurisdiction is
vested in the RTC under the Rules for it to be able to annul judgments rendered by an MTC.
Can we then challenge the jurisdiction of RTC as BP 129, a special law, should take precedence over a
substantive law, as BP 129 does not expressly give the RTC the authority to annul judgment of an MTC? Why?
We cannot. This is because, under BP 129 there is an allocation to the RTC of jurisdiction to entertain and decide all kinds of
actions which are not especially given to other courts. This is the provision why an RTC can annul judgments of the MTC as
well as the reason why the RTC is considered as the real court of general jurisdiction in our justice system. Since no
substantive law has allocated to other courts the jurisdiction to annul judgments of an MTC, it follows now that the RTC is

the proper court to decide on the matter as provided under BP 129 for an RTC to entertain and decide all kinds of actions
not especially given to other courts.
Islamic Da'wah Case BP 129
The SC traced the history of annulment of judgment as an action. SC mentioned that before BP 129, the SC had recognized
the regularity and propriety of filing a petition to annul an MTC judgment in the RTC.
Can an RTC entertain and decide on cases of annulment of judgments of another RTC prior to BP 129? Why?
Before BP 129, SC held yes, because the RTC is a court of general jurisdiction. This is the reason why in BP 129, Congress
deemed it necessary to incorporate a provision giving exclusive authority to the CA to annul a judgment rendered by the
RTC to do away with the anomalous situation where an RTC is able to annul judgments rendered by another RTC, as there
was no specific substantive law prior to BP 129 which allocated to other courts the authority to annul judgments of the RTC.
A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation
that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic
Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
Can the SC annul the judgment of the CA?
No. The Constitution and BP 129 does not provide authority for the SC to annul judgments rendered by the CA. There is no
substantive law or special law authorizing SC to annul judgments rendered by the CA.
It does not mean that the decisions of the CA are immune from annulment. The SC could still exercise its equity jurisdiction,
most likely under Rule 65, in order to annul a judgment of the CA, based on the same grounds given under Rule 47,
extrinsic fraud and lack of jurisdiction.
Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or
from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to
the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23, 2005).
Extrinsic fraud or collateral fraud not a valid ground if it was availed of, or could have been availed of in a motion for
new trial or petition for relief.
Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Lack of jurisdiction over the subject matter and over the person May be barred by estoppels by laches, which is
that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do
something which one should do or to seek or enforce a right at a proper time. (1998 Bar Question)
What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of
such action is to have the final and executor judgment set aside so that there will be renewal of litigation.
Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive jurisdiction over
actions for annulment of judgments of RTC. An action to annul a judgment or final order of MTC shall be filed in the
RTC having jurisdiction in the former and it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his
allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby
(Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it from being
used by a losing party to make a mockery of a duly promulgated decision that has long become final and executory.
Q: Where should the petition be filed?
A:
Judgments of RTC
Filed with the CA
Basis It has exclusive original jurisdiction over said action
under Sec. 9 (2), BP 129
CA may dismiss the case outright; it has the discretion on
whether or not to entertain the petition.

Judgments of MTC
Filed with the RTC
Basis RTC as a court of general jurisdiction under Sec. 19
(6), BP 129
RTC has no such discretion. It is required to consider it as
an ordinary civil action.

If a judgment of an MTC can be the subject of annulment by CA or RTC as the case may be, can we also seek
annulment of the decisions by a quasi-judicial or administrative body?

Under BP 129, annulment of judgment, as procedurally explained in Rule 47, does not extend to the quasi-judicial or
administrative body, unless such provision was allowed by the charter of such administrative or quasi-judicial body.
Rule 47 refers to an action filed by a petitioner to annul a judgment rendered by an RTC in a civil case. This is
what literally BP 129 provided where CA is given the authority to annul decisions made by an RTC in a civil
action. Therefore, if the action is not a civil action or rendered by a quasi-judicial or administrative body, we
cannot use Rule 47. (possible Bar Q area)
Since Rule 47 says that the annulment contemplated in BP 129 refers to a judgment in a civil action, does it
mean to say that the judgment of an RTC acting as a criminal court cannot be subject to annulment of
judgment by the CA under Rule 47?
No. If the judgment of the RTC is a judgment in a criminal case, we cannot use Rule 47 as it is specifically stated in the said
rule that annulment of judgment is availing only to civil cases decided by the RTC. Rule 47 is not a remedy to annul
decisions or judgments rendered by the RTC as a criminal court. A decision of an RTC in a criminal case can be
annulled by filing a case for habeas corpus. Petition for habeas corpus is the equivalent in criminal cases of petition
for annulment of judgments in civil cases.
An RTC could act as a civil and criminal court. It exercises original actions over both actions. RTC decisions in civil actions
could be the subject of annulment by CA under rule 47, but Rule 47 does not apply if the decision is one rendered from
criminal cases. The remedy in order to annul a judgment in criminal cases is by filing a petition for habeas corpus. BP 129 is
very clear under Rule 47. What can be annulled under Rule 47 are judgments in civil cases only.
Is there a difference between Rule 47 (petition for annulment of judgment rendered by an RTC in a civil case)
and petition for habeas corpus?
There are substantial differences. Annulment under Rule 47 is a direct attack of a final and executory judgment, the only
purpose of which is to nullify and set aside a court decision in a civil case. But in a criminal case where the decision of the
RTC may not be valid due to lack of jurisdiction or extrinsic fraud, the remedy is petition for habeas corpus, which is an
indirect attack on the judgment of an RTC in the criminal case. When a habeas corpus petition is filed in order to nullify a
decision on a criminal case, the principal relief which the petitioner seeks is to declare the petitioner has been deprived of
his liberty unlawfully. It is not principally to set aside the judgment rendered by the RTC in a criminal case.
The remedy of petition for habeas corpus in criminal case are more advantageous than that of an annulment of judgment in
civil cases. This is because an annulment of judgment in civil cases is a direct attack against the judgment in the civil case,
while in the criminal cases, the detainee can challenge the validity of the judgment of conviction, although he is not
attacking directly the validity of the said judgment of conviction. He is attacking the validity of the deprivation of his liberty.
What is a collateral attack on judgment?
A: It is made in another action to obtain a different relief; an attack on the judgment is made as an incident
in said action. This is proper only when the judgment, on its face is null and void, as where it is patent that
the court which rendered such judgment has no jurisdiction(Co vs. Court of Appeals, 196 SCRA 705).
Note that Rule 47 is inserted in between the rules governing appeals. The procedure for appeal starts with Rule 40 up to 56.
Annulment of judgment has nothing to do with appeals as it is a civil action. Annulment of judgment is an original action
that can be filed in the RTC and CA. And, in Rule 47, when particularly applied to a petition for annulment commenced
before the CA, you will notice that some of the features of a special civil action are carried by a petition to annul the
judgment filed with the CA. For instance, if a petition to annul a judgment of an RTC in a civil case is filed in the CA, the CA
has the authority to outrightly dismiss the petition for lack of merit. This is similar to Rule 65, where the petition for
certiorari, prohibition or mandamus can be outrightly dismissed if it is not meritorious on its face.
What if the decision in the RTC was already final and executory, can the petition to annul judgment filed in
the CA stop the execution of the said judgment?
No. The petition will not stop the prevailing party from moving for the execution of the final and executory judgment in the
civil case, notwithstanding the commencement of the petition to have the judgment in the civil case annulled. The only
remedies available to a petitioner for annulment of judgment of an RTC in the CA is to apply for the provisional remedy of PI
or TRO to stop the RTC from proceeding with the execution of the said judgment.
Under Rule 47 in relation to BP 129 in the case of annulment of judgments of an RTC filed in the CA, is it
correct that only the litigants thereto can file the petition to annul a judgment in a civil case?
No. As held in the case of Islamic Da'wah vs. CA, the petition for annulment of judgment in BP 129 and Rule 47 does not
prohibit a stranger from filing a petition to annul judgment. He can do so, so long as he can show he will be prejudiced by
the judgment sought to be annulled.
Requirements:
1. All other Remedies of motion for new trial, petition for relief, appeal and other remedies are no longer available or to do
so will not redound to his benefit.
2. Through no fault of petitioner, remedies were unavailing
3. Petitioner is a stranger to the case (Islamic Dawah case)
In Islamic Dawah, in allowing a stranger to file annul a judgment, then he need not seek other remedies
since the stranger to a case cannot possibly avail of remedies that are available only to a litigant in a case.

While CA has authority to outrightly dismiss annulment of judgment, RTC cannot. Insofar as RTC is concerned, petition to
annulment of a judgment by an MTC should be treated as any normal civil case.
In Rule 47, if the judgment is annulled, it is declared void by the court. It is unenforceable, or if already enforced, CA can
order restitution if that is still possible.
Rule 47 in relation to BP 129 and Rule 132:
There are no grounds for annulment mentioned in BP 129.
Rule 47 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.
Judicial record must be discredited. Judgment of the court must be discredited by such
impeachment. In BP 129, there are no grounds for annulment mentioned at all. They are
mentioned in Rule 47 and Rule 132.
Rule 132 Sec. 29 . How judicial record impeached. Any judicial record may be impeached by
evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the
parties, or (c) fraud in the party offering the record, in respect to the proceedings.
3 grounds under Rule 132 to impeach judgment:
1. lack of jurisdiction
2. extrinsic fraud
3. collusion
Grounds under Rule 47to impeach judgment:
1. absence of jurisdiction over the subject matter
2. absence of jurisdiction over the person of the accused
3. Extrinsic fraud (this encompasses collusion as found under Rule 132)
Thus, there is no conflict between Rule 132 and Rule 47.
JURISDICTION OF THE RTC
Factors determining jurisdiction:
1. Whether or not action is capable of pecuniary estimation
2. whether or not the action is a real action
3. if the amount is known, whether the amount is within the ambit of the jurisdictional amount
Incapable of pecuniary estimation not all actions incapable of pecuniary estimation are cognizable by RTC
Note: Ex.
Under BP 129, these actions are not exclusively cognizable by an RTC:
1. Annulment of judgment rendered by RTC not capable of pecuniary estimation, cognizable only by the CA
2. Annulment of arbitral award by barangay court acting as arbitral body cognizable by MTC, as provided by
LGC, although incapable of pecuniary estimation.
3. Certiorari, prohibition and mandamus not exclusively cognizable by RTC, although incapable of pecuniary
estimation.
JURISDICTIN IN REAL ACTIONS TITLE TO OR POSSESSION OF PROPERTY
This area is qualified by BP 129 as amended as it has expanded the jurisdiction of MTCs.
What are the possessory actions on
A:
Accion Interdictal
Summary action for the recovery of
physical possession where the
dispossession has not lasted for
more than 1 year.
All cases of forcible entry and
unlawful detainer irrespective of
the amount of damages or unpaid
rentals sought to be recovered
should be brought to the MTC.

real property?
Accion Publiciana
A plenary action for the recovery of
the real right of possession when
the dispossession has lasted for
more than 1 year.
RTC has jurisdiction if the value of
the property exceeds P20,000 or
P50,000 in Metro Manila.
MTC has jurisdiction if the value
of the property does not exceed
the above amounts.

Accion Reinvindicatoria
An action for the recovery of
ownership, which necessarily
includes the recovery of
possession.
RTC has jurisdiction if the value
of the property exceeds P20,000
or P50,000 in Metro Manila.
MTC has jurisdiction if the value
of the property does not exceed
the above amounts.

Accion reinvindicatoria and accion publiciana RTC exercising original jurisdiction if property is worth above
20k/50k, as the case may be.
Is it possible a real action is at the same time one incapable of pecuniary estimation?

Yes. A good example of a real action that is incapable of pecuniary estimation is foreclosure of real estate mortgage.
It is not capable of pecuniary estimation as the determinative issue here is the right of the mortgagee to
foreclose, not the value of the property.
What do we do in determining jurisdiction of an action is a real action but is incapable of pecuniary
estimation? What factor will be determinative to determine jurisdiction of the court?
SC held that if the action carries the feature of real action and one incapable of pecuniary estimation, then the
determinative factor is the feature of incapable of pecuniary estimation. Thus, RTC has exclusive jurisdiction of foreclosure
actions, even if the assessed value of the property involved is less than the jurisdictional amount of the RTC. As long as the
action is foreclosure of mortgage, the RTC has jurisdiction.
The feature of foreclosure of mortgage as a real action will only be important in determining the venue, not the jurisdiction.
A similar action which applies the same principle is expropriation. Expropriation of a piece of land is one involving real
action, but it does not take into account the assessed value of the land in determining jurisdiction. Thus, it is real action,
although incapable of pecuniary estimation, as the right to expropriate is the main issue, not the value of the land
involved.
JURISDICTION IN MONEY CLAIMS
When it comes to personal actions, under BP 129, the determining factor will be the amount sought to be recovered if it is a
claim for money, or if it is recovery of personal property, it is the value of the personal property as alleged in the complaint.
The determining factor for jurisdiction in a pure collection suit is the principal sought to be recovered, exclusive of charges
interest, attorneys fees, damages etc. If the amount sought to be recovered by the plaintiff is 1M, it may be cognizable by
the RTC if it represents the aggregate amount of the claim, the principal amount being within the jurisdictional value
of the MTC. If the principal is only 200k and the rest are charges, damages, interest, etc., then the MTC has jurisdiction over
the case.
What if the plaintiff seeks only recovery of damages inclusive of actual, moral, nominal, etc.?
Ex. Plaintiff sought 100K actual, 500K moral and 500k exemplary damages. How do we determine jurisdiction
here?
Complaints purely for damages = the aggregate (total) amount of damages will determine jurisdiction, not the specific
amounts claimed. Thus, in the example, the RTC has jurisdiction. Even if the complaint specified the amount of damages for
each aspect, the aggregate amount shall determine the jurisdiction.
JURISDICTION OVER RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only in the case of real properties. Personal property values
have no bearing in jurisdiction. The value as stated in the complaint shall be determinative (whether the figure is
true or not).
Ex. Plaintiff sought recovery (replevin) of the car, claiming that is worth 800k (even if it is not true).If
defendant challenges the value, stating the car is 30 years old, and willing to submit evidence to show true
value, will the court entertain the defendants motion?
No. The court shall rely only on the allegations in the complaint. Once the court acquires jurisdiction, it cannot be ousted;
the court proceeds with the case until finally adjudicated.
What if it is found during trial that the car is actually worth far less than the value claimed? Will the court
remand the case to the lower court?
No. It will continue to hear until final judgment. There will be adherence of jurisdiction of the court over the case.
The court will continue trying the case until it is finally adjudicated.
The only way to oust jurisdiction in this regard is if Congress files a law abandoning the principle of
adherence of jurisdiction over a particular case. Dean Jara
With respect to MTCs, notwithstanding the expanded jurisdiction thereof, practically all cases decided by the RTC pertaining
to personal property can also be decided by the MTC, depending only on the value of the property involved.
Ex. Estate proceedings, accion reinvindicatoria, accion publiciana
Note: MTC is still a court of limited jurisdiction despite the expanded jurisdiction under BP 129 as amended. It can try only
the cases given to it under substantive law. The provision in BP 129 making the RTCs courts of general jurisdiction is not
given to MTCs. BP 129 stated explicitly that the RTC shall have exclusive original jurisdiction over all actions that are not
specially assigned to any other court. This is not contained in the allocation of jurisdiction of MTCs.
Vesting of authority to MTCs Sec. 33, the Totality test, is used in determining jurisdiction
Totality test is a proviso for ascertainment of jurisdiction, more encompassing than that provided in the
Rules.
Difference in Totality Test in the Rules vs. Totality Test in BP 129:
RoC totality test in Rule 2 concerns causes of action for money, as to the amount. The totality of the money
claims shall be determinative of jurisdiction of courts.

BP 129 the totality test refers to of all claims or causes of actions in a complaint, whether they refer to the
same or different parties or arising out of the same or differing transactions. This is more encompassing in
scope.
BP 129 has contained therein the provision on delegation of jurisdiction to the MTC and also the special
jurisdiction of the MTC.
The MTC, in its delegated jurisdiction, acts as if it were an RTC.
Ex. MTC acts as if it was a cadastral court (usually done by RTC). If the land registration or cadastral case is contested, the
assessed value of the contested property is determinative of jurisdiction. If uncontested, MTC acts as a cadastral as if it
were an RTC, there being no limitation as to jurisdiction. But BP 129 clearly states that if MTC acts as a cadastral court the
MTCs decisions on cadastral cases shall be appealable in the CA, not to the RTC (hierarchy of courts is not followed).
Habeas Corpus proceedings can be heard in the MTC, but only in situations where petition was filed in the RTC,
but no judges are available in the RTC, so the petition is transferred to an MTC wherein a judge is available.
The MTC gains jurisdiction as habeas corpus cases are urgent. In fact, habeas corpus cases are always given special
preference by the courts; and thus, if no RTC judges are available to hear the petition, the clerk of court in the RTC must
transfer the case to the MTC, and MTC must hear the petition promptly. BP 129 does not authorize the filing of the
habeas corpus case directly in the MTC. Petition for habeas corpus filed in the MTC can be challenged on jurisdictional
grounds because BP 129 does not vest unto an MTC an authority to entertain a petition for habeas corpus. It is only under
circumstances where there are no RTC judges available to entertain a petition for habeas corpus when an MTC judge can
now analyze and study the propriety the issuing of the writ of habeas corpus.
SPECIAL JURISDICTION OF MTCS.
Take note that the trial court still has residual jurisdiction to act on certain matters even if the case is already on appeal.
See
Rules 41 RoC. It is not correct to assume that if a case has been decided by the trial court. After an appeal is perfected, the
case is now under the jurisdiction of the appellate court. Do not assume that the case is entirely divested from the
jurisdiction of the trial court, even if there is a perfected appeal. The trial court continues to exercise jurisdiction over
certain matters for a limited period of time in its residual jurisdiction. After the expiration of that period, absolute
jurisdiction will now be exercised by the appellate court.
In Primary Jurisdiction, this involves quasi-judicial bodies. What happens in primary jurisdiction is that Congress enacts a
law which vests jurisdiction unto a quasi-judicial body to try and decide cases which are cognizable by regular courts under
BP 129. The reason why Congress enacts these laws is that Congress feels that the quasi-judicial body is better equipped to
decide disputes of litigants in certain cases than the regular courts.
Ex. HLURB has exclusive original jurisdiction to adjudicate disputes between subdivision buyer/s vs. subdivision
developers. In cases of breach of contract under the NCC on matters pertaining to the jurisdiction of quasi-judicial bodies,
the trial court cannot take cognizance of these matters, although BP 129 gives jurisdiction to regular courts over such
matters, given the fact that there is a substantive law vesting jurisdiction to the HLURB to decide on such disputes. This is
because it is presumed that the HLURB is better equipped than a regular court to decide on such cases due to its expertise.
What if the subdivision developer filed in the MTC a complaint for ejectment of a subdivision buyer who
allegedly violated the terms of the contract? The subdivision developer sought to recover the property from
the buyer, among other prayers. The subdivision buyer challenged that MTC has no jurisdiction over the case,
and that it is HLURB which is the proper body to take cognizance of the complaint. Does HLURB have
jurisdiction over the ejectment case?
SC held that the primary jurisdiction of the HLURB does not extend to complaints of ejectment filed by one party against
the other. In the case of primary jurisdiction vested by substantive law to quasi-judicial bodies, the authority of the quasijudicial body is interpreted strictly. Ejectment could really be a dispute between developer and buyer, but since the
complaint was for recovery of physical possession of the property (or even accion publiciana), SC held that regular courts
should take cognizance.
Note: Complaint for ejectment by subdivision developer vs. subdivision buyer was actually a suit for recovery of
possession of property.
Residual Jurisdiction found in appeal cases (Rules 41 and 42); jurisdiction enjoyed by the trial court to act on certain
matters for a very limited period, even if the case is on appeal.
Constitutional limits provided in the Constitution limiting SCs authority in promulgating rules:
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive rights
Any rule on procedure violating any one of the limitations given in the Constitution, the rule can be properly challenged as
to its validity and applicability.

A litigant challenged a rule on criminal procedure (Rule 115 Rights of the Accused). Litigant stated that Rule
115 is not procedural, and modified substantive rights as espoused in the Constitution, and should be
deleted in the RoC.
SC denied the petition. SC said that while the authority of the SC is to promulgate rules on proceedings, practice and
procedure, and that substantive rights should not be covered by the provisions of the Rules, SC said that it is practically
impossible for rules of procedure to be devised without incorporating certain provisions that are dealing substantive law.
The standard is that we take the Rules as a whole, and determine whether it is procedural in character. If the answer is yes,
and there are certain provisions speaking about substantive rights, that should not be a justification of deleting these
provisions in the RoC.
Also, SC noted that the NCC, a substantive law, contains procedural articles concerning court processes such as those
concerning unlawful detainer and forcible entry, but NCC still remain a substantive law.
The civil code provisions shall not be affected by the procedural provision in the Rules concerning the filing of claims
(Recovery of creditor of the whole debt from surviving solidary debtors). According to the Rules, the Rules of Court should
be interpreted liberally. But the interpretation is one not in favor of the plaintiff or defendant. The meaning of liberal
interpretation is to promote the ends of justice, to carry out the duty of the SC under the limitations given under the
Constitution.
PLEADINGS
COMPLAINT
General Rule: A civil action is always commenced with the filing of a complaint. This is the general rule. Some
cases are commenced by a petition, most notably in special civil actions. The filing of a complaint has given rise to the
action that when the case is filed, the court acquires jurisdiction over the action. The court will then have to gain
jurisdiction over the person of the defendant. Service of summons will gain jurisdiction over the defendant. A recent
decision of the SC held that if the person filing the case is not authorized to file the case, then the court does not acquire
jurisdiction over the person of the plaintiff, and will not acquire even the jurisdiction to decide the case. The court can
examine whether or not the person who filed the case is authorized. If not so authorized, the court will not acquire
jurisdiction over the person of the accused and it will not acquire the authority to decide the case. The court will be
absolutely without jurisdiction to try and decide the case.
Amendment of the Complaint
In Complaints properly filed by the plaintiff, the plaintiff can amend the complaint as a matter of right under Rule 10,
provided an answer has not yet been filed. (Amendment as a matter of right). If amendment is to implead a new defendant,
the court will accept such amended complaint as it is a matter of right. As to the new defendant, the period to file an
answer will relate to the filing of the original complaint (Relating Back Doctrine).
But, if a new cause of action is introduced along with the new defendant, it is not an amendment, as a new cause of action
is being included.
The classification of actions
Civil Actions
Criminal Actions
Special Civil Actions
Special proceedings
In the definition of a civil actions it is very clear that we do not necessarily follow the definition of a cause of action as
defined in Rule 2. A cause of action is a violation of a right belonging to the plaintiff by a defendant. For a cause of action to
accrue, the plaintiff must allege he has a right, and then allege that the defendant had violated that right.
Elements:
Plaintiff must allege he has a right.
Plaintiff must allege the defendant has violated for that right.
The implication of given by the definition of a cause of action is that the right holder must wait for a violation of his right
before he can have a cause of action against such person who violated his right and have a reason to go to court. That
cause of action should always be related to the definition of a civil action found in Section 3(a) Rule 1.
A civil action is one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong.
Rule 2 SEC. 2. Cause of action, defined.A cause of action is the act or omission by which a party
violates a right of another.
Civil action does not require prior violation of a right before right holder can proceed to court. A plaintiff
need not have his right actually violated before a case can be filed. Even a threat to violate a right gives rise
to a cause of action.
The Rules of Procedure becomes more complicated if there are several rights that are violated by one and
the same wrongful act. If there is just one wrongful act and there are several rights violated, how will the
causes of action accrue?

The standard given by the SC: In order to determine whether several causes of actions will arise, if there is one
wrongful act and there are several rights that are violated, is to determine whether these rights belong to the same
person or to different persons.
Common Standard: Determine whether these rights belong to the same person or to different persons.
Several rights of one person violated by one and the same act = 1 cause of action = 1 complaint.
Several rights of several persons violated by one and the same act = several causes of action = separate complaints.
If a person drives his car negligently, and causes damage or wrecks 3 cars, how many causes of action accrue
against him using the standard given by the court?
Using the standard, determine whether the three cars belong to one person only or the cars belong to three different
persons. If the 3 cars belong to only one person, only one cause of action will accrue. The owner of the cars can only file
one case against the negligent driver. Otherwise, that will be splitting of causes of action. The owner had only one right
that was violated by the negligent driver. But if these 3 cars belong to 3 different owners, there are 3 separate causes of
action. Because there are 3 causes of action that arise, they can file separate complaints, and they dont have to be joined.
Conceivably, one owner can file his case in the RTC if he claims the damages suffered by him amounted to more than 500k.
Another owner can file his case in the MTC if he claims that his car incurred damages amounting to 200k. The filing of these
complaints by 3 different owners will depend on the amount of damages each will respectively claim in their respective
complaints. The fact that there are 3 different causes of action does not mean that they should go to the same court in
order to recover the damages suffered by them.
In the first example where the 3 damaged cars were owned by one owner, there is only one cause of action. The owner of
the 3 cars can only file one complaint for recovery of damages. Can he properly and rightfully go to court right away?
No. If we rely solely on substantive law alone, it would seemingly be yes. But if we apply other procedural principles, the
owner may be precluded from filing a complaint right away. The owner has to first satisfy certain conditions precedent
before cause of action could accrue. If these conditions precedent are not satisfied, the filing of the complaint shall be
premature and shall cause the dismissal of his complaint.
Conditions precedent given under procedural rules and substantive law are as follows:
1. prior barangay conciliation
2. arbitration clause
3. certification on non-forum shopping
4. exhaustion of administrative remedies
5. earnest efforts towards a compromise
Even if a right has been violated and a cause of action indeed accrued, if the action is covered under the circular on prior
barangay conciliation, the trial court can dismiss or not entertain the case and order the parties to undergo barangay
conciliation first.
Arbitration clause invariably provides that in case of breach of contract, the parties must first undergo arbitration
before a complaint can be filed by the innocent party.
Rule 7 Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on Non-Forum Shopping. The effect of a complaint/initiatory
pleading without Certification on Non-Forum Shopping is that the court acquires jurisdiction over the case, but the court
can order the dismissal of the case for non-observance of Certification on Non-Forum Shopping as a condition precedent.
Effects of complaint filed without certification of non-forum shopping:
1. court obtains jurisdiction of the case
2. court can dismiss the case for noncompliance of condition precedent
Exhaustion of administrative procedures is another condition precedent to the accrual of a cause of action.
In the NCC, in disputes between members of the same family, it must be shown that earnest efforts to reconcile or
compromise have been attempted but was unsuccessful.
Thus, the definition of a cause of action under the Rules is now qualified by certain conditions precedent before the injured
party can go to court. He must see to it that these conditions precedent, if applicable, must first be observed. The risk of
not doing so is that the court, although competent and may have jurisdiction over the case, may refuse to file the case and
issue an order directing the plaintiff to undergo or comply with these conditions precedent.
If the conditions precedent have been met, the general rule that we follow is for every cause of action, the plaintiff/right
holder can file one complaint.
Splitting a cause of action abhorred by the court.
Ex. Creditor filed separate actions for recovery of the principal and the interest earned by the principal. Even if there are 2
different courts where these complaints are filed, there is still splitting cause of actions.

Rule 2 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.
Rule 7 SEC. 5. Certification against forum shopping. The plaintiff or 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
commenced 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 present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed or is pending, he shall
report that fact within five (5) days therefrom to 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 hearing. The submission,
of a false certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without 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.
Sanctions for splitting causes of action:
1. filing of one could be used to dismiss the other due to litis pendencia
2. if one of the case has been decided, the other case can be dismissed due to res judicata
3. if there are 2 concurrent cases, the cases can be dismissed on ground of forum shopping.
It is now settled that if the party is guilty of splitting his cause of action, he is also guilty of forum shopping.
There is no need to elaborate as to whether there is forum shopping as long as it can be shown that there is
splitting causes of action.
Why does the Rules prohibit splitting?
It is because, the effect of splitting a cause of action could be harmful to our courts. If splitting is allowed, and one case
each will be filed for example in the RTC and MTC, there is the possibility that one court will decide differently from the
other and would result in the courts looking funny, even if the same facts, the same parties and the same pieces of
evidence were presented therein. The rule on splitting is designed more for protecting the integrity of our courts. The
likelihood that different courts will render conflicting decisions involving the same issue, the same parties and the same
pieces of evidence and thus destroy the credibility of the judicial system is sought to be prevented.
Consequences of splitting:
Suppose the plaintiff filed 2 complaints arising from the same cause of action, but the defendant ignores this.
Defendant did not act on the fact. Can the court motu propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable offenses under Rule 9. Even if the defendant did not waive
these, the court motu propio can order dismissal of these cases once these becomes clear during trial. But if the ground for
dismissal is litis pendencia, only one of the cases will be dismissed. If the ground for dismissal is res judicata, all
cases filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all cases, only one can be dismissed.
Rule 9SECTION 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 record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for the same cause, or
that the action is barred by a prior judgment or by statute of limitations, the court shall
dismiss the claim.
(Note: If you are counsel for the defendant, if cases are filed in 2 different courts [RTC and MTC], move for the dismissal of
the case in the RTC, as the amount involved in the MTC is smaller. Hence, if the amount involved in total should have been
2.2M, and the amount involved in the MTC is only 200k, only 200k will be extent of liability that your client will have in case
of judgment against him.)
Can we have the defendant have the remedy of dismissal of both cases filed in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty of forum shopping, the court shall order the dismissal of all
cases. But the qualification is that the dismissal is without prejudice, not an adjudication on the merits. Exception to the
dismissal being without prejudice is that if the forum shopping was DELIBERATE, then dismissal is with prejudice.
SUMMARY:
If the wish of the defendant is the dismissal of all cases, move for dismissal under Rule 7 on the ground of
forum shopping. Anyway, if the party is guilty of splitting of a cause of action, he violates the rule on forum
shopping.

But if one of the cases has been decided, the ground of dismissal should be res judicata, as long as the
decision in that previous case has become FINAL AND EXECUTORY.
Litis pendencia and res judicata are NON-WAIVABLE defenses. Courts can motu propio dismiss the case on
these grounds under Rule 9.

On Cases of Collection of Payments Payable on Installments

Larena vs. Villanueva old case but still applicable
Each installment = different maturity dates.
The rule of thumb is that for each installment that becomes due and unpaid, one cause of action arises for
that particular installment.
If the installment becomes due and unpaid, the creditor has one cause of action against the debtor for
recovery of money. But his cause of action against the debtor is only for the recovery of the installment that
was overdue.
Can the creditor insist on recovery of the entire amount instead of installments?
Generally, no. Each installment must be due so that right of recovery can be had.
Exception: The contract has an acceleration clause. It is a clause in contracts payable in installments where
parties stipulate that in case of default in the payment of a certain number of installments (or even just one), the
entire obligation becomes due.
So if there was an acceleration clause in the contract wherein the whole obligation becomes due after default of the first
installment, the creditor will have one cause of action only to recover the entire amount. Suppose the creditor indeed filed
one case only, and later a judgment was decided in his favor and the has become final, and later the second installment
has become due, he cannot file another case for the recovery of the second installment by virtue of the acceleration
clause. Only one cause of action shall arise.
But without an acceleration clause, the rule of thumb is each installment that is unpaid shall give rise to a different cause of
action when they become due and unpaid. There will be as many cases as there are installments filed by the creditor
against the same debtor, but each case corresponding to a different installment.
The qualification given in Larena is that if two installments are already due, then they should be the subject of one
complaint. If the other installments are not yet due, they cannot yet be subject to a complaint.
RULE ON ANTICIPATORY BREACH
Blossom vs. Manila Gas (Rule on Anticipatory Breach)
Even if the obligations are not yet due according to the contract, but the debtor has expressed formally his
desire not to pay, then that is an anticipatory breach of contract from which creditor can file a case against
the debtor to collect the entire obligation. This anticipatory breach should be formally pleaded in the
complaint.
SWAGMAN RULE
If such anticipatory breach was not pleaded in the complaint filed, and defendant failed to file an answer, the
court will set the case for pre-trial. By the time the pre-trial was conducted, the first installment had become
due. The trial was scheduled, but by that time, the whole obligation became due and unpaid. Can the court
properly decide the case in favor of the plaintiff?
No.
Swagman Hotel vs. CA
If a plaintiff files a complaint in court although he has no cause of action at all, and the claim of the plaintiff
matures at the time the case is tried, the court still does not have any authority to decide the case. This is
because at the time of the filing of the complaint, the plaintiff did not have a cause of action.
Can we not apply Rule 10 (Amendment to conform to evidence)?
SC held that we dont apply amendment to conform to evidence, if in the first place the plaintiff does not have a
cause of action at the time of the filing of the complaint. It is essential under the Swagman Rule that a complaint should
be filed after the cause of action has accrued. If there is no cause of action that has accrued and a complaint
is filed, the court will have no authority to decide the case, even if that obligation matures and becomes
defaulted during the trial of the case. We apply Rule 10 only if there is a cause of action at the time of the filing of the
complaint.
Swagman Hotel vs. CA
Facts: Sometime in 1996 and 1997, Swagman through Atty. Infante and Hegerty, its president and vicepresident, respectively, obtained from Christian loans evidenced by three promissory notes dated 7
August 1996, 14 March 1997, and 14 July 1997. Each of the promissory notes is in the amount of
US$50,000 payable after three years from its date with an interest of 15% per annum payable every
three months. In a letter dated 16 December 1998, Christian informed the petitioner corporation that he
was terminating the loans and demanded from the latter payment of said loans.

On 2 February 1999, Christian filed with the RTC a complaint for a sum of money and damages against
the petitioner corporation, Hegerty, and Atty. Infante.
The petitioner corporation, together with its president and vice-president, filed an Answer raising as
defenses lack of cause of action. According to them, Christian had no cause of action because the three
promissory notes were not yet due and demandable.
The trial court ruled that under Section 5 of Rule 10 of the 1997 Rules of Civil Procedure, a complaint
which states no cause of action may be cured by evidence presented without objection. Thus, even if the
plaintiff had no cause of action at the time he filed the instant complaint, as defendants obligation are
not yet due and demandable then, he may nevertheless recover on the first two promissory notes in view
of the introduction of evidence showing that the obligations covered by the two promissory notes are now
due and demandable. When the instant case was filed on February 2, 1999, none of the promissory notes
was due and demandable, but , the first and the second promissory notes have already matured during
the course of the proceeding. Hence, payment is already due.
This finding was affirmed in toto by the CA.
Issue: Whether or not a complaint that lacks a cause of action at the time it was filed be cured by the
accrual of a cause of action during the pendency of the case.
Held: No. Cause of action, as defined in Section 2, Rule 2 of the 1997 Rules of Civil Procedure, is the act or
omission by which a party violates the right of another. Its essential elements are as follows:
1. A right in favor of the plaintiff by whatever means and under whatever law it arises
or is created;
2. An obligation on the part of the named defendant to respect or not to violate such
right; and
3. Act or omission on the part of such defendant in violation of the right of the plaintiff
or constituting a breach of the obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages or other appropriate relief.
It is, thus, only upon the occurrence of the last element that a cause of action arises, giving the plaintiff
the right to maintain an action in court for recovery of damages or other appropriate relief.
Such interpretation by the trial court and CA of Section 5, Rule 10 of the 1997 Rules of Civil Procedure is
erroneous. The curing effect under Section 5 is applicable only if a cause of action in fact exists at the
time the complaint is filed, but the complaint is defective for failure to allege the essential facts.
Amendments of pleadings are allowed under Rule 10 of the 1997 Rules of Civil Procedure in order that the
actual merits of a case may be determined in the most expeditious and inexpensive manner without
regard to technicalities, and that all other matters included in the case may be determined in a single
proceeding, thereby avoiding multiplicity of suits.
SWAGMAN RULE: At the time of the filing of the complaint, the plaintiff must have a cause of action. He must
be able to show that his right was violated by the time the complaint was filed. Otherwise, he cannot make
use of amendment to conform to evidence.

SPLITTING VS JOINDER OF CAUSES OF ACTIONS

Splitting is prohibited, joinder is encouraged by the Rules.
The Rules encourages a plaintiff to incorporate as many causes of action he may have against the same defendant,
although his causes of action are totally unrelated to one another. This is allowed so long as the parties remain the same.
A plaintiff can file a complaint against a defendant for accion reinvindicatoria, for recovery of money arising from the loan,
recovery of damages arising from a quasi-delict committed by the defendant, although arising out of different transactions.
There is nothing wrong if the plaintiff sets up three different causes of action in a complaint that arose of different
transactions.
The limitations to joinder of causes of action:
1. Jurisdiction
2. Venue
3. Joinder of parties
According to Rule 2, there could be joinder causes of actions which is valid as long as the plaintiff

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;
(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.
If the plaintiff files a complaint against the defendant for accion reinvindicatoria, and the assessed value of the property is
1k only, and the second cause of action is the recovery of money, obviously the actions are misjoined. This is because
accion reinvindicatoria, the property being only 1k, is cognizable only by the MTC.
SC decided a case where one of the parties contended joinder when there was actually misjoinder of causes
of action. The complaint filed by the plaintiff against the defendant, the first cause of action was for
partition, and second cause of action was for rescission of a donation. Both causes of action were cognizable
by the RTC.
If we rely solely on Sec. 5 Rule 2, is there misjoinder of actions? Why?
Yes. This is because a complaint for Partition is a special civil action while rescission is an ordinary civil action. They are
governed by different procedures, and thus there is misjoinder of causes of action under Rule 2 Sec. 5(b).
On the same facts above, the defendant did not notice the misjoinder and did nothing, whereas the court did
nothing also. The judge most likely waited for the defendant to move to split the misjoinder causes. But since
nothing was done by defendant, the judge proceeded to try the two misjoined cases.
Under the rules, can a court, motu propio, order the severance of one of the misjoined causes of action?
Yes. The court can do so. Under the Rules, there is no need for a motion from the defendant if the court finds out that
causes of action are misjoined . It can motu propio order the severance of cases. This is done for the benefit of the court,
because if the court will wait for the defendant to make a motion, to raise the misjoinder of causes, the court will find
himself confused with the procedure he will follow. This is because partition will involve a different procedure from ordinary
civil actions. In fact, under our Rules now, partition is a multi-stage proceedings. Rescission is an ordinary civil actions.
The court went ahead and tried the case, until a decision was finally issued by the court. Only then did the
defendant raised, on appeal to the SC, the misjoinder of causes of action.
If nobody objected, the court may proceed in the disposition of the case. If the court decided on the case, the decision will
still be valid. SC made a qualification that these misjoined causes should be within the jurisdiction of the trial court under
BP 129. In other words, this rule on misjoined causes could be a ground for severance of these causes. But it if it is not
raised timely, and the court decided on the case, the courts decision is valid as long as the trial court has jurisdiction over
the misjoined causes.
Does the RTC have jurisdiction over a complaint for Partition? Does the RTC have jurisdiction over rescission
of a donation?
Note that a case for partition is one incapable of pecuniary estimation. So even if there are misjoined causes in one
complaint, but this misjoinder is not raised before the trial court, the parties are deemed to have waived this issue of
misjoinder of causes of action, the judgment rendered by the court is valid and the same can be executed if it is duly
entered.
If the court does not motu propio order the severance, the defendant cannot blame the court for it. It is the burden of the
defendant to raise this as an issue before the trial court.
As long as one of the misjoined causes falls within the jurisdiction of the trial court, there is nothing wrong if the trial court
will eventually decide the case although there is misjoined causes of action.
Can a complaint be filed where these two causes of action are set up, first, petition for certiorari, and then,
as a second cause, petition for habeas corpus?
Yes, the petition is allowed, by way of exception, according to SC.
A complaint was filed in the MTC. The first cause of action was for accion reinvindicatoria, the assessed value
of the land was 1k. The other cause of action unlawful detainer of a condominium unit, with value of back
rentals being 2M. Can an MTC have jurisdiction over the action?
Yes. The value of the land in the accion reinvindicatoria where the assessed value was only 1K. The recovery of possession
by a MTC will be by a summary proceeding, regardless of the back rentals sought to be recovered..
Are the causes properly joined?
No. There is still misjoinder, although both causes are cognizable by an MTC. This is because accion reinvindicatoria,
although cognizable by the MTC, shall be governed by ordinary proceedings while unlawful detainer will be governed by

summary procedure. We cannot join causes of action which are governed by different Rules of Procedure, although they
may fall within the jurisdiction of that same court.
New case
Baylon Case. Even if there is misjoinder, if it is not raised as an issue, and the court has decided upon the case,
the decision rendered thereafter is still valid so long as the court has jurisdiction over all causes of action
that are misjoined in the same complaint.
Limitations to the prerogative
Unlike joinder of parties, there is a rule against misjoinder of causes of action, in the same way there is a rule on misjoinder
of parties. There is no rule on non-joinder of causes of action, while there is non-joinder and misjoinder of parties. The
reason why there is no rule on non-joinder of causes is because it is permissive, it is always at the option of the plaintiff.
The plaintiff can join as many causes of action as he may have. The court cannot force him to do so. But there is a rule
against MISJOINDER of parties.
Misjoinder of causes occurs when the joinder of two or more causes violates the rules. Ex. Joinder of special and ordinary
causes of action in one complaint, it is prohibited for being in violation of the rule that actions covered by different rules of
procedure cannot be joined, although both may be cognizable by the same court.
But the latest jurisprudence of the court is to the effect that even if causes are misjoined, if that issue is not
raised on appeal, the CA and SC will ignore the violation of the rule on misjoinder. Judgment will not be
disturbed, so long as the court deciding has jurisdiction on all causes that have been misjoined.
Limitations:
1. Sec. 6, Rule 3, Permissive Joinder of Parties
- It envisions a situation where there are 2 or more plaintiffs, 2 or more defendants, or both, where there is a series of
transactions, with common questions of fact concerning the same parties.
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 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.

The owner of a land discovered that his property has been occupied forcibly by 11 informal settlers and they
retained physical possession thereof. The informal settlers had constructed houses therein. The owner
wanted to recover the possession thereof. Should the owner file 11 cases of forcible entry or just one against
the 11, or one complaint wherein there is a joinder of parties?
SC said that the owner has the option of choosing any one of these remedies. Plaintiff can file 11 separate complaints
impleading only one defendant in each complaint. If plaintiff chooses to file just one action, in that complaint, he must
allege 11 causes of action (First Cause of Action, etc.). The last recourse will involve joinder of parties.
Why?
Sec. 6 Rule 3 is permissive in character. (use of the word may)
2. Compulsory joinder of indispensible parties party must be joined so that final adjudication of the issue can be
had.
- even if the court tries a case without impleading an indispensible party, such non-joinder will render the proceedings
void. The decision is void and will never be entered, and thus cannot be made final and executory.
Indispensible partyparties in interest without whom no final determination can be had.
Rule 3, 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 s plaintiffs or defendants.
If there are 2 parties to the contract of sale, one vendor and one vendee. If in case there is a violation of the contract of
sale, the vendor and vendee are of course indispensible parties.
Necessary partythe joinder of such party is not compulsory.
Rule 3 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.
What is the sanction if the complaint is filed without impleading indispensible party?
It is not per se a ground for dismissal as very clearly stated in Section 11, Rule 3; but if the defendant uses another ground
used, specifically failure to state a cause of action, then the complaint will be dismissed.

Rule 3 SEC. 11. Misjoinder and non-joinder of parties.Neither misjoinder nor non-joinder of
parties is 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.
Any claim against a misjoined party may be severed and proceeded with separately.
SC held differently in several cases:
It held that failure to state a cause of action is evident when an indispensable party is not impleaded. A cause
of action envisions the existence of a right violated and a wrongdoer who did such violation. The proceedings taken by the
court are considered void in terms of those who were not impleaded, being indispensable parties. Even if the court
decided the case, the judgment therein will be unenforceable since such decision will be subject to question
by those parties not impleaded.
There were also decisions stating otherwise. SC stated than non-joinder/misjoinder is not a ground for dismissal. If a
motion to dismiss is filed, SC stated that the court should order amendment of the complaint instead of
dismissing it. In Rule 16 on alternatives of a court on ruling a motion to dismiss, SC says a trial court has 3
options: deny, dismiss or to order amendment of the complaint. Thus, trial court can order denial of a motion
to dismiss by ordering amendment.
4 alternatives to resolve misjoinder/non-joinder of indispensable parties:
1. Grant motion
2. Deny motion
3. Order amendment to the pleading
4. Refer the matter to arbitration or prior barangay conciliation
Hence, if a defendant moves for the dismissal of the case of non-joinder of indispensible parties, the court
can order amendment of that complaint to implead the indispensible party. Plaintiff also has a choice; he can
either ignore or comply with the order. If he complied, the defect is cured.
But if plaintiff disobeys the order directing him to implead an indispensible party, can the court do something
about it?
SC held that the case can be dismissed under Rule 17. If the dismissal was ordered by the court due to disobedience of a
lawful order, it shall be a dismissal with prejudice, an adjudication upon the merits.
Adopt the 2nd set. Order amendment. If amendment order is not complied with, court will order dismissal under Rule 17,
unless the court orders otherwise.
What is the difference of a dismissal under Rule 16 and Rule 17?
If a complaint is dismissed under Rule 16 due to failure to state a cause of action from failure to implead, dismissal is
without prejudice.
If dismissal is by reason of Rule 17, for failure to obey lawful orders of the court, it is a dismissal with prejudice unless the
court orders otherwise.
NECESSARY AND INDISPENSABLE PARTIES
How do we distinguish whether a party is necessary or indispensable?
The rule to guide us in this fact is the NCC on liability of debtors.
In the case of debtor/creditor relations where there are 2 debtors to the same debt:
Plaintiff should evaluate liability, whether debtors liabilities are solidary or joint. In the NCC, in absence of any other
stipulations/factors, when there are two debtors of the same indebtedness, the assumption will be that they are joint
creditors. If there are stipulations referring to the debt as solidary, then they are solidary debtors. The provisions of the NCC
will be the guide in this situation.
If we apply the provisions of the NCC, and the creditor filed a case to recover the entire debt, and debtor A
and B are joint debtors, do we consider both debtors to be indispensible parties?
Yes. If the purpose of the creditor is to recover the entire obligation, then both debtors should be impleaded in the
complaint.
Can the creditor file a case against only debtor A?
Yes, applying the provisions of the NCC, the creditor can go after A, but recovery can be had only to the extent of the
amount owed by A. In this example, debtor A is an indispensible party.
How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not indispensible. The court may require B be impleaded to complete the
determination the subject matter.
There is another presumption in the NCC that if there is no indication as to the extent of the debt of two joint debtors the
presumption will be that both shall share equal obligations to the creditor. Hence, if the creditor loaned Debtors A and B
1M, there being no other stipulation, it is presumed that Debtors A and B are joint debtors with individual liabilities of 500K
each.

Indispensable Parties
Parties in interest without whom no final determination can
be
had of an action shall be joined either as plaintiffs or
defendants. (Sec.7, Rule 3)
Must be joined under any and all conditions because the
court cannot proceed without him (Riano, Civil Procedure:
A Restatement for the Bar, p. 224, 2009 ed.)
No valid judgment if they are not joined
Note: In the absence of an indispensable party renders all
subsequent actions of the court null and void for want of
authority to act, not only as to the absent parties but even
as to those present (Riano, Civil Procedure: A Restatement
for the Bar, p. 221, 2009 ed.)

Necessary Parties
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. (Sec.8, Rule 3)
Note: Should be joined whenever possible, the action can
proceed even in their absence because his interest is
separable from that of indispensable party (Ibid p.224)
The case may be determined in court but the judgment
therein will not resolve the entire controversy if a
necessary party is not joined

Note: 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-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the
action. The court should order the joinder of such party and non-compliance with the said order would be a ground for
the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239, 2001 ed.)
Note: 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. Any claim against a misjoined party may be severed and proceeded with
separately. (Sec. 11, Rule 3)
The presence of a necessary party is not determinant to the resolution of the action, but can be impleaded if only to satisfy
completely the issue.
The duty of the plaintiff is only to tell the court that he has left out a necessary party, he is not compelled to include such
party. The court will have to determine if it is essential for the court to order requiring that necessary party to be
impleaded.
If plaintiff ignored the court order to implead the necessary party, is Rule 17 applicable?
No, Rule 3 should apply, which provides for the sanction if plaintiff refuses to obey an order to implead necessary party. The
case will continue. But, the plaintiff would be deemed to have waived any right of action against necessary party. If later
on, the plaintiff decides to file a complaint against such necessary party, the complaint will not prosper, as the necessary
party can claim that the right to file a claim against him has been paid, waived, abandoned or otherwise extinguished
under Rule 16.
THE RULE ON ASSIGNMENT/TRANSFER OF INTEREST (RULE 3, LAST SECTION)
Ex.
There is a creditor who lent 1M to the debtor. The debtor defaults in payment. But before the creditor filed a complaint, the
creditor felt the need for money. He assigned his claim to another for a certain value. Such person now stands in the shoes
of the creditor, and may file a claim against the debtor. The creditor sold his rights to X for 700K.
Can the assignor/original creditor, file a claim for 1M against creditor?
No, he is no longer a real party in interest, as he has assigned his rights to another.
What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor, so the case will prosper.
How much can assignee recover?
He is entitled to recover 1M. The assignee steps into the shoes of the creditor who sold his right to the assignor for 1M.
What if the original creditor has not assigned his credit for 1M. He files a case against debtor. While the case
was pending in the RTC, the plaintiff/creditor assigned his claim. The assignment was in pendente lite, for
700K. Will the assignee be considered as indispensable party?
No. Under Rule 3, assignee pendente lite is not considered an indispensable party and the court may ignore such party.
The creditor assigned his rights to assignee. The assignor pendente lite/creditor stipulated that the case
should be dismissed in consideration for the payment of the 700k. Is this allowed?
Yes. This is allowed under Art. 1634 NCC.
Husband and wife should sue or be sued jointly.

SC Held that the law contemplated in the exemption is the Family Code or NCC as the case may be. This is pertinent on the
rule of partnership and co-ownership in case of husband and wife. It is impertinent to compel a husband to implead the
wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without impleading the co-owners. The same would be applicable to
husband and wife. The wife may file a case without impleading her husband.
There is a caveat: If the husband as a co-owner files a complaint against another, he should indicate in the complaint
that he is filing such case as co-owner. But if he claims sole ownership, he should implead the wife. The law authorizes
either spouse alone to file a complaint. The spouse left behind is not considered a necessary party as a complete
determination of the case could be had even with just one spouse as a party.
Exceptions: (See Art. 113 NCC)
Husband and wife are judicially declared legally separated from each other, the other party must be impleaded.
If the husband and wife are separated in fact for at least one year.
(See also Arts. 25 to 35 NCC)
CLASS SUIT
There is a common interest among persons so numerous that it would be impracticable to bring them all to court. It is not
required that all be presented in court, but only enough to represent the rest of those who are party to the same suit.
Ex. Oposa vs. Factoran is now enshrined in the Writ of Kalikasan via the Citizens Suit on behalf of persons yet unborn. This
is effectively a class suit.
Do we consider the class as indispensable or necessary parties?
SC held that all in the class involved in the litigation are considered indispensable parties.
Should they all be identified?
SC held that there is no need. Only a representative number can be impleaded as they represent all of the class.
Determination made on such representative class is tantamount to determination for all of the members of the class.
Why did SC hold that all such members of the class are deemed indispensable?
SC stated that the last sentence of Sec. 12 Rule 3 states that Any party in interest shall have the right to intervene to
protect his individual interest. A member of a class in a class suit has a right to intervene.
Note:
Intervention a matter that is subject to the discretion (allow or disallow) of the trial court. Exception, court cannot
deny intervention of a member of the class in a class suit.
Deceased Litigant
SEC. 16. Death of 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.
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 (30) 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.
A contract of agency is present when a lawyer is engaged by his client, an agency which exists until the client dies. The
lawyer has to inform the court about the death of his client. The court may then cause substitution of the representatives of
the estate of the deceased.
Rules on death of the plaintiff in marriage-related cases :
Dismissal death occurred before entry of judgment
Substitution of parties death occurred after entry of judgment
Plaintiff dies the court would require the lawyer to submit the names of the heirs in order to act as substitute plaintiff.
Refusal of all heirs to act as substitute parties, court can require the defendant to seek the appointment of an administrator
or executor of the estate (in the settlement court for probate of a will or intestacy).
Settlement court either RTC or MTC depending on the value of the estate.

If the executor or administrator has been chosen, he will be tasked to represent the estate until final judgment.
If there is an appeal on the decision of the trial court, the executor/administrator shall represent the estate. Their
representative capacity ends upon final entry of judgment.
Death of a debtor will not extinguish an obligation, there being transfer of the interest from debtor to his estate. There will
have to be proper substitution of parties.
If there is a decision against debtor that was final and executory, can the substituted party ask for motion for
writ of execution for satisfaction of the deceaseds claim?
No. It cannot be subject to execution under Rule 39. Creditor must file a claim, attaching the said judgment as evidence of
a valid claim.
Rule 4 VENUE OF ACTIONS
One court that can disregard rules on venue SC
All other courts cannot disregard the rules on venue.
Trial courts can incorporate in their decision an advisory to the defeated party to appeal the matter to the SC.
Venue can be subject to stipulation of parties.
Elements:
1. Stipulation has the feature of exclusivity
2. Written, and
3. It must have been entered into before the commencement of the action
Caveat: If the stipulation will cause undue inconvenience to parties, then such stipulation can be dispensed with by parties.
In a real action, the venue, in absence of any stipulation designating a specific venue, is the place where the property or a
part thereof is located.
Mixed action action is both real and personal the venue in absence of stipulation is the same as that of the rule in
personal actions. (Whether Action in-rem real; Quasi in rem or In personam personal)
Analyze the actions whether they are real or personal. For purposes of venue, we follow its classification as a real action.
Accion reinvindicatoria and publiciana recovery of title or ownership a real action that at the same time an in personam
action.
Settlement of estate involving personal properties of the deceased personal action
Sweet Lines case(on venue)
The place where the principal office was located would cause undue inconvenience for the complainants, hence the
agreement stipulating that cases should be filed in Cebu is void. Rule 4 is designed for the convenience of complaining
parties, not for the benefit of defendants.
The rule on venue does not apply to CA, CTA and SC. It is only applicable to trial courts and other lower courts.
Procedure before Barangay Courts
Prior barangay conciliation a condition precedent to accrual of cause of action.
2 requisites:
1. the parties must be natural persons
2. they reside in the same city or municipality
As long as these 2 requisites are present, prior barangay conciliation is a MUST regardless of the nature of the action;
if claim is for collection of money, regardless of the amount involved.
If case is filed directly in court in violation of the LGC, will the court acquire jurisdiction?
Yes, under BP 129.
What are the remedies of defendant and the court if prior barangay conciliation was not done?
~Defendant can file a motion for dismissal for lack of cause of action.
~Court can compel plaintiff to submit to barangay conciliation while being held in suspension.
~Court can hold case in abeyance until conciliation was had or had failed. (Court will dismiss the case, and await result of
the barangay conciliation.)
Note: Barangay Court is not part of the judiciary, but part of the executive. Inherently, barangay courts are not allowed to
adjudicate, only to mediate, to conciliate, and convince parties to arrive into a compromise agreement and settle amicably.
They act as an arbitration court; that is, if parties have mutually agreed in writing to constitute the barangay court as an
arbitration court for their dispute.

The barangay courts follow procedurally the same rules as that of court cases.
The pleadings could be verbal, although the barangay court usually asks for pleadings to be written. They also require
payment of minimal docket fees, regardless of the amount of claim.
If the complainant fails to appear repeatedly during the conferences called by the Barangay Court, the Barangay Court can
order the dismissal of the complaint, and that dismissal is with prejudice. The complainant loses his right to recover against
the respondent.
Rule of venue is different from Rule 4 RoC. The venue is the residence of the respondent. If the complainant and respondent
resides in different barangay, the complaint should be filed in the barangay where the respondent resides.
This applies to civil actions, as well as special civil actions in appropriate cases.
Ex. Complaint for interpleader
Complaint for forcible entry and unlawful detainer, although these are special civil actions
This does not apply to:
~Rule 65 cases, nor in petition for relief cases.
~Cases that involve public officers or LGUs.
~Certiorari, Prohibition, Mandamus usually involves exercise of public duties (especially of a judge)
~It does not apply to expropriation or quo warranto.
If they are unable to settle, the barangay court issues a certification that no compromise was entered into. This enables the
plaintiff to file a case in court. But if a compromise agreement was filed, that agreement will be considered a final and
executory judgment, subject to repudiation by any party within 10 days from execution of the agreement. Grounds are any
of the vices of consent. If there is repudiation, the barangay court will issue certification allowing plaintiff to file the case in
court.
If parties agreed in writing that a barangay court shall be the arbitration court, this can be repudiated within 5 days from
filing said agreement.
The Barangay Court, as an arbitration court, can make arbitral awards. A party can cause annulment of said award based
on vices of consent. No other ground need be presented (such as lack of jurisdiction, etc.)
There is no need for the barangay court to ask for confirmation of the compromise agreement. After the lapse of the 10-day
period, it becomes final and executory. It can become subject to execution by the barangay court. If the terms of the
agreement are not complied with, the barangay court can execute the judgment, provided such judgment should be
executed within six months from signing of compromise agreement.
Execution of the barangay court.
While it can make a levy on execution, it is limited to personal properties belonging to respondents. It cannot levy on real
properties owned by respondents. It can also sell these levied personal properties at public auction to satisfy the
compromise agreement. If there is no satisfaction of the claim, the remedy is for the judgment creditor to file a case of
collection in the MTC to satisfy the compromise agreement.
Montaez vs. Miguel enforcement of compromise agreement by barangay courts (2012)
The case substantially has the following facts:
The claim of the creditor was 500k. Both parties submitted the matter for conciliation in the barangay court. The claim of
500k was reduced substantially in the proceedings, 250k paid in installments. The debtor failed to comply. The agreement
was not repudiated. The creditor filed a complaint in the regular court for recovery of the 500k. CA held that the only
recourse of the creditor was to enforce the compromise agreement as provided in LGC and the implementing circulars, the
creditor having lost the right to claim the 500k.
SC HELD that the barangay court approved compromise agreement being final and executory, if the debtor fails to comply,
the failure to comply is considered as a repudiation of that compromise agreement. SC cited Art. 2041 of the NCC which
states that when a party fails to comply with the compromise agreement, the agreement is rescinded by operation of law,
and thus the creditor is entitled to recover the original claim in the courts of justice.
There is no need to file rescission of the compromise agreement in this instance. The effect is that the creditor who has
agreed to the compromise agreement will be reverted to his original position as a creditor claiming the amount in his
original claim before the compromise agreement.
Mere refusal or failure to comply with compromise agreement is tantamount to repudiation of the
compromise agreement.
Note: Judgment based upon a compromise is immediately executory. A party can sought execution thereof immediately.
Failure to comply can lead to rescission of that compromise agreement.
SUMMARY PROCEEDINGS
It refers to the summary procedure followed by lower courts in unlawful detainer, forcible entry and money claims up to
200k, exclusive of interest, etc.

Note:
Small claims proceedings involve claims up to 100k.
There are cases which follow summary procedure that is cognizable by RTC. However, these cases involve family-related
cases. They are not civil actions involving summary procedures under the rules.
Summary proceedings prohibit filing of certain pleadings and motions.
The only Pleadings allowed:
Complaint
Answer
Compulsory Counterclaim/crossclaim
Motion to dismiss under Rule 16 is prohibited, unless the ground is absence of jurisdiction over the subject
matter and absence of prior barangay conciliation (failure to follow condition precedent).Although prohibited, what is
prohibited is a motion to dismiss filed by the defendant.
Summary Dismissal is allowed given, by the court itself, no motion being given.
The court itself will examine the contents of the complaint. If the court finds the case should be dismissed under Rule 16, it
can do so motu propio, without a correlative motion to dismiss filed by the defendant.
Ordinarily, under ordinary procedures, a court cannot simply dismiss the case without a correlative motion to dismiss.
The defendant is given time to file a responsive pleading for a shorter period than in ordinary procedure. Period is nonextendible (10 days). If defendant ignores the period, but files a motion for extension of 5 days to file an answer, the court
can ignore it, considering it as if it was not filed. If such a motion was filed, and there was failure of the defendant to file an
answer within 10 days, plaintiff can move for judgment on the pleadings.
If the defendant is prohibited from filing a motion to dismiss, but the defendant, after evaluating the
complaint that the case should be dismissed based on any ground in Rule 16, can he still make use of these
grounds to cause dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of the grounds as an affirmative defense in his answer, and later
on raise these issues.
Motion to declare defendant in default a prohibited pleading in summary procedure.
If defendant failed to answer on time, the plaintiff can move for judgment on the pleadings.
In ordinary proceedings, a motion to declare defendant in default must be initiated by plaintiff before the court can declare
defendant in default. Unless such motion is made, the court can do nothing.
The reason why the rules on summary proceedings does not allow the court to declare defendant in default, it is because
the rules under Rule 9 cannot be allowed in summary proceedings. It will be tantamount to allowing a defendant in default
to ask for lifting the order of default, defeating the purpose of the rule on summary proceedings.
Motion for new trial, motion for reconsideration and petition for relief from judgment are prohibited in summary
proceedings. This does not mean the defendant has no remedy after judgment. The only remedy available for a defendant
is to appeal the judgment. Annulment of judgment under Rule 47 can also be had under these proceedings. But, before he
can avail of Rule 47, the rules are strict insofar as the requirements for annulment of judgment are concerned. Such must
be complied with before it can be availed.
Preliminary conference identical to pre-trial in ordinary proceedings. Submission of affidavits and position papers, no
presentation of evidence.
A trial is not absolutely prohibited in summary proceedings, as certain criminal cases are governed by summary
proceedings. A trial has to be conducted. The court cannot deprive defendant/accused from cross-examining the witnesses.
Why did not the SC adopt a common summary procedure for civil and criminal cases? Why disallow trial in
civil cases under summary proceedings?
This is because SC cannot violate the rights of an accused in a criminal case. The same right is not availing to a defendant
in a civil case under summary procedures.
Small Claims Proceedings
It contains prohibition against counsels appearing in court.
The scheme in Small Claims proceedings is that they are not required to prepare their own pleadings. In Metro Manila, the
MTC assigned to entertain these claims have ready forms for complaints or answer to be filed in court. Minimal docket fee
is paid.

Joinder of causes of action is allowed, so long as the aggregate should not go beyond 100k exclusive of interest, damages,
etc.
Prohibited pleadings and motions : similar to summary proceedings.
Judicial dispute resolution MTC encourage parties as much as possible to enter into a compromise agreement.
Small claims procedure has nothing to do with criminal cases, only civil collection cases.
In small claims procedure, the judgment is immediately final and executory, no appeal available. Motion for new
trial, motion for reconsideration and petition for relief from judgment are not available. The only remedy available to an
aggrieved party is under Rule 65, Certiorari. Thus, there is no appeal, plain, speedy or adequate remedy available.
Does it mean that the aggrieved party in small claims procedure is treated more kindly than in summary
procedure?
No. The availability of Rule 65 in Small Claims procedure is not really a benefit. A petition under Rule 65 does not stop
the respondent court from carrying out its decision.
Unlike in an appeal, usually, execution is not allowed, except in forcible entry and unlawful detainer. In case of unlawful
detainer, payment of supersideas bond and the payment of current rate of rentals can stop enforcement of the summary
proceedings judgment.
The only way Rule 65 can prevent immediate execution in small claims is that the court taking cognizance of
Rule 65 will issue a TRO or writ of preliminary injunction upon application of appellant. There is a need to
post an injunction bond to avail of the TRO or writ of preliminary injunction.
Back to pleadings.
PLEADINGS AND CONTENTS OF PLEADINGS
Rule 6 and Rule 10 (Take them as one set, as they refer to the same thing, pleadings and content of pleadings)
Pleadings should always be in writing.
The rules now allow a parties/litigants to make use of 9 pleadings, but numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)
Claim Pleadings:
1. Complaint
2. Counter-claim
3. Cross-claim
4. Third-party complaint
5. Amended pleading
6. Supplemental pleading
7. Petition
Responsive Pleading:
1. Answer
2. Reply
Defendant may make use of certain claim pleadings under appropriate circumstances. Ex. Answer with counterclaim and
cross-claim.
RULE 7 CERTIFICATION OF NON-FORUM SHOPPING
Classification of pleadings under Rule 7:
1. Initiatory Pleadings there should be a certification on non-forum shopping, the violation thereof could lead to adverse
consequences such as dismissal with or without prejudice; the court imposes docket fees, violation thereof will render the
case to be that which does not fall under the courts jurisdiction; payment of docket fees required.
2. Non-initiatory Pleadings needs no certification of non-forum shopping; no docket fees required.
The classification under Rule 7 is made for the purpose of determining whether such pleading will require the inclusion of a
certification of non-forum shopping.
General Rule: If an initiatory pleading is filed in court without the payment of the requisite docket fees, the
court does not acquire jurisdiction over the initiatory pleading. Payment of docket fees carries with it the
authority of the court to entertain the complaint.
With respect to a compulsory counterclaim, courts do not consider it an initiatory pleading, which will
necessitate the payment of docket fees.

In 2010, SC decided that if the defendant files an answer with permissive counterclaims, and fails to pay docket
fees, the court has neglected to collect docket fees thereto, and the court tries the case resulting in its
dismissal and granting the permissive counterclaim (the defendant won), the decision (even if already entered) over
the permissive counter-claim is void due to lack of jurisdiction, there being no showing that the court acquired
jurisdiction over the counter-claim. The defendant has the duty to remind the clerk of court that docket fees should be
collected against the defendant so as to enable the execution of a decision in favor of the defendant.
COMPLAINT
Ultimate facts In ordinary civil cases, ultimate facts should be alleged in the complaint. But plaintiff is not sanctioned
in case evidentiary facts are included therein, wherein the plaintiff also presents evidence he intends to
present in court.
In several circulars, in certain proceedings, a complaint need not state just ultimate facts. In a complaint filed
under summary proceedings, plaintiff is encouraged to include in his complaint evidentiary facts and to attach his evidence
in the document. In Kalikasan proceedings, the plaintiff is required to attach to his complaints all the evidence that are in
the possession of the plaintiff (documentary, testamentary or object). In Kalikasan cases, the defendant should include his
evidence in the answer, aside from specific denials.
Take Note: Even Rule 6 does not prohibit alleging evidentiary facts along with ultimate facts. Rule 6 does not
impose sanctions if evidentiary facts are included in the pleadings. But the inclusion in the complaint of
ultimate facts alone is sufficient.
The ultimate facts are those that constitute the cause of action, an allegation that the plaintiff has a right, an
allegation that the defendant has violated that right, or an allegation of compliance with conditions
precedent that gave rise to accrual of the cause of action.
Insofar as the answer is concerned, it is the pleading in response to a complaint. It may contain positive or negative
defenses or both along with evidentiary facts. The defendant, however, cannot move for the court to order the plaintiff to
present evidentiary facts in his complaint as the statement of the ultimate facts alone in the complaint are sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part of the answer. (Specific denial)
What is the standard to follow that a denial is specific?
It is found in Sec. 10 Rule 8 (Relate Rule 6 with this).
3 modes where a specific denial can be had:
1. Total denial of the allegations in the complaint with accompanying statements in which he will have to rely his defenses
on
2. Part denial and part admission
3. Just a statement by defendant that he has no knowledge or information about the truth of the allegation and
therefore defendant specifically denies the allegation
Theoretically, the defendant can make use of any mode of denial right away.
The court has in several cases discouraged the 3rd mode of specific denial, and imposed some sanctions if a defendant
insists in using the 3rd mode as the only mode contained in his answer. SC has given sanctions in several cases. SC held
that if the defendant had no knowledge or information on the matter, defendant should explain why. Failure to do so, such
denial will not be considered a specific denial. A general denial will be treated as a judicial admission to the
allegations contained in the complaint. Thus, a judgment on the pleadings can be had upon motion of the
plaintiff.
Another form of denial frowned upon by jurisprudence are the following: I specifically deny paragraph_ because I had not
dealt with the plaintiff or I specifically deny paragraph _ of the complaint. They are considered as negative pregnant.
They are specific denials that contain no ground relied upon in support of the denial, and thus are considered
as general denial. The remedy of the defendant is to amend the answer as a matter of right as provided in Rule 10.
Rule 10 Amendment as a matter of right
Done before a responsive pleading is filed or before expiration of the period to file such responsive pleadings.
Note: A general denial is allowed in Habeas Corpus cases, but expressly prohibited in Writ of Amparo and Habeas Data
cases.

Counter-claim
It is a claim made by a defendant against a plaintiff.
Permissive vs. Compulsory counterclaim.

Study Compulsory Counterclaim as discussed in the Rules.

Compulsory Counterclaim
One which arises out of or is necessarily connected with
the transaction or occurrence that is the subject matter of
the opposing partys claim (Sec.7, Rule 6)

Permissive Counterclaim
It does not arise out of nor is it necessarily connected with
the subject matter of the opposing partys claim

It does not require for its adjudication the presence of third

parties of whom the court cannot acquire jurisdiction

It may require for its adjudication the presence of third

parties over whom the court cannot acquire jurisdiction

Barred if not set up in the action (Sec. 2, Rule 9)

Not barred even if not set up in the action

Need not be answered; No default

Not an initiatory pleading.

Must be answered,: Otherwise, default

Initiatory pleading. (Riano, Civil Procedure: A Restatement
for the Bar, p. 336, 2009 ed.)
Must be accompanied by a certification against forum
shopping and whenever required by law, also a certificate
to file action by the Lupong Tagapamayapa (Santo Tomas
University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007
Bar Question).

Need not be accompanied by a certification against forum

shopping and certificate to file action by the Lupong
Tagapamayapa.

The court has jurisdiction to entertain both as to the

amount and nature (Sec. 7, Rule 6; Ibid p.331)

Must be within the jurisdiction of the court where the case

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

Compulsory Counterclaim filed in the RTC vs. that filed in the MTC
A compulsory counterclaim filed in RTC cannot be a compulsory counterclaim filed in the MTC.
Ex. Counterclaim filed in the RTC states that the case filed was unjust and defendant claimed legal expenses amounting to
200k. This is considered to be a compulsory counterclaim in the RTC even if such amount is below the threshold for claims
in the RTC. We cannot challenge the RTCs jurisdiction by the amounts claimed in the counterclaim.
If the counter claim filed in the MTC by defendant was claiming 500k in moral damages. Under the rules, this is no longer a
compulsory counterclaim, and treated as a permissive counterclaim. The MTC can order dismissal of the counterclaim, as
the counterclaim is outside the jurisdiction of the MTC.
If the amount to be recovered is beyond the jurisdictional amount of the MTC, the compulsory counterclaim is converted to
a permissive counterclaim. If the amount to be recovered is below the jurisdictional amount of the RTC, the counterclaim is
still treated as a compulsory counterclaim.
Reply
The filing of a reply is generally not necessary. It is in fact next to useless.
Note: If a party does not file such reply. All the new matters that were alleged in the answer are deemed controverted
(Sec. 10, Rule 6) (not deemed admitted).
The matters not answered in the reply are deemed controverted (not admitted). In a complaint, if the allegations therein
are not specifically denied or were not dealt with in the answer, they are deemed admitted. If the defendant does not
specifically deny or does not set up proper affirmative defenses in the answer, the defendant is sanctioned by law. This will
lead the court to conclude that the defendant has admitted all allegations in the complaint, and thus will lead to a
judgment on the pleadings.
But if the defendant filed an answer properly crafted, introducing a new matter. The new matter asserts a
positive defense of extinguishment, for example, which is a ground for a motion to dismiss. The plaintiff does
not file a reply. Is the plaintiff deemed to have admitted the new matter?
No. The new matter alleged in the answer is deemed controverted even without a reply. Plaintiff need not submit a reply as
the law itself that the new allegation or matter is deemed controverted to be subjected to trial in the court.
Under Rule 16, the defendant can now ask for a preliminary hearing to determine whether there was extinguishment or not.
But for purposes of a reply, there is no need for the plaintiff to controvert the new matters. The second sentence of the
definition of a reply is the most important. All matters alleged in the answer are deemed controverted, and a reply need not
be filed.
EXCEPTIONS:
1. Where the answer alleges the defense of usury in which case a reply under oath should be made. Otherwise, the
allegation of usurious interest shall be deemed admitted. (NO LONGER APPLICABLE)
2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec. 8 of Rule 8
must be made. Otherwise, the genuineness and due execution of the document shall be deemed admitted.
Under our present rules, allegations of usury MUST be contained in a complaint or similar pleadings. The law
is not specific, but given the liberal interpretation of the rules, it leads to the conclusion that as long as the
allegations of usury are contained in a complaint or similar pleading like counter-claim or cross-claim, there

is a need for specific denial. The responsive pleading would be an answer, not a reply. If the allegation of usury
is contained in a counterclaim/cross-claim, the responsive pleading is an answer to the counterclaim/cross-claim. If the
allegation of usury is contained in an answer, there is no need to specifically deny in the reply.
The only exception applicable is when the answer is founded on an actionable document. The law says that
when the defense is founded on an actionable document, the plaintiff, if he wants to make a denial of the
actionable document, must do so specifically and under oath. Otherwise, the genuineness and due execution
of that actionable document will be deemed admitted (a judicial admission).
What is an actionable document?
A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc. vs. Lyric Factor
Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a sum of money. (Riano, Civil Procedure: A
Restatement for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies only to an actionable document, i.e., one which is the basis of an action
or a defense. Hence, if a document does not have the character of an actionable document, it need not be pleaded strictly
in the manner prescribed by the rules (Ibid p.102)
How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the pleading and attaching said document thereto as an exhibit
2. Include the contents of the document verbatim in the pleading (Sec. 7, Rule 8).
Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not
warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L-10232, Feb. 28, 1958). However,
the contents of the document annexed are controlling.
For example, the defendant alleges payment in his answer supported by a receipt issued by the plaintiff, acknowledging full
liquidation of the indemnity. Under law, if the claim or demand is based on an actionable document, it is imperative upon
the impleader to allege on the pleading the actionable document.
Can the plaintiff simply file an affidavit in opposing the actionable document?
The only way that a plaintiff can make a specific denial under oath against the actionable document alleged in an answer is
by way of a reply. This is because, this is the only pleading that is available that responds to an answer. If the plaintiff
makes a reply setting up a specific denial, he should also see to it that the specific denial is under oath. If he did not
do so, the genuineness and due execution of the actionable document is deemed admitted.
Take note of the exceptions in the Rules as to non-availability of the judicial admission of the genuineness
and due execution of an actionable document if there is no specific denial under oath. There are 2
exceptions:
1. When the adverse party does not admit being a party to that document, or
2. Even if such party is a party to the document, there being an order issued by the court for the inspection
of the original document, the said party does not comply with that order.
The mode of impleading an actionable document was held by the SC to be mandatory. If the party impleading
such did not follow the modes provided in the Rules for impleading of an actionable document, the party will
not be allowed to present proof of his cause of action or defense as the case may be, as the attachment of
the actionable document or adding of the contents of that actionable document in the allegations of the
pleadings will adversely affect the other party.
Third/Fourth Party Complaint, Etc.
There can potentially be no end to the number of parties in the complaint as long as the allegations in the pleadings have
something to do with the claim of the plaintiff in his complaint. If you would notice among the pleadings, it is only the
third/fourth party complaint, etc. that would require leave of court. The third/fourth party complaint, etc. must allege that
the third/fourth party defendant is liable to the said third/fourth party plaintiff, by reason of contribution, subrogation or any
other relief in relation to the subject matter of the claim in the complaint. The third/fourth party complaint is always
connected to the subject matter of the complaint.
If a complaint for instance is for the recovery of an unpaid loan, a third party complaint cannot contain a claim for the
recovery of ownership of a piece of land. The subject of the third party complaint should always be related to the subject of
the complaint.
Why do we need leave of court in order to file a third party complaint?
This is because a third party complaint will forcibly bring into the action a stranger to the case. The third party defendant is
a stranger to the case. This is why the rules require that the court should be given discretion whether to allow or not to
allow the third party complaint to see if there is a need to bring a stranger to the case or even if there may be a need, the
claim is unrelated to the subject to the case. If the court denies the motion for admission of a third party complaint, the
remedy of the defendant is to file a separate complaint against the third party defendant.
It is in third party complaints that will best illustrate the meaning of ancillary jurisdiction of a trial court.

Q: What is a third (fourth, etc.) party complaint?

A: A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not
a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim. (Sec.11, Rule 6)
Q: Distinguish a third-party complaint from the rules on bringing in new parties.
A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action.
Whereas in bringing in new parties, if one or more of the defendants in a counterclaim or cross-claim is already a party to
the action, then the other necessary parties may be brought in under the rules on bringing in new parties
Q: Why is leave of court necessary in third (fourth, etc.) -party complaint?
A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be located; or
unnecessary issues may be introduced; or the introduction of a new and separate controversy. (Herrera, Vol. I, p. 705, 2007
ed.)
Q: What are the tests to determine whether the third-party complaint is in respect of plaintiffs claim?
A:
1. Whether it arises out of the same transaction on which the plaintiffs claim is based, or, although arising out of another
or different transaction, is connected with the plaintiffs claim;
2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim
against the original defendant; and
3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the
plaintiffs claim.
Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint,
regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action
(Republic v. Central Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968).
A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs v. Cloribel, G.R. No. L21036, June 30, 1977).
Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional party. Thus,
a defendant has no vested right to file a third party complaint (China Banking Corporation vs. Padilla, G.R no. 143490, Feb.
2, 2007; Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full payment,
Abby went after UNICAPs debtor Ben. Ben is a policy holder of Insular. The courts sheriff then served a
notice of garnishment to Insular over several account receivables due to Ben. Insular refused to comply with
the order alleging adverse claims over the garnished amounts. The trial court ordered Insular to release to
Abby the said account receivables of Ben under the policies. Insular then filed a petition for certiorari with
the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order
despite its adverse claim on the garnished amounts. The CA gave due course to the petition and annulled the
order of the trial court. Is the Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a third-party claim. Since the
third-party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its
claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against
the bond filed by the judgment creditor in favor of the sheriff. The rights of a third-party claimant should be decided in a
separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22, 2006).
Q: What is Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary
jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before
it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and
lawyers may be heard, and grant an injunction, attachment or garnishment.
Let us say that the subject of the complaint is the recovery of 1M unpaid loan. The competent court is an
RTC. The defendant asks the court for permission to file an answer with a third party complaint. In the third
party complaint, the defendant asserts that Juan de la Cruz is bound to pay defendant the sum of 200K by
reason of contribution, indemnity, subrogation or any other relief. With respect to the complaint, there is no
question as to jurisdiction as the competent court is really an RTC. It is with respect to the third party
complaint where a jurisdictional issue is present. The third party complaint is effectively a complaint filed by
the defendant against a stranger to the case, and the amount sought to be recovered is 200k, which is an
amount not within the jurisdiction of the RTC. Can the court, upon motion by the third party defendant, order
the dismissal of that third party complaint on the ground of lack of jurisdiction over the subject matter of the
case?
No. We apply rule of ancillary jurisdiction of a trial court. If the trial court has jurisdiction over the principal complaint filed
by the plaintiff against the defendant, the same court will exercise ancillary jurisdiction over all collateral pleadings,

incidental pleadings that are related to the complaint. Thus, the third party complaint to recover 200k is still cognizable by
the same court.
Is it correct to say that third party complaint or fourth party complaint would be the only pleadings which will
enable a litigant to bring in a stranger to the case? Can a litigant bring in a stranger without a third or fourth
party complaint?
No. The Rule does not say that it is the only means/pleading available to bring in a stranger to the case.
Can the defendant compel a stranger to be a party to the case by filing a counterclaim or cross-claim?
The law authorizes the defendant to bring in a stranger by filing a permissive or compulsory counter-claim. The law
authorizes the defendant to bring in a stranger to the case through the filing of a cross-claim. Although the Rules defines a
cross-claim as a claim by a defendant against his co-defendant, the Rules does not say that in filing a cross-claim against a
co-defendant that a third person can be impleaded in the cross-claim.
In the definition of a counterclaim, the defendant could set up the counterclaim against the plaintiff or against any party or
person who is not yet a party to the case, as long as the court can acquire jurisdiction over the person of the said person.
Why do we allow a defendant to bring in a stranger to the case by not using a third-party complaint but by
cross-claim or counterclaim, especially when such is compulsory?
Because there is another provision in the Rules which say that if there is a compulsory counterclaim or cross-claim not set
up in the answer, that compulsory counterclaim or cross-claim are barred. If there is a need to implead a stranger, he
should be allowed to implead a stranger, although not via a third party complaint.
Sec. 11 Rule 6 provides a cross-claim or counterclaim could be the basis for the court to bring in a stranger to the case for
the complete determination of the issues.
FORMS OF A PLEADING
A pleading must always be signed. An unsigned pleading will be treated as a sham pleading. You cannot submit an
unsigned pleading. The court motu propio can order the striking out of the pleading.
Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for him. Either or both can sign the pleading.
Are there pleadings that are inadmissible by the court if the only signature is that of the lawyers?
By way of exception, yes, in case of marriage annulment cases, according to the SC Circular, the complaint and the answer
must be signed also by the party himself. If signed only by the lawyer alone, the court will not accept the pleading.
But generally, the signature of the counsel is enough for a pleading to be accepted by the court.
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
2. That to the best of his knowledge, information and belief there is good ground to support it; and
3. That it is not interposed for delay. (Sec. 3, Rule 7)
VERIFICATION
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit. (Sec. 4, Rule 7)
Q: What is the significance of verification?
A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is
cause to treat the pleading as unsigned and dismissible (Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A
Restatement for the Bar, p. 60, 2009 ed.)
Q: What are the pleadings that should be verified?
A: The following should be verified:
1. Petition for relief from judgment
2. Petition for review from the RTCs to the CA
3. Petition for review from the CTA and quasi-judicial
agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or final orders and
resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final orders
or resolutions of constitutional commissions

10. Petition for certiorari, prohibition, mandamus, quo

warranto
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful detainer
13. Petition for indirect contempt
14. Petition for appointment of general guardian
15. Petition for leave to sell or encumber property of an
estate by a guardian
16. Petition for the declaration of competency of a ward
17. Petition for habeas corpus
18. Petition for change of name

19. Petition for voluntary judicial dissolution of a

corporation;
(1996 Bar Question)
Q: What are the effects of lack of verification?
A:
1. A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading
(Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence,
it produces no legal effect (Sec. 3, Rule 7)
2. It does not necessarily render the pleading
defective. It is only a formal and not a jurisdictional
requirement. The requirement is a condition affecting only
the form of the pleading (Benguet Corp. v. Cordillera
Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005)
and non-compliance therewith does not necessarily render
it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471,
Feb. 5, 2007)
3. The absence of verification may be corrected by
requiring an oath. The rule is in keeping with the
principle that rules of procedure are established to secure
substantial justice and that technical requirements may be
dispensed with in meritorious cases (Pampanga Sugar
Development Co., Inc. v. NLRC, G.R. No. 112650, May 29,
1997)
If the law requires a pleading to be verified, but the
pleading is not verified or there is insufficient
verification, the absence or insufficiency would
mean that the pleading is effectively an unsigned
pleading. Therefore it produces no legal effect.
With respect to verification, the general rule is we do not
require that pleadings should be verified. It is only in
instances where the law requires verification that
the pleading should be verified. Also, take note that
Rule 7 is very emphatic as to how to verify a pleading.
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares that
the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of his personal
knowledge or based on authentic records (Sec. 4, Rule 7)
If the verification is not according to the tone given in the
Rules, that will be an inadequate or insufficient
verification. And under Rule 7, the absence or inadequacy
of the verification shall result in an effectively unsigned
pleading.
But the SC keeps on ignoring the Rules on verification.
Although it would appear in Rule 7 that absence of
verification could be a fatal defect, the SC keeps on ruling
that the absence of verification is only a formal defect. If
you come across a question concerning the need to verify
a pleading or determining the adequacy of a verification in
a pleading, and you are asked what is the effect, based on
rulings by the SC, in instances required by law for
submission of a pleading with an inadequate verification is
only a formal defect.
A complaint, a permissive counterclaim, cross-claim,
a third/fourth party complaint, all of these being
initiatory pleadings, must have a certification of
non-forum shopping. Does it mean to say that
Verification of a pleading is now the general rule,
given that in Rule 7, initiatory pleadings must carry
with them a certification of non-forum shopping?
No. Certification of Non-forum shopping is different from
verification of a pleading.

20. Petition for correction or cancellation of entries in Civil

Registry.
Verification of a pleading refers to the allegations in
the pleading. The verification states that one has read
the pleading and that it is correct based on his personal
knowledge or based on authentic records. The contents
of certification of non-forum shopping does not
have anything to do with the contents of an
initiatory pleading, as it simply certifies that no
similar case had been filed in any other court,
tribunal or body, and to notify the court right away
if one should come to know of such fact.
In the case of a Certification of Non-Forum Shopping, the
SC appears to have adapted the rule of substantial
compliance as to the requirements of the certifications
contents. Take note that the Rules say that all principal
plaintiffs should sign the certification. Otherwise, the
certification will be ineffective. This defect is not curable
by amendment under Rule 7.
There was a recent case wherein the complaint had 5
principal plaintiffs and only two of them signed. The
defendant challenged the authority of the court receive
the case as the certification was ineffective. The court
refused to dismiss the case. The court said that it will go
ahead with the case but will drop the claims where the
non-signing plaintiffs are concerned. In effect, the court
said the signature of the two plaintiffs will of substantial
compliance with the requirement.
As to the issue of a lawyer signing the certification of nonforum shopping, the general rule being that a party
himself must sign, if the lawyer sign for the plaintiff, the
lawyer must be able to show his authority to do so via a
special power of attorney authorizing him to sign in the
stead of his client.
REQUIREMENTS OF A CORPORATION EXECUTING THE
VERIFICATION/CERTIFICATION OF NON-FORUM
SHOPPING
Q: What is the rule when the plaintiff is a juridical
person?
A: The certification against forum shopping where the
plaintiff is a juridical entity like a corporation, may be
executed by properly authorized person. This person
may be a lawyer of a corporation. As long as he is duly
authorized by the corporation and has personal knowledge
of the facts required to be disclosed in the certification,
such may be signed by the authorized lawyer (National
Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil
Procedure: A Restatement for the Bar, p. 70, 2009 ed.)
Q: Corporation XYZ is the petitioner in a civil case.
Alexander, president of corporation XYZ, signed the
certification against forum shopping in behalf of
said corporation without presenting any proof of
authority from the corporation. Is the certification
against forum shopping valid? If not, how may it be
cured?
A: No. When the petitioner in a case is a corporation, the
certification against forum shopping should be signed by
its duly authorized director or representative. The
authorized director or representative of the corporation
should be vested with authority by a valid board
resolution. A proof of said authority must be attached with
the certification (PAL v. FASAP, G.R. No. 143088, Jan. 24,
2006).
RULE 9 (Effect of Failure to Plead) and Omnibus
Motion Rule

Basic Principles contained in Rule 9:

1. Omnibus Motion Rule all objections that are not
included are deemed waived if not set up in the
motion to dismiss.
2. Because of the rules in joinder of causes and
joinder of parties, there could be several causes
actions that can be alleged in the complaint either
joined or in the alternative; there could be several
defenses set up in the answer, also either jointly or
in the alternative. Rule 3 in relation to Rule 9 also
says that since there could be alternative causes or
defenses, we can also have joined and/or
alternative defendants.
Omnibus Motion Rule a defense is waived if not set
in defenses in the pleadings.
Q: What is the Omnibus Motion Rule?
A:
GR: All available grounds for objection in attacking a
pleading, order, judgment, or proceeding should be
invoked at one time; otherwise, they shall be deemed
waived (Sec. 8, Rule 15).
XPN: The court may dismiss the case motu
propio based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendencia;
3. Res judicata; and
4. Barred by statute of limitations (Sec. 1, Rule 9)
Non-waivable defenses in civil procedure
Res judicata
Prescription
Lack of jurisdiction over the subject matter
Litis pendencia
Note: A previous decision or judgment will bar the filing of
another case similar or tackling the same issues, having
the same parties, and the same or related reliefs. In a civil
case, it is called res judicata, while in a criminal case, it is
called double jeopardy.
In the case of criminal cases, there is the defense that the
information does not charge an offense. In civil cases, this
is equivalent to Rule 16, failure to state a cause of action.
In civil cases, if the complaint does not properly allege a
cause of action and the complaint was not amended at all,
where the defendant does not file a motion to dismiss, the
case went to trial, and the plaintiff showed in the trial that
he indeed has cause of action, the complaint is deemed
amended. This is called amendment to pleadings to
conform to evidence.
Thus, in civil cases, the failure to state a cause of action or
to improperly allege such is waivable, the remedy being an
amendment to conform to evidence. The court may order
such amendment be made.
PRINCIPLE OF AMENDMENT OF PLEADINGS TO
CONFORM TO EVIDENCE
Amendment to pleadings may be made to conform
to presented evidence.
When may amendment be made to conform to or
authorize presentation of evidence?
A:
1. When issues not raised by the pleadings are tried with
the express or implied consent of the parties.
Note: Failure to amend does not affect
the result of the trial of said issue.

Can there be a judgment in the alternative?

Yes. Note: Under Rule 60 (Replevin), in its Section 9,
alternative judgment may be had for either the
delivery of the personal property or the value
thereof in case delivery cannot be had or made,
plus damages the party may be able to prove and
costs.
Nothing is mentioned in the rules about the propriety of a
complaint with plaintiffs named in the alternative, as
plaintiffs are named jointly. But if we follow the general
rule that pleadings should be liberally interpreted to
provide for a fast, speedy and inexpensive determination
of the case, the SC might allow a complaint where the
plaintiffs are named in the alternative, which is followed in
the federal rules of procedure in the US where plaintiffs
can be named in the alternative, causes of action, as well
as defenses alleged in the alternative. Unfortunately, one
of the rules not incorporated in our Rules was that of
plaintiffs named in the alternative. By express provision in
the rules, we have defendants named in the alternative,
causes and defenses alleged in the alternative. We can
even have judgments in the alternative form.
With respect to the non-waivable defenses given in Rule 9,
it sounds better to compare the non-waivable defenses in
civil actions and non-waivable defenses in criminal cases.
Non-waivable defenses in criminal procedure
Double jeopardy
Prescription of the penalty imposed
Lack of jurisdiction over the subject matter
2. Amendment may also be made to authorize
presentation of evidence if evidence is objected to at the
trial on the ground that it is not within the issues made by
the pleadings, if the presentation of the merits of the
action and the ends of substantial justice will be subserved
thereby (Sec. 5, Rule 10).
The information submitted by the prosecutor did
not really allege a crime was committed. But the
prosecutor was able to show in court by the
evidence presented that indeed a crime was
committed. Can amendment of pleadings to conform
to evidence be allowed in this case?
No, it cannot be allowed. It will violate the constitutional
right of the accused to be informed of the charges against
him. We can apply amendment of pleadings to conform to
evidence in a criminal case so long as the constitutional
right of the defendant is not violated.
DEFAULT
Q: When is a declaration of default proper?
A: If the defending party fails to answer within the time
allowed therefor, the court shall upon motion of the
claiming party with notice to the defending party, and
proof of such failure, declare the defending party in default
(Sec. 3, Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.)
Q: In what situations where declaration of default is
proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive
pleading despite valid service of summons;
2. Defendant filed an answer or responsive pleading but
beyond the reglementary period; and
3. Defendant filed an answer to the court but failed to
serve the plaintiff a copy as required by the Rules.

EFFECT OF AN ORDER OF DEFAULT

Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in court.
The loss of such standing prevents him from taking part in
the trial [Sec. 3(a), Rule 9];
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings [Sec. 3 (a), Rule 9]. It is submitted that he
may participate in the trial, not as a party but as a witness;
and
3. A declaration of default is not an admission of the truth
or the validity of the plaintiffs claims (Monarch Insurance
v. CA, G.R. No. 92735, June 8, 2000).
RELIEF FROM AN ORDER OF DEFAULT
Q: What are the reliefs from an order of default?
A:
1. After notice of order and before judgment The
defendant must file a verified motion to set aside the order
of default upon proper showing that:
a. His failure to answer was due to fraud,
accident, mistake or excusable negligence; and
b. That he has a meritorious defense. [Sec. 3(b),
Rule 9] (2000 & 1999 Bar Question)
2. After judgment and before judgment becomes final and
executory He may file a motion for new trial under Rule
37. He may also appeal from the judgment as being
contrary to the evidence or the law (Talsan Enterprises,
Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11,
2009)
3. After the judgment becomes final and executory he
may file a petition for relief from judgment under Rule 38
(Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12,
1992) (2006, 1998 Bar Question)
4. Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
considered to have acted with grave abuse of discretion
amounting to lack or excess of jurisdiction and when the
lack of jurisdiction is patent in the face of the judgment or
from the judicial records, he may avail of the special civil
action of certiorari under Rule 65 (Balangcad v. Justices of
the CA, G.R. No. 83888, Feb. 12, 1992)
EFFECT OF A PARTIAL DEFAULT
Q: What is the effect of partial default?
A:
GR: The court will try the case against all defendants upon
the answer of some.
XPN: Where the defense is personal to the one who
answered, in which case, it will not benefit those who did
not answer e.g. forgery. (1995 Bar Question)
EXTENT OF RELIEF
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be
different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However, if the
court orders submission of evidence, unliquidated
damages may be awarded based on such.
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Q: When is default not allowed?
A:
1. Actions for annulment;
2. Declaration of nullity of marriage and legal separation
[Sec. 3(e), Rule 9]; and

3. In special civil actions of certiorari, prohibition and

mandamus where comment instead of an answer is
required to be filed.
There are several instances where declaration of default is
prohibited like mortgage, the rules on summary
procedures, Writ of Amparo, Writ of Habeas Data, and
marriage related cases. It is not correct to say that it is
absolute in civil actions that if a defendant does not file his
responsive pleading, he can be declared in default. What is
clear is the general rule: If a complaint is filed, summons is
served upon the defendant, but defendant does file an
answer within the reglementary period, the defendant can
be declared to be in default upon motion of the plaintiff.
The court cannot motu propio declare the defendant in
default. Motion must be made by the plaintiff before
declaration of default can be had. Failure to file the motion
for declaration of default by the plaintiff can result to the
complaint being dismissed for failure to prosecute for an
unreasonable length of time under Rule 17. It is a dismissal
with prejudice.
Suppose Plaintiff files a motion for declaration of
defendant in default, but the motion was for that of
an ex-parte motion to declare defendant in default.
The reasoning is that since the defendant had not
bothered to file an answer, there is no use of
serving notice to the defendant. This is for the
plaintiff to prevent the defendant from entertaining
the idea that he must file an answer to prevent
being declared in default. Is plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to
declare defendant in default should be served upon the
defendant. If such copy is not served upon the defendant,
that motion will not be acted upon by the court.
What if the defendant filed an answer after
receiving a copy of the motion to declare him in
default, can the court still declare him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of
policy, an answer filed out of time will not result in the
defendant in being declared in default. SC held repeatedly
that as much as possible the technical aspects of default
should not be applied strictly in the interest of furtherance
of justice. Even if the period to answer has already
expired, but an answer is filed out of time, the courts will
still admit that answer and deny the motion to declare the
defendant in default. The reason why SC adopted this
policy is because at present, under Rule 9, if defendant is
declared in default, the court can right away render a
judgment in default against defendant without conducting
a trial. Under Rule 9, the court is given 2 choices: to render
a judgment of default based on the complaint (judgment
on the pleadings), or to order the complainant to present
evidence ex-parte in support of his allegations. At least in
the second option, there can be presentation of evidence,
unlike in the first option where only the pleadings will be
the basis of the judgment. And if there is a trial ex-parte on
default ordered by the court, the defendant will not be
allowed to participate in the proceedings, unless he is able
to secure an order to lift the default.
Rule 9 is very explicit in stating that the award in
default judgments cannot be greater than that
prayed for in the complaint, even if there is an ex-parte
presentation of evidence showing evidence thereto. This
limiting of award is only allowed in default cases where
plaintiff is allowed to present evidence ex-parte.
Default Under Rule 18 Pre-Trial

Plaintiff does not appear during pre-trial or failed to submit

pre-trial brief = dismissal of the complaint.
Defendant does not appear during pre-trial or nonsubmission of pre-trial brief on time = ex parte
presentation of evidence by plaintiff and court can render
judgment based thereon.
Comparison between Rule 9 and Rule 18 Default
Rule 9
In Rule 9, defendant shall be declared in default for not filing
an answer.
The court cannot grant a relief more than that alleged in the
complaint.
In Rule 9, the defendant in default has not filed an answer at
all. The court is considered to have been taking pity on a
defendant who had surrendered.

During ex parte presentation during pre-trial, the

plaintiff was able to prove damages of 2M. However,
the complaint alleges only 1M. The court awarded
2M. Is the court correct? Why?
Yes, the court is correct. This is because the defendant has
failed to comply with a court order to either appear in pretrial or to submit a pre-trial brief, and thus the court can
sanction defendant at default. Also, since the court allows
the plaintiff, as provided under Rule 18, to present
evidence to prove his allegations, what the plaintiff was
able to prove shall be the basis of the courts judgment.
PARTIAL DEFAULT
Partial default one of several defendants, sued under a
common cause of action, is declared in default, while the
others can still participate in the case.
Default is founded on the premise that the defendant has
been served with summons but chose not to response
within the reglementary period.
Can there be a judgment in default against the nonanswering defendants?
No, the court cannot do that. In case of several
defendants, of which some have filed an answer, the most
that the court can do is to declare the non-answering
defendants in default. The court cannot declare the
answering defendants in default as there is no reason to
do that. Insofar as the non-answering defendant is
concerned, they shall be declared in default but there
could be a separate judgment that will be rendered.

under a common cause of action with answering

defendants.
In one case, the creditor who sued 2 defendants
where one had answered and other failed to answer,
and subsequently ordered by the court to be
declared in default, his counsel most likely told him
about this principle in default. The plaintiff moved
for the dismissal of the complaint against the
answering defendant. The answering defendant did
not object to the dismissal. The case caption was
then changed to plaintiff versus the defendant in
default. Can the court now ask for presentation of
evidence ex-parte?
SC held that it is not necessary. Even if the answering
defendant has been dropped from the case upon the
initiative of the plaintiff, what the trial should examine is
whether or not the answering defendant is an
indispensable party to the case. If answering defendant is
an indispensable party, then the court should require the
inclusion of such party. What the court should do is to
order the plaintiff to amend his pleadings and include the
indispensable party. Failure to do so will be dismissal of the
complaint with prejudice under Rule 17. This is because if
answering defendant is an indispensable party but he is
not around, the proceedings of the court could be void, it
would be useless for the court to try the case. And under
the new doctrines enunciated by the SC, if an
indispensable party has not been included or has been
dropped from the case, the court should compel the
indispensable party to be impleaded via an amendment to
the complaint. Failure of plaintiff to do so will allow the
court to dismiss the case with prejudice under Rule 17 for
refusal to obey a lawful court order.
Since it is disadvantageous for a non-answering
defendant to be declared in default, what are the
remedies given by law to the defaulting defendant?
To file a motion to lift the order of default at any time
before judgment, the motion, filed with an affidavit of
merit along with his proposed answer, alleging the reasons
of why he defaulted and alleging that he has a good
defense as stated in the proposed answer.
If the motion to lift the order of default is denied, it is
inappealable, being an interlocutory decision.
Denial to lift order of default Rule 65 can be had, but
appellant must show that the court acted with lack or in
excess of jurisdiction
If the court has already rendered judgment by default
(after motion to life order of default has been denied),
defendant can appeal. A judgment by default is an
adjudication on the merits, hence appealable, Rule 65 is
automatically non-available as a rule.

Can the answering defendant call the defendants in

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

If court lifted order of default, the defendant should file the

answer as soon as possible. The court, as a matter of
public policy, should allow the defendant who had been in
default to file his answer. The court should not deprive
defendant the right to present his side before the court.

If the court finds for the answering defendant, will

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

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Plaintiff filed a case for accion reinvindicatoria. The
assessed value of the property determined
jurisdiction. It was filed in the RTC. No allegation
was included as to the value of the property. Can
RTC dismiss the case?
Yes. If the court is unable to determine that it has
jurisdiction over the case, as in this instant, it may dismiss

the case for lack of jurisdiction over the subject matter of

the case.
Plaintiff failed to make the necessary jurisdictional
averment. Having discovered it, he amended the
complaint and submitted it prior to an answer
made. Is the plaintiff correct?
Yes. The amendment was an amendment as a matter of
right. The plaintiff has the right amend his complaint once
before a responsive pleading is filed, even to the extent of
amending the averment to confer jurisdiction. Thus, the
plaintiff is correct to amend his pleading to include the
jurisdictional averment.
This is applicable for example in unlawful detainer,
wherein the plaintiff failed to allege in his complaint that a
final demand had been made. Plaintiff may amend his
complaint as a matter of right to include the said
allegation.
The plaintiff made a change in the cause of action in
the complaint, and the amendment was as a matter
of right. Is this allowed? What if an answer was
already filed?
If amendment is a matter of right, the plaintiff can change
his pleadings cause of action.
If amendment is not a matter of right, the plaintiff must be
authorized by the court (given leave) to amend the
pleading to include another cause of action or change a
cause of action.
All pleadings can be amended as a matter of right
or with prior leave of court.
Philippine Ports Authority vs. Gothong 2008 (Change
from a complaint for specific performance to one for
injunction.)
If amendment is a matter of right, the plaintiff can change
his pleadings cause of action.
If amendment is not a matter of right, the plaintiff must be
authorized by the court (given leave) to amend the
pleading to include another cause of action or change a
cause of action.
Change in the cause of action in the complaint is a matter
of discretion upon the court once an answer had already
been filed. As long as the amendment gives the parties the
opportunity to tell the court what is the true dispute
between the parties, and as long as it does not involve
prejudice to substantial justice. Hence, if the complaint
was amended not as a matter of right, the defendant can
also amend his answer, if needed, to properly respond to
the amended complaint. In the Gothong Case, the SC
encouraged trial courts to liberally the Rule on amendment
of pleadings, whether as a matter of right or as a matter of
discretion.
Defendant can change his denials in his answer from
general to specific by filing an amended answer as a
matter of right. 2nd, 3rd etc. amendment must be with
leave of court.
Amendment as a matter of right can only be availed
of once, and it can be availed of only before an
answer has been filed.
Can we amend pleadings if the case has already
been decided and is on appeal either in the CA or
SC?
Yes. Amendments can be done if it is only formal in nature.
But if the amendment is substantial, appellate courts will

hesitate as such amendment will injure the rights of

parties who had not appealed. What can be brought on
appeal are issues that have been raised from the trial
court.
AMENDMENT TO CONFORM TO EVIDENCE UNDER
RULE 10
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE
Q: When may amendment be made to conform to or
authorize presentation of evidence?
A:
1. When issues not raised by the pleadings are tried with
the express or implied consent of the parties.
Note: Failure to amend does not affect the result
of the trial of said issue.
2. Amendment may also be made to authorize
presentation of evidence if evidence is objected to at the
trial on the ground that it is not within the issues made by
the pleadings, if the presentation of the merits of the
action and the ends of substantial justice will be subserved
thereby (Sec. 5, Rule 10).
If the evidence presented by the plaintiff is not material to
the allegations in his complaint, and there is an objection
by the defendant, that objection should be sustained. But
if the presentation of evidence that is not material to the
complaint is not objected to, the court can motu propio tell
the plaintiff not to continue the presentation of that
evidence. For instance, the case if for accion
reinvindicatoria, where the issue is title to or possession of
the real property. During the trial, the plaintiff presented
evidence that the defendant owed him 3M, but not any
evidence pertaining to the right of possession of the real
property. If you are the lawyer of the defendant in this
case, you will have to object that the evidence presented
is not material to the allegations of the case for recovery
of ownership and possession of real property. If there is an
objection raised by the defendant, the court will sustain
that objection, the plaintiff will not be allowed to present
his evidence concerning the 3M liability. But if the
defendant did not object, the court cannot refuse to admit
the evidence. The court cannot refuse to admit any
evidence not objected to by the other side.
When the time comes for the court to decide on the
case, can court will simply award the plaintiff 3M,
although the plaintiff has not alleged this fact at all
in his complaint?
Yes. The reason is that rule in amendment to conform to
evidence under Rule 10. There is no need for the plaintiff
to formally amend his pleadings, it takes place by
operation of law in order to conform with the evidenced
submitted by the plaintiff.
Q: Distinguish an amended
supplemental pleading.
A:
Amended Pleading
Refer to the facts existing
at the time of filing of
original pleading
Supersedes the original,
causes of action may be
changed
May be amended without
leave of court before a
responsive pleading is
filed.

pleading from a
Supplemental Pleading
Refers to facts occurring
after the filing of the
original pleading.
Merely supplements the
original pleading.
Always with leave of court

Amendment must be
appropriately marked.

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

EFFECT OF AMENDED PLEADING

Q: What is the effect of an amended pleading?
A: An amended pleading supersedes the pleading it
amends. However, admissions in the superseded pleading
can still be received in evidence against the pleader.
Claims or defenses alleged therein but not incorporated or
reiterated in the amended pleading are deemed waived
(Sec. 8, Rule 10).
An amended pleading takes the place of the original
pleading. Will the court discard the original
pleading?
No, the court will retain the pleading for court record
purposes. Admissions made in superseded pleadings are
considered extra-judicial admissions. They can be
rebutted.
Admissions made in the original pleadings are still
admissions, but cannot be considered as judicial
admissions. They are mere extra-judicial admission by the
person making it.
A judicial admission is always conclusive. It cannot be
subject to rebuttal by evidence.
PERIOD TO FILE PLEADINGS
In the periods for filing of pleadings, there is nothing
mentioned as to the period as to when a complaint should
be filed. Nothing is fixed in the rules. The reason is that the
filing of the complaint is solely dependent upon the whim
of the plaintiff. If SC does so fix such period, it will be
invading the turf of substantive law. If there is a period
fixed as to when that complaint should be filed, it is
determined by substantive law so long as the complaint is
filed within the period of prescription. Prescription is a
matter of substantive law. With respect to counterclaim,
cross-claim or third party complaint, there is a period fixed
in the Rules. Of particular is the period for filing a crossclaim and a compulsory counter-claim. They must be filed
within the period as that for the filing of an answer.
Why?
Because even if the cross-claim, counter-claim or thirdparty complaint are claim pleadings, the rules do not allow
the defending party to file an answer separately from a
counterclaim, cross-claim or a third-party complaint. Such
pleading must be included in his answer. Thus a defendant
must file an answer with a counterclaim, cross-claim or a
third-party complaint. Otherwise, defendant may file a
motion for leave to file an amended answer with crossclaim, counterclaim, etc. With respect to a third-party
complaint, defendant would have to first file a motion for
leave to file a third-party complaint along with the
amended answer, attaching the amended answer to the
motion.
Because of this rule, the filing of a compulsory
counterclaim should be the same as that provided for the
filing of an answer (15-30-60, as the case may be). If
there is an answer filed, but the defendant feels he should
file a counterclaim, he will have to file a motion for leave
to file an amended answer with counterclaim (with a copy
of the amended answer attached).
BILL OF PARTICULARS

Motion for leave to file bill of particulars there is

inadequacy of the allegations contained in the complaint.
As a rule, Rule 16, as to a bill of particulars, the
inadequacy of the allegations in a complaint is not a
ground for the filing of a motion to dismiss the complaint.
Can there be an instance when a trial court may
dismiss a case on ground of inadequacy or
vagueness in the allegations in the complaint?
Yes, by way of exception. The only instance when a
defendant may file motion to dismiss due to vagueness or
inadequacy of the allegations in the complaint, instead of
filing motion for bill of particulars, is when the RTC is
sitting as a commercial court. In this case, where there
is indefiniteness or vagueness in the allegations of the
complaint, defendant may file a motion to dismiss. This is
because, in commercial courts, a motion for bill of
particulars is forbidden as outlined in the circular for
commercial courts.
In ordinary civil cases, motion for bill of particulars is
available to both sides. They should be in the form of a
motion.
While a motion for bill of particulars should comply with
the requisites of a motion, so as not to be deemed as a
useless piece of paper, when the motion is submitted to
the court, the court can act upon the motion right away,
without waiting for the hearing set for the motion, either
granting or denying such motion.
By its very nature, a motion for a bill of particulars should
be filed by a defendant before submitting an answer, or in
case of a plaintiff, a reply. It is useless if a defendant files a
motion for bill of particulars after he has already filed his
answer. It is understood that if a defendant has filed an
answer, it would mean that he has understood fully the
allegations stated in the complaint.
What is a bill of particulars and when can it be
availed of?
A: Before responding to a pleading, a party may move for
a definite statement or for a bill of particulars of
any matter which is not averred with sufficient
definiteness or particularity to enable him properly
to prepare his responsive pleading. If the pleading is a
reply, the motion must be filed within 10 days from
service thereof(Sec. 1, Rule12). (2003 Bar Question)
Note: Its purpose is to aid in the preparation of a
responsive pleading. An action cannot be dismissed on the
ground that the complaint is vague or definite. (Galeon v.
Galeon, G.R. No. L-30380, Feb. 28, 1973).
If denied, the movant should file the required pleading in
the remaining period, which should not be more or less
than 5 days.
But if the motion is granted, in case of a defendant, the
court will order the submission of an amended complaint
or a bill of particulars, which will form part of the
allegations contained in the complaint.
If the plaintiff does not obey the order of the court
to submit a bill of particulars, what is the remedy of
the defendant?
The remedy is either to strike out the parts of the pleading
that are vague. Or, the more practical move, the
defendant move to strike out the entire pleading, wherein
the case is dismissed.
The remedy if pleading still remains vague after bill was
approved and particulars were provided for:
1. Striking out parts still vague

2. Striking out the entire pleading (if it is a complaint, the

case is dismissed. If it is the answer stricken, motion for
declaration of defendant in default.)
If the defendant disobeyed the court order to amend his
answer or to supply bill of particulars, the situation will be
as if the defendant has not filed an answer at all. The next
recourse of the plaintiff is to file a motion to declare the
defendant in default. This is one instance where the
defendant can be declared in default even though he had
filed an answer on time. Therefore, if the defendant did not
amend his answer or file a bill of particulars, the court can
order the striking out of the answer and thereafter, upon
motion, the defendant can be declared in default. This Rule
is found under Rule 29 (Refusal To Comply With Modes of
Discovery).

b. To give notice to the defendant that an action

has been commenced against him (Umandap v.
Sabio, Jr., G.R. No. 140244, Aug. 29, 2000)
2. Actions in rem and quasi in rem not to acquire
jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process (Gomez v. CA,
G.R. No. 127692, Mar. 10, 2004).
What is the effect of voluntary appearance before
the court? Explain.
A:
GR: The defendants voluntary appearance shall be
equivalent to service of summons and the consequent
submission of ones person to the jurisdiction of the court
(Sec. 20, Rule 14).
Note: Voluntary appearance cures the defect in the
service of summons.

SUBSTITUTE SERVICE OF PLEADINGS AND MOTIONS

VS. SUBSTITUTE SERVICE OF SUMMONS
Filing and service of pleadings, motions and other
papers in the court:
Substitute service of pleadings, motions and other
papers: Motion/pleading/other papers cannot be served in
person or by registered mail. Movant should submit the
motion and the pleadings with the clerk of court with proof
that personal and mail service failed. Upon receipt of
court, substituted service is now completed.
Substitute service of summons: This is resorted to
when there is failure on the part of sheriff to serve
summons in person upon the defendant after several
attempts and despite diligent efforts. Sheriff then can
serve the summons at the resident of the defendant upon
a person of sufficient age of discretion, or instead of the
residence, at his place of business, upon a competent
person in charge. The reason for resorting to such
substituted service must be explained.
If a movant files a motion against an adverse party, but
chooses a mode of service other than personal service, he
must explain the reason why. Recently this has been
relaxed by the court, depending on the nature of the case
or depending on the nature of the motion to be served or
the pleading filed in the court.
But in case of a motion to dismiss, the courts are very
strict, personal service is a must. If it was served by mail,
the court requires submission of proof of actual
delivery/receipt by mail (the registry return card). If such
proof is not presented, the court will not act on the motion
to dismiss for failure to observe the requirements
concerning service of this important motion.
SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the
action brought against him (Gomez vs. Court of Appeals,
G.R. No. 127692, March 10, 2004). An important part of
that notice is a direction to the defendant that he must
answer the complaint within a specified period, and that
unless he so answers, plaintiff will take judgment by
default and may be granted the relief applied for (Sec. 2,
Rule 14). (Riano, p. 411 , 2005 ed.)
Q: What are the purposes of summons?
A:
1. Actions in personam
a. To acquire jurisdiction over the person of the
defendant; and

XPN: Special appearance in court to challenge its

jurisdiction over the person of the defendant and the
inclusion in a motion to dismiss of other grounds shall not
be deemed a voluntary appearance (Sec. 20, Rule 14; La
Naval Drug Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).
Sec. 20, Rule 14, RoC
Instances when appearance of defendant is not
tantamount to voluntary submission to the
jurisdiction of the court:
(a) when defendant files the necessary pleading;
(b) when defendant files a motion for reconsideration of
the judgment by default;
(c) when defendant files a petition to set aside the
judgment of default;
(d) when the parties jointly submit a compromise
agreement for approval of the court;
(e) when defendant files an answer to the contempt
charge;
(f) when defendant files a petition for certiorari without
questioning the courts jurisdiction over his person.
PERSONAL SERVICE
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The service
of summons must be made by service in person on the
defendant. This is effected by handing a copy of the
summons to the defendant in person, or if he refuses to
receive it, by tendering the copy of the summons to him
(Sec. 6, Rule 14). (Riano, p. 423 , 2005 ed.)
SUBSTITUTED SERVICE
Q: When is substituted service of summons proper?
A: In our jurisdiction, for substituted service of summons
to be valid, it is necessary to establish the following:
1. The impossibility of service of summons in person within
a reasonable time;
2. The efforts exerted to locate the person to be served;
and
3. Service upon a person of sufficient age and discretion in
the same place as the defendant or some competent
person in charge of his office or regular place of business
(Sabio, Jr., 339 SCRA 243 [2000]; Hamilton vs. Levy, G.R.
No. 139283, November 15, 2000). (Riano, p. 427 , 2005
ed.)
CONSTRUCTIVE SERVICE (BY PUBLICATION)
Q: Is leave of court required in constructive service
of summons?
A: This service always requires permission of the court.

Summons is the writ available to a trial court to enable the

court to acquire jurisdiction over the person of the
defendant. Although not the only writ available for the
court to acquire jurisdiction over the person of the
defendant, it is the usual writ used. The court can acquire
jurisdiction over a defendant by compulsion, even though
it has not issued a summons. An example is in the case of
a special civil action under Rule 65, certiorari, prohibition
and mandamus.
Certiorari, prohibition and mandamus are special civil
actions. They are distinct from the case from which that
order or decision has originated. But in Rule 65, the Rules
do not allow the certiorari court or prohibition court to
issue summons to the defendant. What Rule 65 authorizes
is to issue a notice to defendant/respondent requiring him
to submit a comment before the court. That comment will
enable the court to acquire jurisdiction over the person of
the respondent.
There is even that mode of acquisition where the court
need not do anything, wherein a party makes a voluntary
appearance in court.
Service of Summons upon a unregistered/unlicensed
foreign corporation with no resident agent that
transacted in RP:
In a 2011 Circular, summons upon a foreign private
corporation can be served in four ways, with leave of
court:
1. Personal service of summons upon a foreign private
corporation not doing business in RP, with assistance of
DFA and the court of the country where the foreign
corporations main office is located;
2. Publication of the summons in the country where the
foreign corporation has its office
3. By facsimile message or by any electronic device
authorized by the trial court
4. A combination of any one of the three as authorized by
the court.
With respect to domestic private corporations, service of
summons must be effected as stated in the Villarosa vs.
Benito case. It must be served upon the officers of the
corporation stated specifically in the RoC
(President, Managing Partner, GM, Treasurer,
Corporate Secretary or in-house counsel of the
corporation).In the Villarosa case, the branch
manager was the one served with summons, which
is not among those officers listed in the Rules. Thus,
the trial court did not acquire jurisdiction over the
corporation. This is still the rule observed.
EB Villarosa & Partner Co. Ltd. Vs. Benito
It should be noted that even prior
to the effectivity of the 1997 Rules of
Civil Procedure, strict compliance with
the rules has been enjoined. In the case
of Delta Motor Sales Corporation vs.
Mangosing, the Court held:
A strict
compliance with the
mode of service is
necessary to confer
jurisdiction of the
court over a
corporation. The
officer upon whom

service is made
must be one who is
named in the
statute; otherwise
the service is
insufficient. x x x.
The purpose is to
render it reasonably
certain that the
corporation will receive
prompt and proper
notice in an action
against it or to insure
that the summons
be served on a
representative so
integrated with the
corporation that
such person will
know what to do
with the legal
papers served on
him. In other words,
to bring home to the
corporation notice of
the filing of the action.
x x x.
The liberal
construction rule
cannot be invoked
and utilized as a
substitute for the
plain legal
requirements as to
the manner in which
summons should be
served on a
domestic
corporation. x x x.
(underscoring
supplied).
Service of summons upon persons
other than those mentioned in Section
13 of Rule 14 (old rule) has been held as
improper. Even under the old rule,
service upon a general manager of a
firms branch office has been held as
improper as summons should have been
served at the firms principal office. In
First Integrated Bonding & Ins. Co., Inc.
vs. Dizon, it was held that the service of
summons on the general manager of the
insurance firms Cebu branch was
improper; default order could have been
obviated had the summons been served
at the firms principal office.
And in the case of Solar Team
Entertainment, Inc. vs. Hon. Helen
Bautista Ricafort, et al. the Court
succinctly clarified that, for the guidance
of the Bench and Bar, strictest
compliance with Section 11 of Rule 13 of
the 1997 Rules of Civil Procedure (on
Priorities in modes of service and filing)
is mandated and the Court cannot rule
otherwise, lest we allow circumvention of

the innovation by the 1997 Rules in

order
to
obviate
delay
in
the
administration of justice.
Accordingly, we rule that the
service of summons upon the
branch manager of petitioner at its
branch office at Cagayan de Oro,
instead
of
upon
the
general
manager at its principal office at
Davao
City
is
improper. Consequently, the trial
court did not acquire jurisdiction
over the person of the petitioner.
The fact that defendant filed a
belated motion to dismiss did not
operate to confer jurisdiction upon
its person. There is no question that
the defendants voluntary appearance in
the action is equivalent to service of
summons. Before, the rule was that a
party may challenge the jurisdiction of
the court over his person by making a
special appearance through a motion to
dismiss and if in the same motion, the
movant raised other grounds or invoked
affirmative relief which necessarily
involves the exercise of the jurisdiction
of the court, the party is deemed to have
submitted himself to the jurisdiction of
the court. This doctrine has been
abandoned in the case of La Naval Drug
Corporation vs. Court of Appeals, et
al., which became the basis of the
adoption of a new provision in the former
Section 23, which is now Section 20 of
Rule 14 of the 1997 Rules. Section 20
now provides that 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.
The
emplacement of this rule clearly
underscores the purpose to enforce strict
enforcement
of
the
rules
on
summons. Accordingly, the filing of a
motion to dismiss, whether or not
belatedly filed by the defendant, his
authorized
agent
or
attorney,
precisely
objecting
to
the
jurisdiction of the court over the
person of the defendant can by no
means be deemed a submission to
the jurisdiction of the court. There
being no proper service of summons, the
trial court cannot take cognizance of a
case for lack of jurisdiction over the
person
of
the
defendant. Any
proceeding undertaken by the trial court
will consequently be null and void.

Service of summons in case of a partnership:

What the rules require is that summons must be made
upon a GM or managing partner as the case may be.
If there are 4 partners in the partnership, service
upon any of the partners will be a valid service of
summons. All partners under the NCC are

considered as managing partners. Since all partners

under the NCC are presumed to be managing
partners, service upon anyone will be a valid service
of summons.
It is in the acquisition of jurisdiction over natural
persons that there is conflict in jurisprudence.
2006 case
Defendant owed money to a corporation. Defendant
lived in a gated subdivision. The sheriff was not
allowed inside the subdivision. What the sheriff did
was to leave a copy of the summons, together with
the complaint, with the guards. Is there valid
service of summons?
To be literal, no, there was no valid substituted service of
summons. If the summons and the complaint were left
only with the security guard, it did not comply with leaving
at the place of residence of the defendant with some
person of suitable age and discretion then residing therein.
The guards do not actually reside in the place of residence
of the defendant.
The SC stated that the meaning of sufficient age and
discretion does not mean that the person to be served
could be a minor. This person means that this person
should mean a person at least 18 years of age with a
relationship involving confidence with the
defendant. So, if the service of summons was given to a
person who was only a visitor of the defendant, that will
not comply with this requirement.
In this 2006 case, the SC became very liberal. Although it
was clear sheriff did not satisfy the requirements of a valid
service of summons, the SC ruled that the trial court did
acquire jurisdiction over the person of the defendant.
However, in 2009, the SC decided a case involving the
validity of a substituted service of summons not in
accordance with the Rules. If substitute service of
summons is not in accordance with Sec. 7 of Rule 14, the
service is invalid, the court does not acquire jurisdiction
over the defendant. Any proceedings taken by the court
are invalidated.
Concentrate on Sec. 14, 15 and 16 Rule 14
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)
SEC. 15. Extraterritorial service.
When the defendant does not reside and
is not found in the Philippines, and the
action affects the personal status of the
plaintiff or relates to, or the subject of
which is, property within the Philippines,
in which the defendant has or claims a
lien or interest, actual or contingent; or
in which the relief demanded consists,
wholly or in part, in excluding the
defendant from any interest therein, or

the property of the defendant has been

attached within the Philippines, service
may, by leave of court, be effected out
of the Philippines by personal service as
under section 6; or by publication 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, or in any other
manner the court may deem sufficient.
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. (17a)
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.
Former Procedure
Citizens Surety vs. Herrera (Service of summons for
an Action in personam publication of summons with
preliminary attachment of properties)
Sheriff stated that the summons could not be served
personally or by substituted service. The plaintiff filed an
ex parte motion to issue a summons by publication. The
court granted it. Plaintiff caused the publication of the
summons. After 60 days, there was no responsive
pleading. Plaintiff filed a motion to declare defendant in
default. During the hearing of the motion, plaintiff
presented the court the order authorizing publication and
affidavit of the publisher. Plaintiff expected the court to
grant his motion. The court did not, but instead asked the
plaintiff to explain why the complaint should not be
dismissed. The court stated that publication did not enable
the court to acquire jurisdiction of the court. The
requirement left out was a constitutional requirement of
due process, that the action was converted from one in
personam to that one in rem or quasi-in rem. This could be
done, after causing the publication of the service of
summons, by applying with the court for an order for
preliminary attachment of defendants personal properties
in order to acquire jurisdiction over the person over the
defendant.
This conclusion by the plaintiff, aside from Rule 14 Sec. 15,
this is supported by Rule 57 Sec. 1.
Rule 57 SECTION 1. Grounds upon
which attachment may issue.At the
commencement of the action or at any
time before entry of judgment, a
plaintiff or any proper party may
have the property of the adverse
party attached as security for the
satisfaction of any judgment that
may be recovered in the following
cases:
(a) In an action for the
recovery of a specified
amount of money or
damages, other than
moral and exemplary,

on a cause of action
arising from law,
contract, quasicontract, delict or
quasi-delict against a
party who is about to
depart from the
Philippines with intent
to defraud his
creditors;
(b) In an action for
money or property
embezzled or
fraudulently
misapplied or
converted to his own
use by a public officer,
or an officer of a
corporation, or an
attorney, factor,
broker, agent, or clerk,
in the course of his
employment as such,
or by any other person
in a fiduciary capacity,
or for a willful violation
of duty;
(c) In an action to
recover the possession
of property unjustly or
fraudulently taken,
detained or converted,
when the property, or
any part thereof, has
been concealed,
removed, or disposed
of to prevent its being
found or taken by the
applicant or an
authorized person;
(d) In an action against
a party who has been
guilty of a fraud in
contracting the debt or
incurring the obligation
upon which the action
is brought, or in the
performance thereof;
(e) In an action against
a party who has
removed or disposed
of his property, or is
about to do so, with
intent to defraud his
creditors; or
(f) In an action
against a party who
does not reside and
is not found in the
Philippines, or on
whom summons may
be served by
publication. (1a)
The court interpreted these provisions to mean that if
there is publication of the summons, there should be a
proceeding accompanying preliminary attachment over

the personal properties of the defendant. Otherwise, the

court will be unable to acquire jurisdiction over the person
of the defendant. If we are not able to convert the action in
personam to that in rem, the court will not be able to
acquire jurisdiction over the person of the defendant, and
therefore, the court will not have authority at all to
entertain the case.
Note: If the court still did not still acquire
jurisdiction over the defendant despite the
attachment of the personal properties of the
defendant, then the case will be archived. There can
be no dismissal of the case. No prescription will run,
since the complaint is archived.
Citizens Surety vs. Herrera Digest :
Facts:
Citizens Surety and Insurance Co
(Citizens) alleged that at the request of
Santiago Dacanay, it issued 2 surety
bonds to guarantee payment of P5K
promissory notes in favor Gregorio
Fajardo and Manufacturers Bank & Trust
Co respectively. As security, the Santiago
and Josefina Dacanay executed an
Indemnity Agreement to jointly
indemnify Citizens for losses, costs and
expenses (with 12% annual interest) and
a REM over a parcel of land in Baguio.
The Dacanays failed to pay the
promissory notes compelling Citizens to
pay. The Dacanays failed to reimburse
Citizens however, forcing the latter to
cause the extra-judicial foreclosure of
the mortgage and file a case to recover
the unsatisfied balance.

At petitioners request, the respondent

Judge caused summons to be made by
publication in the Philippines Herald. But
despite such publication and deposit of
copy with the Manila post office, the
defendant did not appear within 60 days
from the last publication.
Plaintiff sought the defendants to be
declared in default, but the Judge
eventually dismissed the case, the suit
being in personam and the defendants
not having appeared.

Issue:
W/N summons made by publication is
sufficient for the court to acquire
jurisdiction

Held:

No. In an action strictly in

personam, personal service of
summons, within the forum, 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 defendants.

The proper recourse for the creditor

is to locate properties, real or
personal, of the resident defendant
debtor with unknown address and
cause them to be attached, in which
case, the attachment converts the
action into a proceeding in rem or
quasi in rem and the summons by
publication may be valid.

Given the skill of debtors to conceal

their properties however, the
decision of the respondent Judge
should be set aside and held
pending in the archives until
petitioner tracks down the
whereabouts of the defendants
person or properties.

In 2008, Santos vs. PNOC was decided, which

changed the principles held under Citizens Surety
vs. Herrera.
Santos vs. PNOC Defendant in an Action in personam
can be subject to courts jurisdiction (2008)
The defendant did not file an answer within the
reglementary period. The lawyer of the plaintiff did not
move for publication of summons, but filed only a motion
to allow him to present evidence ex parte. The judge
rendered a decision in favor of the plaintiff. When
defendant learned of the decision, he moved for
reconsideration thereof. The Court then gained jurisdiction
over the person of the defendant mad a voluntary
appearance when the defendant filed his motion for
reconsideration.
Santos vs. PNOC Digest
Facts: PNOC Exploration Corporation,
respondent, filed a complaint for a sum
of money against petitioner Pedro Santos
Jr. in the RTC of Pasig. The amount
sought to be collected was the
petitioners unpaid balance of the car
loan advanced to him by respondent
when he was still a member of its board
of directors.

Personal service of summons were made

to petitioner but failed because the latter
cannot be located in his last known
address despite earnest efforts to do so.
Subsequently, on respondents motion,
the trial court allowed service of
summons by publication. Respondent
caused the publication of the summons
in Remate, a newspaper of general
circulation in the Philippines. Thereafter,
respondent submitted the affidavit of
publication and the affidavit of service of
respondents employee to the effect that
he sent a copy of the summons by
registered mail to petitioners last known
address.
Petitioner still failed to answer within the
prescribed period despite the publication
of summons. Hence, respondent filed a
motion for the reception of its evidence
ex parte. Trial court granted said motion
and proceeded with the ex parte
presentation and formal offer of its
evidence.
Petitioner filed an Omnibus Motion for
Reconsideration and to Admit Attached
Answer, alleging that the affidavit of
service submitted by respondent failed
to comply with Section 19, Rule 14 of the
Rules of Court as it was not executed by
the clerk of court. Trial court denied the
said motion and held that the rules did
not require such execution with the clerk
of court. It also denied the motion to
admit petitioners answer because the
same was filed way beyond the
reglementary period.
Petitioner appeals to the CA via a
petition for certiorari but failed and even
sustained the trial courts decision and
ordered the former to pay the amount
plus legal interest and cost of suit.
Hence, this petition.
Issues:
(1) Whether or not there is lack of
jurisdiction over the petitioner due to
improper service of summons.
(2) Whether or not the rule on service by
publication under Section 14, Rule 14 of
the Rules of Court applies only to actions
in rem, not actions in personam.
(3) Whether or not the affidavit of
service of the copy of the summons
should have been prepared by the clerk
of court and not respondents
messenger.
Held:
(1) Section 14, Rule 14 provides that
in any action where the defendant is
designated as an unknown owner or
the like or when his whereabouts
are unknown and cannot be
ascertained by diligent inquiry,

service may, by leave of court, be

effected upon him by publication in
a newspaper of general circulation
and in such places and for such
times as the court may order. Since
petitioner could not be personally served
with summons despite diligent efforts to
locate his whereabouts, respondent
sought and was granted leave of court to
effect the service of summons upon him
by publication in a newspaper of general
circulation. Thus, petitioner was proper
served with summons by publication and
that there is jurisdiction over his person.
(2) The in rem/in personam
distinction was significant under the
old rule because it was silent as to
the kind of action to which the rule
was applicable but this has been
changed, it now applies to any
action. The present rule expressly states
that it applies in any action where
the defendant is designated as an
unknown owner, or the like, or
whenever his whereabouts are
unknown and cannot be ascertained
by diligent inquiry. Hence, the
petitioners contention that the
complaint filed against him is not
covered by the said rule because the
action for recovery of sum of money is
an action in personam is not applicable
anymore.
(3) The service of summons by
publication is complemented by
service of summons by registered
mail to defendants last known
address. This complementary
service is evidenced by an affidavit
showing the deposit of a copy of
the summons and order for
publication in the post office,
postage for prepaid, directed to the
defendant by registered mail to his
last known address. The rules,
however, do not require that the
affidavit of complementary service
be executed by the clerk of court.
While the trial court ordinarily does
the mailing of copies of its orders
and processes, the duty to make the
complementary service by
registered mail is imposed on the
party who resorts to service by
publication.
Since 2008, the lawyers have made use of Santos vs.
PNOC as the authority to convince a trial court that there is
no need for a publication of summons for the issuance of a
writ of preliminary attachment before the court could
acquire jurisdiction over the person of the defendant.
In 2010, SC resolved another case, Palma vs.
Galvez. In the case of Palma vs. Galvez, the SC held that
we should literally apply what the Rules provides,
particularly Section 16 of Rule 14. If you read Section 16,
the defendant is a resident of RP temporarily out of RP. In
relation to Section 14, if the whereabouts of the defendant
is unknown, there could be publication of summons, and

that would enable the court to acquire jurisdiction over the

person of the defendant.
Palma vs. Galvez (When the whereabouts of
defendant is unknown, there is no need for
publication of summons.)
Reiterates Santos vs. PNOC there is no need , under
Sections 14 to 16 in Rule 14, for the conversion of
an action in personam to that in rem before a court
could acquire jurisdiction over the person of the
defendant.
Now on the merits, the issue for
resolution is whether there was a valid
service
of
summons
on
private
respondent.
In civil cases, the trial court
acquires jurisdiction over the person of
the defendant either by the service of
summons or by the latters voluntary
appearance and submission to the
authority
of
the
former. Private
respondent was a Filipino resident who
was temporarily out of the Philippines at
the time of the service of summons;
thus, service of summons on her is
governed by Section 16, Rule 14 of the
Rules of Court, which provides:
Sec.
16. Residents
temporarily out of the
Philippines. When an
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.
(Emphasis
supplied)
The preceding section referred
to in the above provision is Section 15,
which speaks of extraterritorial service,
thus:
SEC.
15. Extraterritorial
service. When the
defendant does not
reside and is not found
in the Philippines, and
the action affects the
personal status of the
plaintiff or relates to,
or the subject of which
is, property within the
Philippines, in which
the defendant has or
claims
a
lien
or
interest,
actual
or
contingent, or in which
the relief demanded
consists, wholly or in
part, in excluding the

defendant from any

interest therein, or the
property
of
the
defendant has been
attached within the
Philippines,
service
may, by leave of court,
be effected out of the
Philippines by personal
service
as
under
section
6;
or
by
publication
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, or in
any other manner the
court
may
deem
sufficient. 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.
The RTC found that since
private respondent was abroad at the
time of the service of summons, she was
a resident who was temporarily out of
the country; thus, service of summons
may be made only by publication.
We do not agree.
In Montefalcon
v.
Vasquez, we said
that
because
Section 16 of Rule 14 uses the
words may and also, it is not
mandatory.
Other
methods
of
service of summons allowed under
the Rules may also be availed of by
the serving officer on a defendantresident who is temporarily out of
the Philippines. Thus, if a resident
defendant is temporarily out of the
country, any of the following modes
of service may be resorted to: (1)
substituted service set forth in
section 7 ( formerly Section 8), Rule
14; (2) personal service outside the
country, with leave of court; (3)
service by publication, also with
leave of court; or (4) in any other
manner
the
court
may
deem
sufficient.
In Montalban v. Maximo, we
held that substituted service of
summons under the present Section
7, Rule 14 of the Rules of Court in a
suit in personam against residents
of
the Philippines temporarily

absent therefrom is the normal

method of service of summons that
will confer jurisdiction on the court
over such defendant. In the same
case, we expounded on the rationale in
providing for substituted service as the
normal mode of service for residents
temporarily out of the Philippines.
x
x
x A
man
temporarily
absent
from
this
country
leaves a definite place
of
residence,
a
dwelling
where
he
lives, a local base, so
to speak, to which any
inquiry about him may
be directed and where
he is bound to return.
Where
one
temporarily absents
himself, he leaves
his affairs in the
hands of one who
may be reasonably
expected to act in
his place and stead;
to do all that is
necessary to protect
his interests; and to
communicate
with
him from time to
time any incident of
importance that may
affect him or his
business
or
his
affairs. It is usual for
such a man to leave at
his home or with his
business
associates
information
as
to
where he may be
contacted in the event
a question that affects
him crops up. If he
does not do what is
expected of him, and a
case comes up in court
against him, he cannot
just raise his voice and
say that he is not
subject
to
the
processes
of
our
courts. He cannot stop
a suit from being filed
against him upon a
claim that he cannot
be summoned at his
dwelling
house
or
residence or his office
or regular place of
business.
Not that he
cannot
be
reached
within a reasonable
time to enable him to
contest a suit against
him. There are now
advanced facilities of
communication. Long

distance
telephone
calls and cablegrams
make it easy for one
he
left
behind
to
communicate
with
him.
Considering
that
private
respondent was temporarily out of the
country, the summons and complaint
may be validly served on her through
substituted service under Section 7, Rule
14 of the Rules of Court which reads:
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
defendants
residence with some
person of suitable age
and discretion then
residing therein, or (b)
by leaving the copies
at defendants office or
regular
place
of
business with some
competent person in
charge thereof.
We have held that a dwelling,
house or residence refers to the
place where the person named in
the summons is living at the time
when the service is made, even
though he may be temporarily out
of the country at the time. It is, thus,
the service of the summons intended for
the defendant that must be left with the
person of suitable age and discretion
residing
in
the
house
of
the
defendant. Compliance with the rules
regarding the service of summons is as
important as the issue of due process as
that of jurisdiction.
Section 7 also designates the
persons with whom copies of the
process may be left. The rule
presupposes that such a relation of
confidence
exists
between
the
person with whom the copy is left
and the defendant and, therefore,
assumes that such person will
deliver the process to defendant or
in some way give him notice
thereof.
In this case, the Sheriff's Return
stated that private respondent was out
of the country; thus, the service of
summons was made at her residence
with her husband, Alfredo P. Agudo,
acknowledging receipt thereof. Alfredo
was presumably of suitable age and

discretion, who was residing in that place

and, therefore, was competent to receive
the summons on private respondent's
behalf.
Notably, private respondent
makes no issue as to the fact that
the place where the summons was
served was her residence, though
she was temporarily out of the
country at that time, and that
Alfredo is her husband. In fact, in
the notice of appearance and
motion for extension of time to file
answer
submitted
by
private
respondent's counsel, he confirmed
the Sheriff's Return by stating that
private respondent was out of the
country and that his service was
engaged
by
respondent's
husband. In his motion for another
extension of time to file answer,
private respondent's counsel stated
that a draft of the answer had
already been prepared, which would
be submitted to private respondent,
who
was
in
Ireland
for
her
clarification
and/or
verification
before the Philippine Consulate
there. These statements establish
the fact that private respondent had
knowledge of the case filed against
her, and that her husband had told
her about the case as Alfredo even
engaged
the
services
of
her
counsel.
In
addition,
we
agree
with
petitioner that the RTC had indeed
acquired
jurisdiction
over
the
person of private respondent when
the latter's counsel entered his
appearance on private respondent's
behalf, without qualification and
without questioning the propriety of
the service of summons, and even
filed two Motions for Extension of
Time to File Answer. In effect,
private
respondent,
through
counsel, had already invoked the
RTCs jurisdiction over her person
by praying that the motions for
extension of time to file answer be
granted. We have held that the
filing of motions seeking affirmative
relief, such as, to admit answer, for
additional time to file answer, for
reconsideration
of
a
default
judgment, and to lift order of
default
with
motion
for
reconsideration,
are
considered
voluntary
submission
to
the
jurisdiction
of
the
court. When
private respondent earlier invoked the
jurisdiction of the RTC to secure
affirmative relief in her motions for
additional time to file answer, she
voluntarily
submitted
to
the
jurisdiction of the RTC and is
thereby estopped from asserting
otherwise.

Considering the foregoing, we find

that the RTC committed a grave abuse of
discretion amounting to excess of
jurisdiction in issuing its assailed Orders.
NOTE:
It would seem that the principle adhered to for a
long time since Citizens Surety vs. Herrera is no
longer binding upon plaintiffs. They can ignore the
requirement of prior attachment of personal
properties of the defendant before availing of a
publication of summons to enable a court to acquire
jurisdiction over the person of the defendant. Read
over Sections 14, 15 and 16, correlating them with
the cases of Palma vs. Sanchez. There is really no
need for an action in personam to be converted to
an action in rem or quasi in rem, via a writ of
preliminary attachment, in order for a court to be
able to acquire jurisdiction over the person of the
defendant.
What is the advantage of using these principle in
Citizens Surety vs. Herrera? (Actions in rem that is
in personam at the same time)
The advantage is that if the plaintiff first moves for
preliminary attachment over properties of the defendant
and then later ask the court for publication of summons,
when compared to just the plaintiff asking for publication
of summons without asking for preliminary attachment, is
that there is a security enjoyed by the plaintiff when the
property of the defendant is attached through a writ
preliminary attachment. If you read Rule 57, that is
precisely the purpose of preliminary attachment over the
property of the defendant, to provide security to the
applicant to whatever judgment rendered in favor of the
plaintiff.
But the present tendency of the court is not to
apply anymore the principle in Citizens Surety vs.
Herrera insofar as publication of summons is
concerned. There is no more need for converting an
action in personam to an action in rem or quasi-in
rem.
If there is a preliminary attachment of a property
belonging to the defendant, the act of actual attachment
of the property is the act which converts the case from in
personam to that of in rem or quasi-in rem. This is because
the property is now within the jurisdiction of the trial court.
MOTIONS
Q: What is a motion?
A: It is an application for relief other than by a pleading.
(Sec. 1, Rule 15)
Q: What shall the notice of hearing specify?
A: It shall specify the time and date of the hearing which
shall not be later than ten (10) days after the filing of the
motion and it shall be addressed to the parties concerned
(Sec. 5, Rule 15).
Note: Failure to comply with the mandatory requirements
of the rule regarding notice of hearing is pro forma and
presents no question which merits the attention of the
court (Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003).
Q: What is the rule on hearing of motions?
A:
GR: Every written motion shall be set for hearing by the
applicant.

XPN: Motions which the court may act upon without

prejudicing the rights of the adverse party (Sec. 4, Rule
15).
General Rule: If not made in open court, it must be
reduced into writing. It must satisfy all the requirements in
the Rules concerning motions.
Requirements of a written motion:
1. service upon the adverse party
2. must be set for hearing
Notice of Hearing is usually addressed by lawyers to the
branch clerk of court. This is an error. The notice of hearing
MUST be addressed to the adverse party or the counsel
thereof. Remember that the SC has emphasized that a
motion that does not comply with the requirements set
down in the Rules shall be treated as a scrap of paper.
OMNIBUS MOTION RULE
Omnibus Motion Rule all objections that are not
included are deemed waived if not set up in the
motion to dismiss.
Correlate with:
Non-waivable defenses: Res judicata; Prescription; Lack of
jurisdiction over the subject matter and Litis pendencia
In any civil proceeding, if there is an objection to any claim
contained in the motion or in another pleading, and these
objections are not set up in a motion or in another
pleading, these objections are deemed waived, except for
non-waivable defenses.
MOTION TO DISMISS
Motion to dismiss is prohibited in certain proceedings, as
set down by the Rules or based on circulars issued by the
SC.
Summary Procedure and some special proceedings
prohibit the filing of a motion to dismiss. But in regular
procedure, a motion to dismiss is allowed in civil cases.
Motion to Dismiss under Rule 16 should be filed as a
matter of general practice before an answer can be filed
by defendant.
Can the defendant properly file an answer and a
motion to dismiss at the same time?
Under Rule 16, it is allowed that the grounds for a
motion to dismiss to be simply incorporated in the
answer. Under Rule 16, if the defendant does submit his
responsive pleading right away, he can incorporate in his
answer the grounds in Rule as affirmative defenses. If a
defendant files his answer with affirmative defenses
enumerated under Rule 16 as grounds to dismiss, he being
allowed to do that, once the answer is filed with the court,
the defendant can ask to court to conduct a preliminary
hearing on his affirmative defenses. The court can grant it
as if the defendant has filed previously a motion to
dismiss.
If the defenses are those that are non-waivable grounds for
dismissal, it is possible for the defendant to file motions to
dismiss one after another without violation of the Omnibus
Motion Rule.
Theoretically:
If the first motion to dismiss based on prescription is
denied, the defendant is allowed to file a second motion to
dismiss based on litis pendencia. If that is again denied,
the defendant files his 3rd motion dismiss founded on lack
of jurisdiction over the person of the defendant. If it is

again denied, the defendant can file a motion to dismiss

based on res judicata.
Because of the application of these non-waivable
defenses, it is conceivable and it is proper for the
defendant to successively file motions to dismiss
containing these non-waivable defenses. A motion to
dismiss founded on a waivable defense shall preclude the
filing of another motion to dismiss based on other grounds
under Rule 16, except those non-waivable defenses. There
will be waiver of the other grounds because of the
Omnibus Motion Rule, but not those defenses which are
non-waivable.
In the resolution of a motion to dismiss, Rule 16 gives to
the court three choices: grant the motion, deny the
motion, or order an amendment to the pleading.
Currently, there are now 4 options for the court to resolve
a motion to dismiss. The fourth option is by virtue of the
law on alternative disputes resolution.
4 options of the court:
1. grant
2. deny
3. order the amendment of the pleadings
4. refer the matter to conciliation or mediation or
arbitration, as the case may be, and suspend
further hearings
Is there any procedural advantage if the defendant
simply files an answer setting up as affirmative
defenses those enumerated in Rule 16?
Yes there is. If the defendant files an answer with
affirmative defenses based on grounds under Rule 16, and
after preliminary hearing of the affirmative defenses, the
court orders the dismissal of the case, the defendant will
be given an opportunity to recover his claim for damages
based on any counterclaims (compulsory or permissive) or
whatever relief he may have sought in his answer (answer
with affirmative defenses, permissive and compulsory
counterclaims, and other relief). You will note that in Rule
16, the dismissal will not affect any counterclaim or crossclaim or any other claim submitted by the defendant in his
answer. The defendant cannot file a Motion to Dismiss with
a counterclaim or cross-claim or any other claim submitted
by the defendant before the court. A motion to dismiss is
not a pleading. It is only in an answer where we can have a
cross-claim against a co-defendant or counterclaim against
the plaintiff.
In a motion to dismiss, we can use of any grounds under
Rule 16. But if the motion is found on a ground that is
waivable, the other grounds not cited are deemed waived,
with exception to those non-waivable grounds. Thus, if the
defendant filed a motion to dismiss solely on the ground of
lack of jurisdiction over the person of the defendant, which
is a waivable defense, and the motion was denied, the
defendant is precluded from filing a motion to dismiss
based on the ground of improper venue. What will be
allowed would be the succeeding motions to dismiss are
grounded on non-waivable defenses.
With respect to lack of jurisdiction over the subject matter
or over the nature of the case, this ground is dealt with in
Tijam vs. Sibonghanoy.
TIJAM vs. SIBONGHANOY Digest

January 08, 1963 5 days after the

surety received notice of the decision, it
filed a motion asking for extension of
time within which to file a motion for
reconsideration. Appellees action was
filed in the Court of First Instance of
Cebu, July 19, 1948 for the recovery of
1,908.00 Pesos.
RA 296, Judiciary Act 1948 Section 88
of which placed within the jurisdiction of
MTC all civil actions where the value of
the subject matter or the amount of
demand does not go beyond 2,000
Pesos, exclusive of interest and costs
that the Court of First Instance of Cebu
has no Jurisdiction.
The Court is in Opinion that Surety is
now barred by laches from invoking the
plea at this late hour for the purpose of
annulling everything done heretofore in
the case with its active participation.
Definition of Laches:
Failure of neglect, for an unreasonable
and unexplained length of time, to do
that which, by exercising due diligence,
could or should have been earlier, it is
negligence or commission to assert a
right within a reasonable time,
warranting a presumption that the party
entitle to assert it has abandoned it or
declines to assert it.
Tijam vs. Sibonghanoy
In this case, the trial court did not have jurisdiction over
the subject matter of the case, but the defendant kept
silent about the issue of absence of jurisdiction, and
allowed the case to proceed up to the CA. Upon receipt of
the adverse decision in the CA, the appellee challenged
the validity of the decision of the RTC and the CA, stating
that the court had lacked jurisdiction from the start. SC
held that there was estoppel by laches. The case
has been pending for 15 years up to the appeal, the
defendant appearing in the case for all those years.
SC said that although the decision may be
challenged by lack of jurisdiction over the subject
matter even for the first time on appeal, the
defendant is guilty of estoppel by laches, by his
negligence to raise this issue as promptly as
possible. He can no longer challenge the decision of
the court.
In Rule 9, there is no exception at all to nonwaivable defenses, including lack of jurisdiction
over the subject matter.
In Rule 47 (Annulment of Judgment), the Tijam
Doctrine was incorporated therein. Lack of
jurisdiction over the subject matter is excepted by
estoppel by laches as a defense.
Rule 47 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.

This is an application of the Tijam Doctrine in our present

Rules. So, we still have laches or estoppel as a defense
against the non-waivable defense of lack of jurisdiction
over the subject matter.
In other cases, the SC also used another kind of estoppel
in order to bar the party from raising the issue of
jurisdiction, although the trial court REALLY DID NOT HAVE
jurisdiction over the subject matter.
Soliven vs. Fast Forms 2004(Estoppel in pais is a good
defense although there is lack of jurisdiction over the
subject matter)
The aggregate sum to be recovered was 800k. A
complaint for collection of money was filed in the RTC. The
amount to be actually collected was less than the
jurisdictional amount of the RTC based on BP 129 (exclude
interest, damages, cost and Attorneys fees). There was an
answer by defendant with a counterclaim. The court,
unaware it lacked jurisdiction over the case, as nobody
brought it up. The court rendered a judgment in favor of
the plaintiff. The counsel for the defendant found that the
court had no jurisdiction. The defendant filed motion for
reconsideration and raised lack of jurisdiction, praying for
dismissal of the case. RTC denied the motion, as the
defendant was in estoppel to challenge the courts
jurisdiction just because an adverse result was had. It
reached the SC. SC held that the defendant cannot
challenge any more the jurisdiction of the court. SC stated
that there is estoppel in pais, the act of the defendant in
actively participating in the case and seeking affirmative
relief via a counterclaim renders defendant in estoppel to
contest the jurisdiction of the RTC, although the court may
not really have jurisdiction over the subject matter.
Facts: Marie Antoinette R. Soliven,
petitioner, filed a complaint for sum of
money with damages against Fast-Forms
Philippines, Inc., respondent. The
complaint alleges that respondent,
through its president Dr. Eduardo
Escobar, obtained a loan from petitioner
in the amount of PhP 170,000.00
payable within a period of 21 days, with
an interest of 3%. On the same day,
respondent issued a post-dated check in
favor of petitioner in the amount of PhP
175,000.00. About three weeks later,
respondent, through Dr. Escobar, advised
petitioner not to deposit the postdated
check as the account from where it was
drawn has insufficient funds. Instead,
respondent proposed to petitioner that
the PhP 175,000.00 be rolled-over,
with a monthly interest of 5% which
petitioner agreed. Subsequently,
respondent issued several checks in the
total of PhP 76,250.00 in favor of
petitioner as payment for interests
corresponding to the months of June,
August, September, October and
December. Later, despite petitioners
repeated demands, respondent refused
to pay its principal obligation and
interests due.
Respondent, in its answer with
counterclaim, denied that it obtained a
loan from petitioner, and that it did not
authorize its then president, Dr. Eduardo

Escobar, to secure any loan from

petitioner or issue various checks as
payment for interests.
After trial on the merits, the court a quo
rendered a decision in favor of petitioner.
Respondent then filed a motion for
reconsideration questioning for the first
time the trial courts jurisdiction. It
alleged that since the amount of
petitioners principal demand (PhP
195,155.00) does not exceed PhP
200,000.00, the complaint should have
been filed with the MTC pursuant to R.A.
7691.
Issue: Whether the trial court has
jurisdiction over the case
Held: YES. While it is true that
jurisdiction may be raised at any
time, this rule presupposes that
estoppel has not supervened. The
Court has constantly upheld the
doctrine that while jurisdiction may
be assailed at any stage, a litigants
participation in all stages of the
case before the trial court, including
the invocation of its authority in
asking for affirmative relief, bars
such party from challenging the
courts jurisdiction. A party cannot
invoke the jurisdiction of a court to
secure affirmative relief against his
opponent and after obtaining or failing to
obtain such relief, repudiate or question
that same jurisdiction. The Court
frowns upon the undesirable
practice of a party participating in
the proceedings and submitting his
case for decision and then accepting
judgment, only if favorable, and
attacking it for lack of jurisdiction,
when adverse.
Is the Soliven case applicable to criminal cases?
No.
Figueroa vs. People 2009
The accused was arraigned for reckless imprudence
resulting to homicide. This was filed in the RTC instead of
MTC. The prosecutor was not aware of the RTCs lack of
jurisdiction. The counsel of the accused also assumed the
same. Nobody raised the issue of jurisdiction in the RTC, so
the case went on. Trial was had, where both parties
presented their respective evidence. The accused was
found guilty. On appeal, the accused interposed the
defense of lack of jurisdiction. The solicitor general cited
Soliven vs. Fast Forms as defense. Active participation
means that the litigant is in estoppel from challenging the
validity of the proceedings. The CA agreed with the
solicitor general.
SC held that the judgment is void as estoppel in
pais is inapplicable in a criminal case. Lack of
jurisdiction in a criminal case can be cited as a
defense even on appeal. The rights of the accused
being at stake, estoppel in pais is inapplicable.
When is a litigant estopped by
laches from assailing the

jurisdiction of a tribunal? This is the

paramount issue raised in this petition
for review of the February 28, 2001
Decision of the Court of Appeals (CA) in
CA-G.R. CR No. 22697.
*******
On July 8, 1994, an information for
reckless imprudence resulting in
homicide was filed against the petitioner
before the Regional Trial Court (RTC) of
Bulacan, Branch 18. The case was
docketed as Criminal Case No. 2235-M94. Trial on the merits ensued and on
August 19, 1998, the trial court
convicted the petitioner as charged. In
his appeal before the CA, the petitioner
questioned, among others, for the first
time, the trial courts jurisdiction.
The appellate court, however, in the
challenged decision, considered the
petitioner to have actively participated in
the trial and to have belatedly attacked
the jurisdiction of the RTC; thus, he was
already estopped by laches from
asserting the trial courts lack of
jurisdiction. Finding no other ground to
reverse the trial courts decision, the CA
affirmed the petitioners conviction but
modified the penalty imposed and the
damages awarded.
**********
The ruling in People v. Regalario that was
based on the landmark doctrine
enunciated in Tijam v. Sibonghanoy on
the matter of jurisdiction by estoppel is
the exception rather than the rule.
Estoppel by laches may be invoked
to bar the issue of lack of
jurisdiction only in cases in which
the factual milieu is analogous to
that in the cited case. In such
controversies, laches should have
been clearly present; that is, lack of
jurisdiction must have been raised
so belatedly as to warrant the
presumption that the party entitled
to assert it had abandoned or
declined to assert it.
In Sibonghanoy, the defense of lack of
jurisdiction was raised for the first time
in a motion to dismiss filed by the Surety
almost 15 years after the questioned
ruling had been rendered. At several
stages of the proceedings, in the court a
quo as well as in the Court of Appeals,
the Surety invoked the jurisdiction of the
said courts to obtain affirmative relief
and submitted its case for final
adjudication on the merits. It was only
when the adverse decision was rendered
by the Court of Appeals that it finally
woke up to raise the question of
jurisdiction.
Clearly, the factual settings
attendant in Sibonghanoy are not
present in the case at bar. Petitioner

Atty. Regalado, after the receipt of

the Court of Appeals resolution
finding her guilty of contempt,
promptly filed a Motion for
Reconsideration assailing the said
courts jurisdiction based on
procedural infirmity in initiating the
action. Her compliance with the
appellate courts directive to show
cause why she should not be cited
for contempt and filing a single
piece of pleading to that effect
could not be considered as an active
participation in the judicial
proceedings so as to take the case
within the milieu of Sibonghanoy.
Rather, it is the natural fear to
disobey the mandate of the court
that could lead to dire
consequences that impelled her to
comply.
The Court, thus, wavered on when to
apply the exceptional circumstance in
Sibonghanoy and on when to apply the
general rule enunciated as early as in De
La Santa and expounded at length in
Calimlim. The general rule should,
however, be, as it has always been, that
the issue of jurisdiction may be raised at
any stage of the proceedings, even on
appeal, and is not lost by waiver or by
estoppel. Estoppel by laches, to bar a
litigant from asserting the courts
absence or lack of jurisdiction, only
supervenes in exceptional cases
similar to the factual milieu of Tijam
v. Sibonghanoy. Indeed, the fact
that a person attempts to invoke
unauthorized jurisdiction of a court
does not estop him from thereafter
challenging its jurisdiction over the
subject matter, since such
jurisdiction must arise by law and
not by mere consent of the parties.
This is especially true where the
person seeking to invoke
unauthorized jurisdiction of the
court does not thereby secure any
advantage or the adverse party
does not suffer any harm.
Applying the said doctrine to the
instant case, the petitioner is in no
way estopped by laches in assailing
the jurisdiction of the RTC,
considering that he raised the lack
thereof in his appeal before the
appellate court. At that time, no
considerable period had yet elapsed
for laches to attach. True, delay
alone, though unreasonable, will not
sustain the defense of "estoppel by
laches" unless it further appears
that the party, knowing his rights,
has not sought to enforce them until
the condition of the party pleading
laches has in good faith become so
changed that he cannot be restored
to his former state, if the rights be
then enforced, due to loss of
evidence, change of title,

intervention of equities, and other

causes. In applying the principle of
estoppel by laches in the exceptional
case of Sibonghanoy, the Court therein
considered the patent and revolting
inequity and unfairness of having the
judgment creditors go up their Calvary
once more after more or less 15 years.
The same, however, does not obtain in
the instant case.
We note at this point that estoppel,
being in the nature of a forfeiture,
is not favored by law. It is to be
applied rarelyonly from necessity,
and only in extraordinary
circumstances. The doctrine must
be applied with great care and the
equity must be strong in its favor.
When misapplied, the doctrine of
estoppel may be a most effective
weapon for the accomplishment of
injustice. Moreover, a judgment
rendered without jurisdiction over
the subject matter is void. Hence,
the Revised Rules of Court provides
for remedies in attacking judgments
rendered by courts or tribunals that
have no jurisdiction over the
concerned cases. No laches will
even attach when the judgment is
null and void for want of
jurisdiction. As we have stated in Heirs
of Julian Dela Cruz and Leonora Talaro v.
Heirs of Alberto Cruz,
It is axiomatic that the
jurisdiction of a
tribunal, including a
quasi-judicial officer or
government agency,
over the nature and
subject matter of a
petition or complaint is
determined by the
material allegations
therein and the
character of the relief
prayed for, irrespective
of whether the
petitioner or
complainant is entitled
to any or all such
reliefs. Jurisdiction over
the nature and subject
matter of an action is
conferred by the
Constitution and the
law, and not by the
consent or waiver of
the parties where the
court otherwise would
have no jurisdiction
over the nature or
subject matter of the
action. Nor can it be
acquired through, or
waived by, any act or
omission of the parties.
Moreover, estoppel
does not apply to
confer jurisdiction

to a tribunal that
has none over the
cause of action. x x x
Indeed, the jurisdiction of the court
or tribunal is not affected by the
defenses or theories set up by the
defendant or respondent in his
answer or motion to dismiss.
Jurisdiction should be determined
by considering not only the status
or the relationship of the parties but
also the nature of the issues or
questions that is the subject of the
controversy. x x x x The proceedings
before a court or tribunal without
jurisdiction, including its decision,
are null and void, hence, susceptible
to direct and collateral attacks.
Note from Dean Jara:
If you are confronted with a problem on lack of
jurisdiction in a civil case, apply Soliven case. If it is
a criminal case, adopt Figueroa.
NAPOCOR vs. Province of Quezon 2010 reiterated the
validity of Soliven in civil cases.
The NPC is estopped from
questioning the CBAAs jurisdiction
The assailed CTA en
banc decision brushed aside the
NPCs sin perjuicio arguments by
declaring that:
The court finds merit in [NPCs]
claim that the Order of the LBAA of
the Province of Quezon is a sin
perjuicio decision. A perusal thereof
shows that the assailed Order does
not contain findings of facts in
support of the dismissal of the
case. It merely stated a finding of merit
in the contention of
the Municipality of Pagbilao xxx.
However, on appeal before
the CBAA, [NPC] assigned several
errors, both in fact and in law,
pertaining to the LBAAs decision.
Thus, petitioner is bound by the
appellate jurisdiction of the CBAA
under the principle of equitable
estoppel. In this regard, [NPC] is in
no position to question the
appellate jurisdiction of the CBAA as
it is the same party which sought its
jurisdiction and participated in the
proceedings therein. [Emphasis
supplied.]
We agree that the NPC can no
longer divest the CBAA of the power
to decide the appeal after invoking
and submitting itself to the boards
jurisdiction. We note that even the
NPC itself found nothing
objectionable in the LBAAs sin
perjuicio decision when it filed its
appeal before the CBAA; the NPC
did not cite this ground as basis for
its appeal. What it cited were grounds

that went into the merits of its case. In

fact, its appeal contained no prayer for
the remand of the case to the LBAA.
A basic jurisdictional rule,
essentially based on fairness, is that a
party cannot invoke a courts
jurisdiction to secure affirmative
relief and, after failing to obtain the
requested relief, repudiate or
question that same
jurisdiction. Moreover, a remand
would be unnecessary, as we find the
CBAAs and the CTA en bancs denial of
NPCs claims entirely in accord with the
law and with jurisprudence.
The defendant has a problem when a court issues a
service of summons in violation of Rule 14. The
defendant must file a Motion to Dismiss on ground
of lack of jurisdiction over person of the defendant.
If he does file such motion, does not the defendant
admit that the court has jurisdiction over his
person?
No. The filing of a motion to dismiss on that ground is the
only remedy available to him to tell the court that the
court had not acquired jurisdiction over his person. In court
cases, what the defendant can do is to tell that court right
away that his appearance before the court in filing the
motion to dismiss should be considered as a special
appearance only for the purpose of telling the court that
the court has no jurisdiction over his person.
Problem: Defendant must file a motion to tell the court of
this defense.
Solution: Inform the court that his appearance is a
Special appearance only.
This Special Appearance Rule stems from another principle
in the past that when a defendant files a motion to dismiss
on ground that the court did not acquire jurisdiction over
his person, when he adds another ground found in Rule 16
by virtue of the application of the Omnibus Motion Rule,
the decisions of the SC then was then when another
ground is added in the motion to dismiss aside from lack of
jurisdiction over the person of the defendant, he waives
the ground of lack of jurisdiction over his person. This has
been changed in the present Rules.
Under Omnibus Motion Rule, defendant who files motion to
dismiss plus any other ground in rule 16 is NOW deemed
not to be a person over whom the court did not acquire
jurisdiction over his person. A defendant is free to file a
motion to dismiss, citing as one of his grounds lack of
jurisdiction over his person, he is not deemed to have
waived his argument that the court has not gained
jurisdiction over his person.
Let us say that the defendant who claims that the court
has not acquired jurisdiction over his person does not
respond to the summons, as filing of an answer is a waiver
of his defense of lack of jurisdiction over his person. He
received a copy of the order of the court, and then
following the Rules, the defaulting defendant files a motion
to lift the order of default. The filing of a motion to lift the
order of default is acceptance by the defendant of
jurisdiction of the court over his person. In another
instance, the defendant receives the copy of the judgment
of default, the defendant files a motion for reconsideration
and a motion for new trial. The motion for reconsideration
or new trial is a submission of the defendant to the

jurisdiction of the court over his person. This is the reason

why in Palma vs. Galvez, the defendant claims that the
court did not acquire jurisdiction over his person, and filed
a motion for new trial, he must qualify the motion must not
be treated as a voluntary submission of the defendant to
the jurisdiction of the court over his person. He must
always qualify his motion with that ground.

evidence ONLY if the question that will be raised is a

factual issue like the obligation has been paid, waived or
otherwise extinguished. Thus, in a motion to dismiss on
the ground of lack of jurisdiction over the subject matter,
the court will resolve the motion based on the complaint
itself. The court can easily resolve the said motion based
on the allegations in the pleading itself.

FAILURE TO STATE A CAUSE OF ACTION

SC in recent cases has emphasize the difference of
lack of a cause of action and failure to state a cause
of action:
Failure to state cause
Lack of cause of action
of action
Insufficiency in the
Failure to prove or
allegations of the
establish by evidence
complaint
ones stated cause of
action
As a ground for dismissal
Raised in a motion to
Raised in a demurrer to
dismiss under Rule 16
evidence under Rule 33
before a responsive
after the plaintiff has
pleading is filed
rested his case
Determination
Determined only from the
Resolved only on the basis
allegations of the pleading
of the evidence he has
and not from evidentiary
presented in support of his
matters
claim

Based on the above problem, if the dismissal

became final and executory, what can the plaintiff
do?
Under Sec. 5 Rule 16, the rule makes a distinction of an
Order of Dismissal under Rule 16 under letters f, h and i (in
addition to laches under the NCC) compared to other
grounds, the dismissal is subject to the right of appeal.
The remedy of the plaintiff is to appeal the order of
dismissal.

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

dismiss because of immaturity. It assumes that the plaintiff
really has a cause of action, and the fault will be due to the
lawyer who crafted the complaint.
If there is an accion reinvindicatoria filed in the RTC,
but there is no stated assessed value of the
property involved, then the defendant may file
motion to dismiss for lack of jurisdiction for failure
to state a cause of action. A hearing was had. The
plaintiffs attorney failed to see what the motion
was about. The court will resolve the motion purely
on the allegations in the complaint. (There is no
need to present evidence in this case, as no factual
matter is in issue.) The court granted the motion.
The plaintiffs lawyer received the order of
dismissal, and then he finally understood what was
wrong with his complaint. Can the lawyer for the
plaintiff amend his complaint?
Yes. The plaintiff can still amend his complaint in order to
incorporate the allegation the assessed value of the
property. This is because the order of dismissal will not
be entered until after the lapse of 15 days, and the
plaintiff can still amend and rectify the error
committed by inserting the assessed value of the
property. He can do so as a matter of right,
because, according to SC, a motion to dismiss is not
a responsive pleading, and as long as the
amendment is the first amendment, under Rule 10,
it is an amendment is a matter of right. The
defendant will have to file an answer to the
amended complaint.
Note:
In a hearing of a motion to dismiss grounded to lack of
jurisdiction over the subject matter, the court will not allow
presentation of evidence by the defendant. The reason is
because lack of jurisdiction over the subject matter is a
purely legal question and the only evidence to be taken
into account is the complaint itself, applying the principle
that the court acquires jurisdiction, under BP 129, based
on the allegations contained in the complaint. In the
hearing of a motion, the court will allow presentation of

If the case was dismissed on grounds not on letters f, h

and I, it means that we should not treat Rule 16 alone, but
consult other Rules to arrive at the correct remedy. We
consult Sec. 1 under Rule 41. The dismissal is without
prejudice. Therefore, the dismissal should not be
appealed.
Rule 16, SECTION 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 plaintiffs
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.
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.

Grounds recognized under the law that

will render dismissal with prejudice
under Sec. 5, Rule 16:
Rule 16, f. Res judicata/statute of
limitations
Rule 16, h. paid, waived,
abandoned, or otherwise
extinguished
Rule 16, i. unenforceable under
statute of frauds
(NCC) laches (Should be included here.
Dean Jara)
In analyzing Rule 16, 17, 18 and 33, we should
always read these Rules in relation with Section 1
of Rule 41.
Rule 41, SECTION 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.
(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.
(i) Laches and any other means
recognized under the NCC (Dean
Jara)
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.
Why is it necessary to relate a motion to
dismiss under Rule 16 with Rule 41, which is
a rule on appeal?
If you read Section 1 of Rule 41, there is an
enumeration of orders where no appeal can be
had, although they are final in character.
In the enumeration under Section 1 of Rule 41, the last
item is closely related to Rule 16, that it is a dismissal is
without prejudice. In Rule 16, what the Rule tells us is that

under items f, h and i of Sec. 5 Rule 16 are subject to

appeal. That means the dismissal is with prejudice as the
remedy thereof is to appeal.
But when the dismissal on other grounds other than items
f, h and i under Sec. 5 Rule 16, they are without prejudice.
And Section 1(h)Rule 41 tells the plaintiff that one of the
recourses available to him when the dismissal is without
prejudice. Appeal is not a remedy available to him.
The court issued an order of dismissal. What should
the plaintiff do?
The remedy available to the plaintiff is found under Sec. 1
of rule 41 in order to challenge the order of dismissal that
are still appealable based on Sections 1 and 5 of Rule 16
(those not under items f, h and i). Since an order of
dismissal is not appealable, then the plaintiff must file an
appropriate petition under Rule 65. The plaintiff may file a
petition for certiorari or prohibition with the CA or SC as
the case may be.
Why do we allow the plaintiff to file a petition under
Rule 65 challenging the dismissal of his complaint
for lack of jurisdiction, although the order of
dismissal has already been entered after the lapse
of 15 day period?
Because under Rule 65, the period for filing the petition
under this rule is 60 days, not 15 days. So if the 15-day
period for entry of judgment has lapsed, the plaintiff has
45 days more to file a petition under Rule 65.
But because the dismissal is without prejudice, the plaintiff
can forget about going to a higher court. Because if the
dismissal of his complaint was without prejudice, he has
another alternative: he can just file a new complaint in the
same court involving the same party with the complaint
impleading the necessary allegations.
If we compare this dismissal under Rule 16 based on lack
of jurisdiction on the ground of f, h and i, we can
understand why they are not appealable. The order of
dismissal based on these items will be a judgment on the
merits. If the claim of the plaintiff alleged in the complaint
has really been paid, waived, abandoned or otherwise
extinguished as provided in the NCC, then it would seem
that he really has no claim at all with the defendant, and
thus the complaint is dismissed with prejudice. If the
allegation of the defendant is that the claim has been paid,
waived, abandoned or otherwise extinguished, that motion
presents a factual issue. During the hearing of that motion,
the defendant will be given an opportunity to prove that
the claim has really been paid, waived, abandoned or
otherwise extinguished. The hearing will be as if the court
was actually trying the case, the defendant being allowed
to present witnesses, or present evidence of his allegation
that the claim has been paid, waived, abandoned or
otherwise extinguished based on grounds recognized
under substantive law(enumerated in the NCC).
In fact, the court said that the results enumerated under
Section 16 is not exclusive. We should include laches.
Under the NCC, laches could extinguish an obligation.
Remember that procedurally, in a hearing on a motion to
dismiss based on a question of law to a motion to dismiss
founded on factual issue. If founded on a legal issue, the
court will not allow presentation of evidence. The court will
simply read the allegations in the complaint. If the issue is
factual, the court will be forced to conduct a hearing for
presentation of evidence therein.

Let us say that the defendants motion is founded

on letter h. During the hearing, the defendant
presents evidence. Then, the motion was submitted
for resolution. The court denies the motion. What is
the next move for the defendant if the motion is
denied?
The defendant should file an answer during the remaining
period to file, which should not be less than 5 days from
the receipt of the order of denial.
The defendant files an answer. Can he incorporate
the ground in the motion to dismiss that was denied
as an affirmative defense?
Yes, the defendant is allowed to do that. Under our rules, if
there are objections or grounds not raised in the
PLEADINGS, these grounds are deemed waived.
Can the defendant, after filing his answer with his
affirmative defense move for a preliminary hearing
on his affirmative defense?
No, the court will not allow such a hearing anymore as
there had been a prior hearing for the same issue in the
prior motion to dismiss that was denied. Thus, although a
defendant is allowed to use his ground under Rule 16 in a
motion to dismiss that was denied as an affirmative
defense, he is not allowed to have another preliminary
hearing as the said defenses had been already subject to a
hearing when the said defenses were contained as a
ground for dismissal in the prior motion that was denied.
So, during the trial of the case, the defendant may be able
to present to the court additional evidence in order to
prove such ground under Rule 16 that he has relied upon.
RULE 41 SEC. 1 IN RELATION TO RULE 16 (DISMISSAL
WITH OR WITHOUT PREJUDICE)
Determine whether his dismissal is appropriate for
remedy under Rule 65 or an appeal.
Any dismissal by a court is a final order. But what matters
is to find out if the dismissal is with or without prejudice so
as to ascertain the remedy available. In dismissals under
Rule 16, if the grounds are letter f, h or i, then the
dismissal is with prejudice. The remedy of the plaintiff is to
appeal from the judgment.
Supposing the plaintiff commits an error in ascertaining
the dismissal, the dismissal actually being that with
prejudice, and plaintiff opts for Rule 65. The judgment
became final after 15 days. 40 days after the judgment for
dismissal was made, he files a petition for certiorari. The
petition for certiorari will be dismissed as the proper
remedy was to appeal. At this time, he cannot appeal
anymore as the time to appeal was 15 days from receipt of
the order of dismissal, it has long expired, and the
judgment has been entered and had become final. Also, he
cannot file another complaint, as the dismissal is with
prejudice.
If a dismissal is found under Rule 17, we follow the same
principle. Rule 17 also states about a dismissal with and
without prejudice. We follow the principle of dismissal
under Rule 41 in relation to Rule 16.
A dismissal under Rule 18 (failure to attend pre-trial or to
file pre-trial brief, tantamount to disobedience of court
orders) is with prejudice, and thus plaintiff must appeal.
A dismissal under Rule 33 (judgment on demurrer to
evidence) is a dismissal with prejudice as this is an
adjudication on the merits, and the remedy is to file an
appeal from the order of dismissal.

But if the dismissal is without prejudice, the plaintiff has

not much to worry. He can forget about Rule 41. He can file
a second complaint, but he must make sure it is properly
crafted. If the plaintiff files a second complaint, but it
was again dismissed, there is the probability under Rule
17 Section 1 that it will be a dismissal with prejudice under
the two-dismissal rule. Thus, if a complaint has been
dismissed twice, the second dismissal may operate as an
adjudication of the merits.
Rule 17 SECTION 1. Dismissal upon
notice by plaintiff.A complaint may be
dismissed by the plaintiff by filing a
notice of dismissal at any time before
service of the answer or of a motion for
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.
Does it mean that a second dismissal is ALWAYS a
dismissal with prejudice?
No. The second dismissal will still be without prejudice as
provided for in Rule 17, unless there is a statement of
such dismissal being with prejudice in the notice of
dismissal.
Dismissal under Rule 17, Sections 1, 2 and 3.
Indispensable party has not been impleaded =
Dismissal for failure to state a cause of action.
The theory behind is that a complaint must implead an
indispensable party at all times so as the court can have a
final determination of the case. This will be resolved by the
court under Rule 16, but availing of other modes of curing
the defect aside from dismissing the case. In the resolution
of a motion to dismiss, Rule 16 gives to the court three
choices: grant the motion, deny the motion, or order an
amendment to the pleading.
If an indispensable party has not been impleaded, the
court may simply order the plaintiff to amend his
complaint to include the indispensable party. The plaintiff
can then just file an amended complaint, and then the
case can proceed until the final determination of the case.
If the court ordered the amendment of the
complaint to include the indispensible party, the
plaintiff failed to do so, can the court dismiss the
case?
Yes, the court may do so under Rule 17, and the dismissal
is with prejudice, under Section 3 of Rule 17, for failure to
obey a lawful order of the court. The remedy is to appeal.
Generally, the court is given discretion to state whether a
dismissal is with or without prejudice. But if the dismissal
is not qualified at all, Section 3 of Rule 17 is very clear,
that dismissal is with prejudice. Therefore, the remedy is to
appeal not to file a petition under Rule 65.
Note: Grounds for dismissal under Section 3 of Rule
17:
1. the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint,
2. failure to prosecute his action for an unreasonable
length of time,

3. failure to comply with these Rules,

4. failure to comply with any order of the court
Sections 1, 2 and 3 of Rule 17 provides grounds for
dismissal, and these sections also provides for the
consequences of the grounds of dismissal.
Section 1 Rule 17 provides for a plaintiff to dismiss his own
complaint.
Rule 17 SECTION 1. Dismissal upon
notice by plaintiff.A complaint may
be dismissed by the plaintiff by filing a
notice of dismissal at any time before
service of the answer or of a motion for
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.
If Plaintiff files complaint today. Plaintiff changed
his mind and moved to dismiss the case. The
summons had not been sent. What if the plaintiff
dismissed his own complaint via a motion?
The court will have the discretion whether to grant or deny
the motion.
The plaintiff should not dismiss his case via a motion. The
means for a plaintiff to dismiss his case is provided for
under Section 1, Rule 17.
What if a notice of dismissal was given instead?
The court is left without discretion as to what to do with
the complaint but to dismiss it. Filing of a timely notice of
dismissal will result in the dismissal of the case. The
dismissal is without prejudice, unless plaintiff tells the
court that the notice of dismissal is to be considered an
adjudication on the merits.
The case had been dismissed by the court because
of the plaintiffs notice of dismissal. What if plaintiff
changed his mind after the order of dismissal? What
can he do?
He needs to wait 15 days after the order of dismissal and
ask for revival of the case. No new complaint need be filed,
and no docket fees need be paid again.
Supposing the defendant filed motion to dismiss,
and subsequently the plaintiff filed notice of
dismissal. How can this be resolved?
SC held that the court should confirm the notice of
dismissal by the plaintiff. The plaintiffs notice of dismissal
prevails over the motion to dismiss filed by defendant.
TWO-DISMISSAL RULE
Plaintiff files a collection case for 500k against
defendant. Defendant visits the plaintiff and asked
the plaintiff for the dismissal of the case, promising
payment. Plaintiff acquiesced and files notice of
dismissal. Court dismisses the case. The defendant
failed to pay. Can the plaintiff file another case
against defendant?
Yes, as the case was dismissed without prejudice.
The defendant again approached plaintiff, asking
again for time. Plaintiff again agrees, and files
another notice of dismissal. It is again dismissed.
What will be the effect?
The dismissal is with prejudice this time. If plaintiff files a
case for the same defendant for the same cause as the

defendant again failed to pay, the case will be dismissed

as the second dismissal is one with prejudice, and res
judicata will lie.
What if the defendant files motion to dismiss, but
failed to allege res judicata, can the court proceed
to dismiss?
Yes, the court can do so, even if the defendant failed to
allege it. It is a non-waivable ground of dismissal, and
anytime the court discovers such fact, it will dismiss the
case.
Can the court say in its decision of dismissal that
the second dismissal is without prejudice?
No. The court cannot say the second dismissal is without
prejudice as the law itself dictates that such dismissal is
with prejudice, and the court will have no discretion as to
such dismissal being with or without prejudice. As long as
it is the second dismissal of the same case, it will always
be with prejudice due to res judicata.
When can second dismissal is without prejudice
under Section 1 Rule 17?
There can be two situations where dismissal under
Section 1 Rule 17 is without prejudice?
1.If the first case was filed in a court which lacked
jurisdiction thereto, then the 2nd one was filed in the
competent court and there was a 2nd dismissal, the 2nd
dismissal is not res judicata. The two-dismissal rule will be
considered if the case had been filed in a court competent
to hear it.
2. In Section 2 Rule 17, a plaintiff may dismiss his
complaint via a motion to dismiss. Here, the defendant had
already filed an answer. If the plaintiff seeks to dismiss the
complaint, he must file a motion to dismiss his complaint,
copy furnished to the defendant. The likelihood is that the
defendant will not object. If the defendant does not object,
and the court dismisses the case without prejudice, the
plaintiff is allowed to file another case against the same
defendant based on the same cause.
The defendant, however, is given under Section 2 a chance
to object. The defendant can insist that the dismissal be
one with prejudice. This is allowed as the dismissal is upon
the initiative of the plaintiff, and the defendant is given the
opportunity to object. If you were the defendants counsel,
advise the defendant to object, and state that the
dismissal should be one with prejudice. (I have no
opposition to the dismissal initiated by the plaintiff, as long
as the dismissal is with prejudice.) If that is the tenor of
the dismissal, that is res judicata. It will preclude the
plaintiff from filing another case with the same claims
against the same defendant.
What if the defendant has a compulsory
counterclaim?
There can be a dismissal, but defendant can ask that the
court should continue hearing on the counterclaim set up
by defendant in his answer. In the alternative, the
defendant can ask the court to try the compulsory
counterclaim in a separate case. This is one of the rare
instances wherein a compulsory counterclaim could
survive without the principal action.
The general rule is that if the complaint is dismissed, the
compulsory counterclaim is also dismissed. But not in
Section 2 Rule 17. The complaint could be dismissed, but
the compulsory counterclaim could survive. In fact the
survival of the compulsory counterclaim can even be
threshed out in a separate complaint, wherein there can
be another complaint filed by the former defendant

against the former plaintiff. But this will be an independent

action.
The other alternative is that the plaintiff can ask the court
for the dismissal of the complaint but the court will
continue to exercise jurisdiction so that the court will
continue to try the compulsory counterclaim.
Rule 17, Section 3, Grounds of dismissal
~the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint,
~fails to prosecute his action for an unreasonable length of
time (nolle prosequi),
~fails to comply with these Rules
~ fails to comply with any order of the court,
Under this section, the initiative for the dismissal of the
case comes from the defendant or the court itself.
How can the court order a dismissal under Section 3
of Rule 17 upon the ground that the plaintiff failed
to obey the provisions of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In
Rule 18, it is provided expressly that after the last pleading
is filed, it is the duty of the plaintiff to set his complaint for
pre-trial. He must file a motion to have the complaint set
for pre-trial. When the plaintiff fails to set the hearing for
pre-trial for, let us say, one year ago up to the present,
and there is a finding that the plaintiff failed to do so, the
court can dismiss the case on the ground that the plaintiff
failed to follow the provision set upon in the Rules. This
has been affirmed by the SC. So, if it is the duty of the
plaintiff to set the case for pre-trial, and he neglects to do
so for an unreasonable length of time, there is every
reason for the court to make use of Rule 17, to order the
dismissal of the case under Section 3 thereof. This is a
dismissal with prejudice unless the court makes the
necessary qualification that it is a dismissal without
prejudice.
In most courts (RTC or MTC), if the court calls the case for
trial on the merits, and plaintiff does not appear during
trial, the lawyer for the defendant may ask for the
dismissal under Section 3, Rule 17 for failure of the plaintiff
to prosecute for an unreasonable length of time or for
failure of the plaintiff to appear on the date of the
presentation of his evidence in chief on the complaint. And
usually, the trial court accommodates the defendants
move because if a trial court dismisses the case, that is
one case where the judge can present that he has been
resolving speedily the cases that are assigned to him.
Last year, the SC came out with a resolution concerning
this particular provision in relation to Shimizu vs. Magsalin.
Study this case as it would be a good problem in the bar.
Shimizu vs. Magsalin 2008 revolutionary decision
concerning dismissals with prejudice under Section 17
Order of dismissal with prejudice should comply
with Rule 36 and the Constitution. Otherwise, it
shall be open to collateral and direct attack. (A trial
court should always specify the reasons for a
complaints dismissal so that on appeal, the
reviewing court can readily determine the prima
facie justification for the dismissal)
The Dismissal Order is Void
The nullity of the dismissal
order is patent on its face. It simply
states its conclusion that the case
should
be
dismissed
for non

prosequitur, a legal conclusion, but

does not state the facts on which
this conclusion is based.
Dismissals of actions for failure of
the plaintiff to prosecute is authorized
under Section 3, Rule 17 of the Rules of
Court.
A
plain
examination
of
the December 16, 2003 dismissal order
shows that it is an unqualified order and,
as such, is deemed to be a dismissal
with prejudice. Dismissals of actions
(under Section 3) which do not expressly
state whether they are with or without
prejudice
are
held
to
be
with
prejudice[.] As a prejudicial dismissal,
the December
16,
2003 dismissal order is also deemed to
be a judgment on the merits so that the
petitioners complaint in Civil Case No.
02-488 can no longer be refiled on the
principle of res judicata. Procedurally,
when a complaint is dismissed for failure
to prosecute and the dismissal is
unqualified, the dismissal has the effect
of an adjudication on the merits.
As an adjudication on the
merits, it is imperative that the dismissal
order conform with Section 1, Rule 36 of
the Rules of Court on the writing of valid
judgments and final orders. The rule
states:
RULE 36
Judgments, Final
Orders and Entry
Thereof
Section
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.
The December
16, 2003 dismissal order clearly
violates this rule for its failure to
disclose how and why the petitioner
failed to prosecute its complaint.
Thus, neither the petitioner nor
the reviewing court is able to know
the
particular
facts
that
had
prompted
the
prejudicial
dismissal. Had the petitioner perhaps
failed to appear at a scheduled trial
date? Had it failed to take appropriate
actions for the active prosecution of its
complaint for an unreasonable length of
time? Had it failed to comply with the

rules or any order of the trial court? The

December 16, 2003 dismissal order does
not say.
We
have
in
the
past
admonished trial courts against issuing
dismissal orders similar to that appealed
in CA-G.R. CV No. 83096. A trial court
should always specify the reasons
for a complaints dismissal so that
on appeal, the reviewing court can
readily
determine
the prima
facie justification
for
the
dismissal. A decision that does not
clearly and distinctly state the facts and
the law on which it is based leaves the
parties in the dark and is especially
prejudicial to the losing party who is
unable to point the assigned error in
seeking a review by a higher tribunal.
We thus agree with the
petitioner that the dismissal of Civil
Case
No.
02-488 constituted
a
denial of due process. Elementary
due process demands that the
parties to a litigation be given
information on how the case was
decided, as well as an explanation
of the factual and legal reasons that
led to the conclusions of the
court. Where
the
reasons
are
absent, a decision (such as the
December 16, 2003 dismissal order)
has absolutely nothing to support it
and is thus a nullity.
For this same reason, we are
not
moved
by
respondent
FGU
Insurances
statement
that
the
disposition of the present petition must
be limited to the issue of whether the CA
had correctly dismissed the appeal in
CA-G.R. CV No. 83096. This statement
implies that we cannot properly look into
the validity of the December 16,
2003 dismissal order in this Rule 45
petition. A void decision, however, is
open to collateral attack. While we
note
that
the
validity
of
the dismissal order with respect to
Section 1, Rule 36 of the Rules of
Court was never raised by the
petitioner as an issue in the
present petition,
the
Supreme
Court is vested with ample authority
to review an unassigned error if it
finds
that
consideration
and
resolution are indispensable or
necessary in arriving at a just
decision in an appeal. In this case,
the interests of substantial justice
warrant the review of an obviously
void dismissal order.
A valid judgment must contain factual findings, it
must have conclusions as to the law available. If the
court simply says that the dismissal was for failure
to prosecute for an unreasonable length of time,
that is not a factual finding nor conclusion based on
law, it is just a conclusion of the court. The SC said
that for a trial court to render a valid judgment, the court

should explain why and how the court came to the

conclusion that the plaintiff is guilty of nolle prosequi. The
court should give instances pertaining to the records of the
case that enabled the court to conclude that the plaintiff
has failed to prosecute for an unreasonable length of time.
Without such explanation, even if the judgment is entered,
it can be subjected to direct or collateral attack.
If there is an adjudication upon the merits, when the order
is simply an order of dismissal, under Rule 17 or even
under Rule 16, for the validity of that final order of
dismissal, there should be an explanation of how and why
there is a dismissal of the case, the dismissal being a final
adjudication of the case.
An order of dismissal with prejudice under Rules 16,
17, 33 or even under any rule allowing dismissal of
the action, the order of dismissal, if it is going to be
considered an adjudication of the merits, must
comply with the requirements of Section 1, Rule 36.
Non-compliance thereto, the dismissal is an void
judgment which can be subjected to direct or
collateral attack.

RULE 18 PRE-TRIAL
Mandatory in all cases, even in summary procedure, where
it is called a preliminary conference. It is present even in
small claims procedure, where there is a semblance of pretrial in the preliminary conference under the Judicial
Dispute Rule.
It is the duty of the plaintiff to schedule his complaint for
pre-trial after the last pleading has been filed. Failure to do
so, the case may be dismissed with prejudice. But again,
the order of dismissal should order why and how the court
has arrived at the conclusion that the plaintiff has waived
or not obeyed the RoC. This rule on pre-trial has been
modified by the SC, applying the rules of mediation and
conciliation.
The Trial Court calls the parties to pre-trial. The parties are
told to attend a mediation/conciliation process by
accredited mediators/conciliators. The case might be
terminated while in this process. The mediator/conciliator
usually issues notices to the parties as to the schedule of
the mediation/conciliation conference. If the plaintiff does
not appear for mediation/conciliation, he repeatedly
ignores such notices sent as to the schedule of the
mediation/conciliation conference, the mediator/conciliator
will submit a report thereof to the trial court. It can be a
ground of dismissal with prejudice, according to SC
Circulars. If a court orders that the parties should attend a
mediation/conciliation conference, such conference is
deemed part of the pre-trial process. It is tantamount to
the plaintiff absenting himself from a hearing in the trial,
and thus a violation of an order of the court. Thus, such
disobedience by the plaintiff shall be a ground for
dismissal with prejudice.
If mediator/conciliator fails in the attempt to settle, they
will file a report and recommend proceeding to a pre-trial
proper. Parties will be ordered to submit pre-trial brief and
attend the pre-trial conference.
There are now several layers that the SC Circulars
introduced that will enable a trial court to enforce the state
policy in the NCC which encourages the parties to settle
their case amicably, one of which is the
mediation/conciliation conference as part of the pre-trial
conference.

Basing on Rule 18, the parties have a common duty

for purposes of pre-trial:
1. submission of a pre-trial brief
2. attend the pre-trial conference
If any one of them fails to submit a pre-trial brief, there are
serious sanctions imposed. Even if they have timely
submitted their pre-trial brief but if one party was absent
in the pre-trial conference, there are serious
consequences.
Sanctions for failure to attend pre-trial conference
or to file brief:
Plaintiff = dismissal of complaint with prejudice;
Defendant = plaintiff is allowed to present his evidence ex
parte.
We do not observe anymore the principle that if the
defendant was unable to attend the pre-trial conference,
or he fails to submit a pre-trial brief on time, the court can
no longer issue an order declaring the defendant in
default. What the court will do is order the plaintiff to
present evidence ex-parte. The decision of the court will be
based on such evidence.
EX-PARTE PRESENTATION OF EVIDENCE UNDER RULE
18 VS. EX PARTE EVIDENCE UNDER RULE 9
Ex Parte Evidence under Rule 18 Defendant has filed
an answer but fails to submit pre-trial brief or did not
attend pre-trial conference, plaintiff can be ordered to
present evidence ex parte, court will make an award
according with the evidence presented by plaintiff
(application of amendment to pleadings in order to
conform to evidence).
Ex Parte Evidence under Rule 9 Defendant is in
default, ex parte evidence can be presented, and the court
will only award those reliefs prayed for in the complaint.
Note: Amendment of pleading to conform to evidence is
not applied in an ex-parte presentation of evidence under
Rule 9 when the defendant is in default.
Rules applicable to pre-trial conference in a civil vs.
criminal case = usual Bar Q source
Effect of pre-trial in civil case and criminal case about
stipulations of facts.
Civil case stipulations of facts can be had; joint
stipulation of facts can be had; in pre-trial
conferences, parties are encouraged to agree on
existence of certain facts, making them part of the
records of the case; Verbal stipulations of facts can
be allowed and considered valid. These stipulations
need not be presented in evidence, as the court will
take judicial notice of these stipulations, and will be
considered as judicial admissions.
Criminal case stipulation of facts should be
reduced into writing, signed by the counsel of the
accused and accused himself, and approved in
court. Otherwise, it will be inadmissible in court.
Pre-trial Order court are required to issues such order
after the termination of the pre-trial conference, stating
therein the matters to be taken up and will serve to control
the proceedings in trial proper. The court is required to
specify the issues that have not been stipulated upon and
what should be the object of the trial whenever the court

finds it necessary to conduct a trial. This is an important

document in a civil case insofar as the triable issues are
concerned.
If we follow the decisions of the SC, the issues that are
specified in a pre-trial order in a civil case, since they
control the proceedings to be taken thereafter by the
court, the court can even disregard the pleadings
submitted by the parties after the pre-trial.
Facts:
The complaint was for collection of sums of money
amounting to 1M. During pre-trial, the parties agree
that the real issue is to recover possession and
ownership from defendant a piece of land, instead
of collection of 1M as stated in the complaint. That
is the issue embodied in the pre-trial order. Is the
pre-trial order valid?
Yes. Although it is in conflict with pleadings, Rule 18 is very
clear that it is the pre-trial order that will govern the
proceedings, not the pleadings.
Although we learn in Evidence that the issues are those
found in the pleadings in a civil case, the triable issues for
the purposes of a civil case are those found in the pre-trial
order. There is nothing wrong in a civil case if we start with
a collection of money case that is converted to a recovery
of property case in pre-trial, even without amending the
complaint. This is because what governs the course of the
proceedings is the triable issue that is specified in the pretrial order, as specified under the last section of Rule 18.
Thus, in our last example, the court will simply ignore the
issue as to the claim for a sum of money, as the issue to
be tried will be the issue on the recovery of possession and
ownership of a piece of land, the issue found in the pretrial order.
Why do we allow the trial court to change the issues
without changing the pleadings?
This is because, during the pre-trial hearings, the parties
are present therein. And if they both agreed to the change
of issues in open court, such as changing the issues of the
complaint from collection for sums of money to that of
recovery of possession and ownership of property, then
the court will be simply following the desire of the litigants
as to what issue to be tried during the trial.
This is allowed in civil cases only. It is inapplicable in a
criminal case.
Let us say the court strictly follows the pre-trial order, and
then reminds the parties that the issue in the trial will be
the recovery by the plaintiff of possession and ownership
of the property from the defendant. And during the trial,
the plaintiff was able to show that he was indeed entitled
to recover, then there is nothing wrong with that as the
evidence is relevant and material.
What if during the trial, the plaintiff also presented
evidence that he is also entitled to recover 1M
along with the property, will it be allowed?
He cannot, if the defendant objects. But, if the defendant
failed to object to such evidence, the plaintiff will be able
to present evidence on an issue not raised in the pre-trial
order.
Why do we allow the plaintiff to present evidence
on an issue not raised in the pre-trial order, about
his entitlement to recover from the defendant the
amount of 1M?
This is because of the rule of amendment to conform to
evidence. In a civil case, we can jump from one issue to

another so long as parties agree. The issue in the pre-trial

order could be different from that raised in the pleadings,
and even issue tried during trial could be different from
that raised in the pre-trial order. The parties are given
much flexibility and allowance in a civil case to present
evidence on any issue they so desire. The only limitation is
that the other party might object to evidence presented
that is not related to the issue found in the pre-trial order,
that the evidence is irrelevant and immaterial. If evidence
is allowed, the court shall issue judgment based on
evidence presented, based on the rule of amendment to
conform to evidence.
ALTERNATIVE DISPUTE RESOLUTION
NCC Compromises and Arbitration
NCC expresses the policy of the state that the courts
should encourage litigants to settle disputes amicably or to
submit to arbitration if they cannot voluntarily agree to
settle the dispute by themselves.
Domestic Arbitration Act RA 876
Law on ADR gave autonomy to contracting parties in
submitting their disputes to alternative modes of dispute
resolution, including prerogative to agree on the procedure
to be followed in case they enter into any mode of ADR.
There are 3 recent cases dealing with ADR. The
principles formed in these 3 cases formed the circular on
arbitration.
Gonzales vs. RTC(2007 case)
Thus, the main issue raised in the
Petition for Certiorari is whether it
was proper for the RTC, in the
proceeding to compel arbitration
under R.A. No. 876, to order the
parties to arbitrate even though the
defendant therein has raised the
twin issues of validity and nullity of
the Addendum Contract and,
consequently, of the arbitration
clause therein as well. The resolution
of both Climax-Arimcos Motion for
Partial Reconsideration and/or
Clarification in G.R. No. 161957 and
Gonzaless Petition for Certiorari in G.R.
No. 167994 essentially turns on whether
the question of validity of the Addendum
Contract bears upon the applicability or
enforceability of the arbitration clause
contained therein. The two pending
matters shall thus be jointly resolved.
***
We address the Rule 65 petition in
G.R. No. 167994 first from the
remedial law perspective. It
deserves to be dismissed on
procedural grounds, as it was filed
in lieu of appeal which is the
prescribed remedy and at that far
beyond the reglementary period. It
is elementary in remedial law that the
use of an erroneous mode of appeal is
cause for dismissal of the petition for
certiorari and it has been repeatedly
stressed that a petition for certiorari is
not a substitute for a lost appeal. As its
nature, a petition for certiorari lies only
where there is no appeal, and no
plain, speedy and adequate remedy in
the ordinary course of law. The

Arbitration Law specifically provides

for an appeal by certiorari, i.e., a
petition for review under certiorari
under Rule 45 of the Rules of Court
that raises pure questions of law.
There is no merit to Gonzaless
argument that the use of the
permissive term may in Sec. 29,
R.A. No. 876 in the filing of appeals
does not prohibit nor discount the
filing of a petition for certiorari
under Rule 65. Proper interpretation of
the aforesaid provision of law shows that
the term may refers only to the filing
of an appeal, not to the mode of review
to be employed. Indeed, the use of
may merely reiterates the principle
that the right to appeal is not part of due
process of law but is a mere statutory
privilege to be exercised only in the
manner and in accordance with law.
***
The situation in B.F. Corporation is not
availing in the present petition. The
disquisition in B.F. Corporation led to the
conclusion that in order that the question
of jurisdiction may be resolved, the
appellate court had to deal first with a
question of law which could be
addressed in a certiorari proceeding. In
the present case, Gonzaless
petition raises a question of law, but
not a question of jurisdiction. Judge
Pimentel acted in accordance with
the procedure prescribed in R.A. No.
876 when he ordered Gonzales to
proceed with arbitration and
appointed a sole arbitrator after
making the determination that
there was indeed an arbitration
agreement. It has been held that as
long as a court acts within its
jurisdiction and does not gravely
abuse its discretion in the exercise
thereof, any supposed error
committed by it will amount to
nothing more than an error of
judgment reviewable by a timely
appeal and not assailable by a
special civil action of certiorari.
Even if we overlook the employment
of the wrong remedy in the broader
interests of justice, the petition
would nevertheless be dismissed for
failure of Gonzalez to show grave
abuse of discretion.
***
Thus, we held in Manila Electric Co. v.
Pasay Transportation Co. that a
submission to arbitration is a contract. A
clause in a contract providing that all
matters in dispute between the parties
shall be referred to arbitration is a
contract, and in Del Monte CorporationUSA v. Court of Appeals that [t]he
provision to submit to arbitration
any dispute arising therefrom and
the relationship of the parties is
part of that contract and is itself a
contract. As a rule, contracts are
respected as the law between the
contracting parties and produce

effect as between them, their

assigns and heirs.

The court shall decide

all motions, petitions
or applications filed
under the provisions of
this Act, within ten
days after such
motions, petitions, or
applications have been
heard by it. [Emphasis
added.]

The special proceeding under Sec. 6 of

R.A. No. 876 recognizes the contractual
nature of arbitration clauses or
agreements. It provides:
SEC. 6. Hearing by
court.A party
aggrieved by the
failure, neglect or
refusal of another to
perform under an
agreement in
writing providing for
arbitration may
petition the court for
an order directing that
such arbitration
proceed in the manner
provided for in such
agreement. Five days
notice in writing of the
hearing of such
application shall be
served either
personally or by
registered mail upon
the party in default.
The court shall hear
the parties, and upon
being satisfied that the
making of the
agreement or such
failure to comply
therewith is not in
issue, shall make an
order directing the
parties to proceed to
arbitration in
accordance with the
terms of the
agreement. If the
making of the
agreement or default
be in issue the court
shall proceed to
summarily hear such
issue. If the finding be
that no agreement in
writing providing for
arbitration was
made, or that there is
no default in the
proceeding thereunder,
the proceeding shall be
dismissed. If the
finding be that a
written provision for
arbitration was made
and there is a default
in proceeding
thereunder, an order
shall be made
summarily directing
the parties to proceed
with the arbitration in
accordance with the
terms thereof.

***

Implicit in the summary nature

of the judicial proceedings is the
separable or independent character of
the
arbitration
clause
or
agreement. This was highlighted in the
cases
of Manila
Electric
Co.
v. Pasay Trans.
Co. and Del
Monte
Corporation-USA v. Court of Appeals.
The doctrine of separability,
or severability as other writers call
it, enunciates that an arbitration
agreement is independent of the
main
contract. The
arbitration
agreement is to be treated as a
separate
agreement
and
the
arbitration agreement does not
automatically terminate when the
contract of which it is part comes to
an end.
The
separability
of
the
arbitration agreement is especially
significant to the determination of
whether the invalidity of the main
contract
also
nullifies
the
arbitration
clause. Indeed,
the
doctrine denotes that the invalidity
of the main contract, also referred
to as the container contract,
does not affect the validity of the
arbitration agreement. Irrespective
of the fact that the main contract is
invalid,
the
arbitration
clause/agreement still remains valid
and enforceable.
The
separability
of
the
arbitration clause is confirmed in
Art. 16(1) of the UNCITRAL Model
Law and Art. 21(2) of the UNCITRAL
Arbitration Rules.
The separability doctrine was dwelt upon
at length in the U.S. case of Prima Paint
Corp. v. Flood & Conklin Manufacturing
Co. In that case, Prima Paint and Flood
and Conklin (F & C) entered into a
consulting agreement whereby F & C
undertook to act as consultant to Prima
Paint for six years, sold to Prima Paint a
list of its customers and promised not to
sell paint to these customers during the
same period. XXX
XXX The parties should be ordered
to arbitration if, and only if, they
have contracted to submit to
arbitration. Prima Paint was not
entitled to trial on the question of
whether an arbitration agreement

was made because its allegations of

fraudulent inducement were not
directed to the arbitration clause
itself, but only to the consulting
agreement which contained the
arbitration agreement. Prima Paint
held that arbitration clauses are
separable from the contracts in
which they are embedded, and that
where no claim is made that fraud
was directed to the arbitration
clause itself, a broad arbitration
clause will be held to encompass
arbitration of the claim that the
contract itself was induced by
fraud.
There is reason, therefore, to rule
against Gonzales when he alleges that
Judge Pimentel acted with grave abuse
of discretion in ordering the parties to
proceed with arbitration. Gonzaless
argument that the Addendum Contract is
null and void and, therefore the
arbitration clause therein is void as well,
is not tenable. First, the proceeding
in a petition for arbitration under
R.A. No. 876 is limited only to the
resolution of the question of
whether the arbitration agreement
exists. Second, the separability of
the arbitration clause from the
Addendum Contract means that
validity or invalidity of the
Addendum Contract will not affect
the enforceability of the agreement
to arbitrate. Thus, Gonzaless
petition for certiorari should be
dismissed.
DOCTRINE OF SEPARABILITY OR SEVERABILITY
The invalidity of the main contract, also referred to
as the container contract, does not affect the
validity of the arbitration agreement. Irrespective
of the fact that the main contract is invalid, the
arbitration clause/agreement still remains valid and
enforceable.
2008 cases
ABS-CBN Broadcasting Corporation
v. World Interactive Network
Systems (WINS) Japan Co., Ltd.
(G.R. No. 169332)
11 February 2008
ABS-CBN Broadcasting Corporation (ABSCBN), a domestic corporation, entered
into a licensing agreement (Agreement)
with World Interactive Network Systems
(WINS) Japan Co., Ltd. (WINS), a foreign
corporation licensed under the laws of
Japan. Under the Agreement, ABS-CBN
granted WINS an exclusive license to
distribute and sublicense the television
service known as The Filipino Channel
(TFC) in Japan.
Arbitration proceedings were
commenced by WINS after ABS-CBN
threatened to terminate the Agreement
on the ground that WINS allegedly

inserted, without authority, several

episodes of WINS Weekly, a weekly 35minute community news program for
Filipinos in Japan, into the TFC
programming. The arbitrator ruled in
favor of WINS, finding that ABS-CBN had
in fact given its approval for the airing of
WINS Weekly and that it threatened to
terminate the Agreement merely as a
strategy to re-negotiate for higher fees.
WINS filed a petition for the confirmation
of the award before the Philippine trial
court.
ABS-CBN, on the other hand, questioned
the arbitral award by filing with the Court
of Appeals a petition for review under
Rule 43 of the Rules of Court (a mode of
appeal to question errors of fact and/or
law) or, in the alternative, a petition for
certiorari under Rule 65 (an original
action based on grave abuse of
discretion amounting to lack or excess of
jurisdiction).
The Court of Appeals dismissed ABSCBNs petition for lack of jurisdiction,
holding that it is the trial court which has
jurisdiction over questions relating to
arbitration. The Court of Appeals held
that the only instance it can exercise
jurisdiction over an arbitral award is an
appeal from the trial court's decision
confirming, vacating or modifying the
arbitral award.
On Appeal, the Supreme Court affirmed
the Court of Appeals ruling but for a
different reason. On the procedural
issue, the Supreme Court ruled that ABSCBN cannot simultaneously avail of the
alternative remedies under Rule 43 and
Rule 65.
On the issue of the scope of judicial
review, the Supreme Court
disagreed with the Court of Appeals
position that an aggrieved party
cannot seek recourse against an
arbitral award directly with the
Court of Appeals.
According to the Supreme Court, a
party aggrieved by an arbitral
award has three (3) remedies, to
wit: (a) a petition in the proper trial
court to issue an order to vacate the
award under Republic Act No. 876
(which applies to domestic
arbitration); (b) a petition for review
with the Court of Appeals under
Rule 43 of the Rules of Court on
questions of fact, of law, or mixed
questions of fact and law; and (c) a
petition for certiorari with the Court
of Appeals under Rule 65 of the
Rules of Court if the arbitrator acted
without or in excess of his
jurisdiction or with grave abuse of
discretion amounting to lack or
excess of jurisdiction.

Section 24 of R.A. No. 876

The grounds to vacate under Section 24
are:
(a) The award was procured by
corruption, fraud, or other undue means;
or
(b) That there was evident partiality or
corruption in the arbitrators or any of
them; or
(c) That the arbitrators were guilty of
misconduct in refusing to postpone the
hearing upon sufficient cause shown, or
in refusing to hear evidence pertinent
and material to the controversy; that one
or more of the arbitrators was
disqualified to act as such under section
nine hereof, and willfully refrained from
disclosing such disqualifications or of any
other misbehavior by which the rights of
any party have been materially
prejudiced; or
(d) That the arbitrators exceeded their
powers, or so imperfectly executed
them, that a mutual, final and definite
award upon the subject matter
submitted to them was not made.
Rule 43
The Supreme Court noted that Rule 43 of
the Rules of Court expressly applies to
awards, judgments, final orders or
resolutions of quasi-judicial agencies,
including voluntary arbitrators
authorized by law.
Rule 65
As for the remedy under Rule 65, the
Supreme Court stressed that it will not
hesitate to review a voluntary
arbitrators award where there is a
showing of grave abuse of authority or
discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor
any plain, speedy remedy in the course
of law.
It should be noted that the Philippine
Alternative Dispute Resolution Act of
2004 (ADR Law) adopted and
incorporated the provisions of the
UNCITRAL Model Law on International
Commercial Arbitration (Model Law),
which limits recourse against an
international arbitral award only to the
grounds specified under Section 34 of
the Model Law (e.g., incapacity of a party
to the arbitration agreement or the
invalidity of the arbitration agreement
under the applicable law). Neither the
Model Law, nor the New York Convention
on the Recognition and Enforcement of
Foreign Arbitral Awards, to which the
Philippines acceded in 1967, recognize
the setting aside of international/foreign
on the broader grounds of errors of law
and/or fact or grave abuse of discretion.

Notably, the ruling in ABS-CBN

treated the case as a domestic
arbitration even though one of the
parties, i.e., WINS, was a Japanese
corporation and a substantial
portion of the obligation, i.e., the
distribution and sublicensing of the
The Filipino Channel, was
performed in Japan. Perhaps this
may be explained by the fact that
the arbitral award in this case was
rendered prior to the enactment of
the ADR Law. It was only under the
ADR Law that a distinction was
made between domestic arbitration
and international arbitration. Under
the ADR Law, international
arbitration shall be governed by the
Model Law, while domestic
arbitration shall be governed by
R.A. No, 876. The ADR Law adopts
the definition of international
arbitration under Article 1(3) of the
Model Law. Domestic arbitration,
on the other hand, defines domestic
arbitration as arbitration that is not
international.

Koreatec vs. Lerma January2008

Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et
al. (G.R. No. 143581, 7 January 2008), the Supreme Court
held that the ADR Law, being a procedural law, may
be given retroactive effective. Hence, there appears to
be a conflict in this respect between ABS-CBN and Korea
Technologies.
For domestic arbitration proceedings, we
have particular agencies to arbitrate
disputes arising from contractual
relations. In case a foreign arbitral
body is chosen by the parties, the
arbitration rules of our domestic
arbitration bodies would not be
applied. As signatory to the Arbitration
Rules of the UNCITRAL Model Law on
International Commercial Arbitration[41]
of the United Nations Commission on
International Trade Law (UNCITRAL) in
the New York Convention on June 21,
1985, the Philippines committed itself to
be bound by the Model Law. We have
even incorporated the Model Law in
Republic Act No. (RA) 9285, otherwise
known as the Alternative Dispute
Resolution Act of 2004 entitled An Act to
Institutionalize the Use of an Alternative
Dispute Resolution System in the
Philippines and to Establish the Office for
Alternative Dispute Resolution, and for
Other Purposes, promulgated on April 2,
2004. Secs. 19 and 20 of Chapter 4 of
the Model Law are the pertinent
provisions:
CHAPTER 4 - INTERNATIONAL
COMMERCIAL ARBITRATION
SEC. 19. Adoption of
the Model Law on

International
Commercial
Arbitration.
International
commercial arbitration
shall be governed by
the Model Law on
International
Commercial Arbitration
(the Model Law)
adopted by the United
Nations Commission on
International Trade Law
on June 21, 1985
(United Nations
Document A/40/17)
and recommended for
enactment by the
General Assembly in
Resolution No. 40/72
approved on December
11, 1985, copy of
which is hereto
attached as Appendix
A.
SEC. 20. Interpretation
of Model Law.In
interpreting the Model
Law, regard shall be
had to its international
origin and to the need
for uniformity in its
interpretation and
resort may be made to
the travaux
preparatories and the
report of the Secretary
General of the United
Nations Commission on
International Trade Law
dated March 25, 1985
entitled, International
Commercial
Arbitration: Analytical
Commentary on Draft
Trade identified by
reference number
A/CN. 9/264.
While RA 9285 was passed only in
2004, it nonetheless applies in the
instant case since it is a procedural
law which has a retroactive effect.
Likewise, KOGIES filed its
application for arbitration before
the KCAB on July 1, 1998 and it is
still pending because no arbitral
award has yet been rendered. Thus,
RA 9285 is applicable to the instant
case. Well-settled is the rule that
procedural laws are construed to be
applicable to actions pending and
undetermined at the time of their
passage, and are deemed
retroactive in that sense and to that
extent. As a general rule, the
retroactive application of procedural
laws does not violate any personal
rights because no vested right has
yet attached nor arisen from them.

There are certain principles to keep in mind

concerning arbitration proceedings:
1. Domestic arbitration or a foreign arbitral body
Domestic arbitration following RA 876
Foreign arbitration/commercial arbitration RA
9285, the ADR Law
The parties submit to a panel of/an arbitrator/s.
There is a need for an arbitration clause.
Parties may agree later on to submit to arbitration
if there is no arbitration clause in the contract.
2. Container Contract - the principal contract where we
incorporate an arbitration clause.
Some Principles to familiarize in ADR:
~Principle of Separability emphasizes that whenever
there is a container contract with an arbitration clause,
from a legal viewpoint, the parties entered into two
different contracts.
~Principle of Judicial Restraint
~Competence- Competence
Principle of Separability
Arbitration clause is treated as an
agreement independent of the other
terms of the contract of which it
forms part. A decision that the contract
is null and void shall not entail ipso jure
the invalidity of the arbitration clause.
(Uncitral Model Law, Sec. 16(1); Special
ADR Rules 2.2)
If there is a judgment by a court that the container
contract is unenforceable, that will not affect the
arbitration clause as it is a separate contract by
itself. This clause will still govern the relationship of
parties concerning the filing of cases in court or
arbitration board as the case may be.
If the arbitration clause is still valid, and one of the
parties filed a case in court, allegedly for the
enforcement of his right, then the court, confronted
with the arbitration clause/contract, will have to
either dismiss the complaint or suspend the
proceedings and compel the parties to go into
arbitration.
Under the decisions of the 3 cases, the court also
emphasize that there could be a complaint to declare the
unenforceability of or to declare void the arbitration
contract. It is an RTC that has jurisdiction to do so. But
even if there is a pendency of such a case to declare
unenforceability of or to declare void the arbitration
contract, it shall not serve to prevent the parties from
proceeding to arbitration. In fact, these cases came out
with a principle which the court called the Principle of
Anti-Suit Injunction.
The Principle of Anti-Suit Injunction means that the
court has no authority to issue a writ of injunction
to prevent an arbitration from proceeding or an
arbitration board to be constituted for the purpose
of enforcing the arbitration clause.
Competence-Competence.
What is the Competence-Competence Principle?
Power of arbitral tribunal to initially rule on the
question of its jurisdiction over a dispute including

any objections with respect to the existence or

validity of the arbitration agreement or any
condition precedent to the filing of a request of
arbitration.
The Special ADR Rules recognize
the principle of competencecompetence, which means that the
arbitral tribunal may initially rule on
its own jurisdiction, including any
objections with respect to the
existence or validity of the
arbitration agreement or any
condition precedent to the filing of a
request for arbitration. A.M. No.
07-11-08-SC Special Rules on ADR
Restatement of the Rule:
Before the arbitral tribunal is constituted, the
regular courts have jurisdiction to determine the
issue of competence of a tribunal. The moment the
arbitral tribunal is constituted, the arbitral tribunal
has jurisdiction.
There arises a policy of judicial restraint, such that the
finding of the court on the jurisdiction of the
arbitral tribunal is at best prima facie.
Note:
There is a before Arbitration Tribunal, after Arbitration
Tribunals finding, and after-after.
Competence-competence means that the arbitral
body has the authority to rule on the issue as to
whether or not it has jurisdiction over the case and
the enforceability and validity of its decisions. IT IS
NOT EXCLUSIVELY GIVEN TO A COURT. There could be a
situation that an RTC will declare that the arbitration
clause is unenforceable, but the arbitration board declared
such clause enforceable, the decision of the board will
prevail.
The RTC may have the authority to entertain a petition to
declare void or unenforceable an arbitration clause. But
the decision of the RTC is merely prima facie. We will rely
the findings later on of the arbitral tribunal. This is the
principle of competence-competence. (Dean Jara)
Does the prima facie finding of the court mean
that the arbitral tribunal can still be formed?
Yes. If the court finds that the arbitration agreement is null
and void, inoperative or incapable of being performed, a
party may nevertheless commence arbitration and
constitute the arbitral tribunal.
So where does prima facie finding of the court
come in? How is it prima facie?
This means that the same issue may be passed upon by
the arbitral tribunal, which has the effect of superseding
the previous of the court. (This is the AFTER ruling.)
What about the after-after ruling?
The same issue may be passed upon in an action to vacate
or set aside the arbitral award (Rule 3.11) In this case, it is
no longer a prima facie determination of such issue or
issues, but shall be a FULL REVIEW of such issue or issues
with due regard, however, to the standard of review for
arbitral awards.
But how may arbitration commence if it the court
has made a prima facie finding that the arbitration
agreement is found null and void, inoperative or

incapable of being performed? Will the other party

who got the favorable ruling of the court participate
/ cooperate?
Get an appointment of arbitrator - sole arbitrator, ad-hoc,
institutional.
Principle of Judicial Restraint there should be least
intervention by courts of courts of justice insofar as
arbitration proceedings are concerned. So, if there is
an ongoing arbitration, or even if there is a pending case
there is a right to compel one of the parties to submit to
arbitration, the court should not interfere in the
constitution of the arbitral board. The reasoning
behind is that when the parties crafted the arbitration
clause, there is an implicit understanding between the
parties is that an arbitral board, and not a court of justice,
should resolve their dispute. The court deems this as a
valid contract as it is the policy is to give autonomy to the
parties in choosing the manner to adjudicate their
disputes. They do not need to go to a court of justice. They
can go to an arbitration body, which is a faster and
practical means of settling their disputes.
Rule 2.4. Policy implementing
competence-competence principle.The
arbitral tribunal shall be accorded
the first opportunity or competence
to rule on the issue of whether or
not it has the competence or
jurisdiction to decide a dispute
submitted to it for decision,
including any objection with respect
to the existence or validity of the
arbitration agreement. When a
court is asked to rule upon issue/s
affecting the competence or
jurisdiction of an arbitral tribunal in
a dispute brought before it, either
before or after the arbitral tribunal
is constituted, the court must
exercise judicial restraint and defer
to the competence or jurisdiction of
the arbitral tribunal by allowing the
arbitral tribunal the first
opportunity to rule upon such
issues.
Where the court is asked to make a
determination of whether the
arbitration agreement is null and
void, inoperative or incapable of
being performed, under this policy
of judicial restraint, the court must
make no more than a prima facie
determination of that issue.
Unless the court, pursuant to such
prima facie determination,
concludes that the arbitration
agreement is null and void,
inoperative or incapable of being
performed, the court must suspend
the action before it and refer the
parties to arbitration pursuant to
the arbitration agreement.
A.M. No. 07-11-08-SC Special Rules
on ADR
Can an arbitral body or arbitrator grant provisional
remedies?

The circular on arbitration as well as jurisprudence states

that yes, arbitration board can be allowed to grant
provisional remedies or interim relief. Art. 17 J of UNCITRAL
Model Law on ICA also grants courts power and jurisdiction
to issue interim measures. Thus, a panel of arbitrators can
issue a writ of preliminary injunction, a writ of preliminary
attachment, they can appoint a receiver, and even can
issue a protection order so that the property in dispute
may be preserved.
If a court of justice grants interim relief or provisional relief
that is in conflict with the relief granted by the arbitral
body, it is the relief granted by the arbitral body that shall
prevail. This emanates from the principle of Anti-Suit
Injunction and Principle of Judicial Restraint.
Principle of Anti-Suit Injunction
~The remedial device available in
common law systems to restrain a party
from instituting or continuing with
proceedings in a foreign court.
~Refers to an extraordinary procedure
where a court issues an order to the
effect that proceedings in a second
jurisdiction should not precede. It is
necessary to prevent an irreparable
miscarriage of justice.
The Complaint in the arbitration board must contain the
evidence (attachments) and the legal brief, an argument
supporting the partys stand as to why his claim must be
given weight and granted. Defendant must file a response
of similar composition to such complaint (with legal brief).
The legal brief is similar to a memorandum (In ordinary
civil procedure, when there is an appeal, then we require
filing of a brief in the court.).In short, this is a short cut of
the civil procedure.
There is no summons issued by the arbitration board, just
a notice for filing a response. Service thereof can be had
by private courier.
Because of the requirement of prior submission of
evidence together with the filing of pleadings and legal
brief, it is easy to appreciate how the arbitration board can
easily grasp what the issues are all about and they can
right away render an arbitral award. But it can require the
submission of additional evidence if needed. There is a
provision in the ADR rules which states that the technical
rules of evidence will not govern proceedings therein.
Let us say that the winning party wants the arbitral award
to be treated like a judgment of the court, he simply files
with the RTC to confirm arbitral award. He can do it at any
time. If arbitral award is confirmed by the RTC, the arbitral
award ceases to be such and is now a judgment that can
be executed under Rule 39. Violation thereof can cause
winning party to file motion for execution of judgment. In
arbitration, an arbitral award is final and executory,
especially if confirmed by the RTC.
The losing party can file a petition with the same RTC
which has authority to confirm the award for purpose of
vacating, correcting or modifying said award.
Supposing the RTC vacates award, setting it aside.
Can the RTC make its own decision concerning the
merits of the decision?
Not possible. Although a court of justice can vacate,
modify or correct an arbitral award, it has no authority to
render its own judgment on the merits. The domestic
arbitration law and the SC Circular said that if the court

decides to vacate the award, the court does not have

the authority to change the conclusions of law of
the arbiter. The principle is a court cannot render its
own decision on a case already submitted for
arbitration. While it can vacate, modify or correct
the award, and it does so, the court should return
the decision to the arbitration panel for further
study, or the parties can opt to have a new
arbitration panel constituted. The court cannot impose
its own judgment on the merits of the case. The court can
review the case, and modify, vacate or correct the AWARD,
but it cannot reverse the findings of facts and conclusions
of the arbiter.
Supposing the RTC affirms the arbitral award, does
the losing party still have a recourse?
The recourse of the losing party is to appeal in the CA via
Petition for Review under Rule 43. The justification for this
remedy is that in the enumeration of quasi-judicial bodies
whose decision can be reviewed by the CA, it includes the
review of an award made by arbitrators. From Rule 43,
there can be an appeal to the SC via a Petition for Review
under Rule 45.
There is a judicial review for reviewing arbitration cases.
But the reviewing courts will have limited authority
concerning the manner by which the judgment could be
held. The court cannot change the factual findings of an
arbitral body. In case of a review brought to the RTC, CA or
SC involving arbitral award, there are few grounds
mentioned. We cannot raise Questions of law or fact. We
have to follow the grounds mentioned in RA 876.
Grounds for justifying a court of justice in issuing an
order to vacate the award:
1. arbitrator engages in corrupt practices
2. arbitrator resolved issues not brought before him
3. arbitrator exceeded his authority
4. failure to disclose his relationship to one of the parties
within 6 degrees.
Note :These are not the usual grounds of appeal in civil
cases. The courts should see to it that causes should be
founded on these grounds for granting the vacation of an
award.
With respect to International Commercial Arbitration,
which can be held in RP or outside. A foreign arbitral
award will be treated like a domestic arbitral award,
not a foreign award. It is not considered a judgment
rendered in a court of justice. Even if confirmed by a
foreign court, the prevailing party must petition for the
recognition of the award in the RTC. It can be enforced in
RP by filing in RTC for a petition of recognition and
enforcement of the arbitral award. Its execution will fall
under RTC jurisdiction, under Rule 39. The last section of
Rule 39 talks about the judgment rendered by the foreign
court.
Rule 39, SEC. 48. Effect of foreign
judgments or final orders.The effect of
a judgment or final order of a tribunal of
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 of
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.
The remedy of a winning party in a case decided by a
foreign court, for the enforcement thereof in RP, is to file a
petition for the enforcement of the foreign judgment.
There is no need to file a petition for recognition of a
foreign judgment. Our laws do not recognize a foreign
arbitral award as a judgment of a foreign court, it is just an
arbitral award. Thus, the prevailing party in an arbitral
award cannot make use of Section 48 under Rule 39. He
must avail of another remedy provided by the SC Circular,
which is a petition for recognition and enforcement of
foreign arbitral award in the RTC.
The court can refuse to resolve a petition for recognition
and enforcement of a foreign arbitral award; unlike in the
case of a foreign judgment rendered by a foreign court,
where the decision is conclusive upon our courts, subject
to the last paragraph of Sec. 48, Rule 39. But we do not
apply Section 48, Rule 39 to a foreign arbitral award, as it
is not a judgment rendered by a foreign court.
Supreme Court has inserted in the rules remedies made
available to the parties in ordinary cases. If a local court or
an arbitral body makes a finding that the arbitration clause
is valid and binding, it is inappealable. But if the arbitral
body makes a finding that the clause is invalid, the
decision is appealable to a trial court. If there is a finding
that the arbitrator is qualified, the motion for
reconsideration, appeal, or a petition under Rule 65
against such finding are all prohibited. This is to emphasize
the policy of judicial restraint insofar as arbitration
proceedings are concerned.
If there is an appeal in the higher court for a petition for
review of an arbitral award, the ADR law also provides that
the appellant should file a bond equal to the award
given by the panel of arbitrators; whereas in ordinary
appeal, there is no need to file an appeal bond. In ordinary
court procedure, there is no need to file an appeal bond as
it has been done away by BP 129 (requiring only the filing
of the mode of appeal and docket fees).
Read the SC Circular and the cases.
Intervention
4 kinds of intervention expressly recognized by the court:
1. Intervention upon courts discretion
Rule 19 intervention upon courts discretion; a stranger
to a case voluntarily introduces himself as a party, but
must seek court permission to do so via Motion for
Intervention.
Motion for intervention should show:
1. intervenor had direct interest, or
2. he has a grievance against both parties in the pending
case, or
3. he wants to side with one of the parties, or
4. is situated in a very unfortunate position wherein the
judgment of the court could adversely affect his
properties.
In this situation, intervention is not a matter of right as he
is required to file a motion subject to the courts decision.

In the resolution of the motion, the court has the discretion

to grant or deny the motion. If the motion is denied, the
intervenor can file a separate case against any one, or
both, parties. If his case is already filed, he can seek to
have the cases consolidated, in the instance that
consolidation is proper. If there is a consolidation, then the
intervenors desire is also satisfied, as he can no
participate in the proceedings.
If motion is granted, intervenor is required to file a
pleading (either a complaint- or an answer-in intervention).
Complaint-in-intervention filed if the intervenor either
wants to side with the complainant or is filing a complaint
against both complainant and defendant in the main
complaint.
Answer-in-intervention filed if the intervenor wants to
side with the defendant.
The filing of these pleadings do not preclude the
intervenor from availing of the other pleadings allowed in a
civil case (counter-claim, cross-claim, third-party
complaint, etc.).
Do we recognize a motion to intervene as a matter
of right on the part of the intervenor, wherein the
intervenor can insist or compel the court to allow
his intervention?
Yes, this is found in a class suit, where any member of the
class has the right to intervene, and can ask the court for
the authority to intervene. The court has no option but to
grant the intervention.
2. Court-mandated intervention court itself directly
induces the party to intervene in an existing or pending
litigation. (Rule 9, in marriage-related cases)
In marriage related cases in Rule 9, if the defendant in a
marriage-related case does not answer, the court has no
authority to declare a non-answering defendant in default,
but can direct the prosecutor to intervene in order to
determine that there is no collusion between parties.
3. Forced intervention a person becomes an
intervenor by operation of law, Rule 57 and Rule 39.
Rule 39 when the court issues writ of execution and the
properties of the losing party have been levied upon, and
sheriff also issues the ancillary writ of garnishment. When
the properties of a judgment debtor in the possession of a
3rd person are subjected to a writ of garnishment, that 3rd
person becomes a forced intervenor in the proceedings.
That person will have to obey the orders of the court
issued in relation to the execution, whether the 3rd person
likes it or not, he will be forced to act as an intervenor to
the case.
Rule 57 Preliminary attachment forced intervention; if
there is a writ of preliminary attachment issued by the
court, a supplemental writ of garnishment is issued, and
the writs were enforced by the sheriff upon a 3rd person,
that 3rd person becomes a forced intervenor in the
proceedings.
4. Court-encouraged intervention
Writ of Kalikasan cases it is a court-encouraged
intervention for NGOs and other parties to
intervene whenever there is a petition filed under
Kalikasan laws.. The court cannot compel the
intervention of these bodies, only to encourage
them.

There are some cases whose positions it appears to be in

conflict with one another in reference to the intervention
under Rule 19.
Before the court grants a motion for intervention,
the principal case was dismissed with the motion
unresolved. What happens to the motion for
intervention?
It will render the motion academic. The motion
presupposes the presence of a principal action. Absent
thereof, there can be no intervention allowed.
Intervention is always ancillary to a principal action.
Metrobank vs. CA (Dismissal of the main action will
not render intervention moot and academic)
A motion for intervention was filed while the case was
pending. The court granted the intervention. After receipt
of the order allowing him to intervene, the party filed a
complaint-in-intervention against all the parties in the
case. Intervenor did not realize that the parties of the case
were settling. The parties did arrive at an amicable
settlement. The parties sought for the dismissal of the
case, which was allowed. The intervenor objected to idea
of having his petition dismissed. The principal parties told
the court that it is axiomatic in intervention that once the
principal action has been terminated, the subsidiary action
is dismissed also.
SC Held that the intervention was already allowed. The
principle that the contention of the parties was applicable
only in the instance the motion to intervene was not yet
granted. In this case, the court has already granted the
motion to intervene. The interest of intervenor was not
common with the interest against the other parties, having
filed a complaint-in-intervention against both parties. Thus,
the intervention should be allowed to stand, the standing
of which, the intervention is considered a separate case
against the parties. Here, the intervention survived.
The MetroBank case involves a situation where in the
intervention will survive the dismissal of the main
complaint. But, for the intervention to survive, the
pleading to be filed must be a complaint-in-intervention
against both parties to the case. This will not be applicable
if the intervention was in the form of a complaint-inintervention where the intervenor sides with the plaintiff or
if the intervention was via an answer in intervention.
Although the rule provides a time frame for an intervenor
to be allowed to intervene, the SC has allowed intervention
to take place, even if there is already a pending appeal
before the CA. The Rule is very clear that intervention
should be allowed before judgment is rendered by the trial
court. After judgment is rendered by the trial court,
intervention should be no longer allowed. But, the SC
recognized the propriety of an intervention even if the
case was already pending appeal in the CA or the SC.
In the first instance where the court will allow an
intervention, even on appeal, is when the intervenor is an
indispensible party. If an intervenor attempts to intervene
if the case is already on appeal, that will save the trial
court, CA and SC from another procedural problem. We
learned that if the trial court renders a decision in a case
where an indispensable party is not impleaded, that
decision will never be final and executory. So, if on appeal,
if the indispensable party intervenes, then he should be
allowed to do so, because if he is allowed, that will cure all
the procedural effects that will be present in this particular
case. That will solve the problem of whether or not there
could be a final determination of the case or whether or

not the decision can be finally be executed under the

provisions of Rule 39.
Another situation that the SC allowed an intervention to
happen even if the case is already is on appeal is when the
Republic of the Philippines intervenes in the case. If the
Republic of the Philippines, via the Solicitor General,
intervenes in a case that is already on appeal, the SC said
that the intervention of the Solicitor General must be of
national importance, since the Solicitor General intervenes
only when the case is of paramount interest to the
Republic of the Philippines.

MODES OF DISCOVERY
The modes of appeal that we have in a civil procedure are
also available in a criminal case.
The SC in the WEBB CASE came out with the principle that
the Modes of Discovery available in civil cases are also
available in criminal cases. The only difference is that the
use of the mode of discovery should not violate or
derogate the constitutional right of the accused.
For instance, in a civil case, there is nothing wrong if the
plaintiff takes the deposition of the defendant, or the other
way around. But in a criminal case, there is something
wrong if the prosecutor takes the deposition of the
accused. The prosecutor cannot take the deposition of the
accused in a criminal case as this is a violation of the
constitutional right of the accused. But prosecutor can
takes the deposition of a witness whom the accused
wants to present in court, so long as the witness is not
the spouse of the accused (due to marital privilege; the
rule on evidence precludes a spouse being a witness
against the other spouse).
But in a civil case, there is nothing irregular about either
the plaintiff or defendant being subject to deposition. This
is even encouraged by the rules found in civil procedure.
Do the rules compel litigants to avail modes of
discovery?
Refer to Rule 18 first on Pre-Trial
In Rule 18, the plaintiff is asked to indicate if he desires to
make use modes of discovery or use ADR. They are
required to manifest that to the court.
Let us say that Plaintiff asked for leave to use
modes of discovery, but he failed to do so. Can the
court compel the plaintiff to avail it?
No, the court cannot compel, merely encourage the use of
modes of discovery.
Indirectly, the Rules to have instances where the law
indirectly compels litigant to use modes of discovery.
Otherwise he will suffer some sanctions given in the Rules.
Examples of these Rules would be those under Rule 25 and
Rule 26.
Admission or interrogatories to parties. sanction under
Rule 25 and 26
Whether admissions or interrogatories to parties, there are
practically identical sanctions imposed by the Rules.

In interrogatories to parties, the last section of Rule 25

(Section 6) provides that while a plaintiff can compel the
defendant to testify during the trial of the case as a
witness for the plaintiff, and also, the defendant can
compel the defendant to testify as a witness during the
trial, this cannot be done unless the plaintiff or defendant
has previously served upon the party concerned an
interrogatory. If the plaintiff serves a subpoena ad
testificandum to the defendant, requiring the defendant to
appear and testify in court on behalf of the plaintiff, the
defendant can ask for that subpoena to be quashed for
failure of the plaintiff to comply with requirements
contained in Rule 25 Section 6. For the plaintiff can compel
the defendant to testify, the plaintiff must have served a
written interrogatories upon the defendant. If plaintiff
cannot show that he was able to serve such written
interrogatories, the defendant can move for the quashal of
the subpoena, and defendant cannot be compelled to be a
witness in the case.
Rule 25 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.
Admission last section of Rule 26
The same rule on Rule 25 Section 6 is practically the same
for admissions. In fact, these provisions of Sec. 5 Rule 26
and Sec. 6 Rule 25 pertain to competency of certain
evidence. If an evidence is relevant, the general rule is
that the evidence should be admissible, unless it is not
competent under the provisions of our law or certain rules.
In Sec. 5 Rule 26 and Sec. 6 Rule 25, certain relevant
evidence may be rendered INADMISSIBLE or INCOMPETENT
for failure of the party to follow the requirements given in
these modes of discovery. Certain matters may not be
proven by a party unless that party complied with the
requirements given under Sec. 5 Rule 26 or Sec. 6 Rule 25.
So the sanction that the Rules imposes so the party will be
compelled to avail of the modes of discovery is that the
evidence that the evidence sought to be presented by the
proponent could become inadmissible, the otherwise
relevant evidence will become incompetent by reason of
the provisions of these Rules. That will compel the party to
avail of the modes of discovery.
Rule 26 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.
Other than these, there is nothing in our Rules that
requires a party to avail of the modes of discovery.
Availment of a mode of discovery, as a general rule, is
purely voluntary on the part of an interested party.
Another basic principle in discovery measures is that after
an answer is filed by the defendant, availment of the
modes of discovery does not require permission of the

court. The plaintiff or defendant is given the prerogative to

avail of the modes of discoveries like taking of depositions
or interrogatories to parties or admissions to parties. The
other modes of discovery will ALWAYS require leave of
court. Thus production and inspection of documents or
things in court will always require leave of court, as does
physical and mental examination of a person. But in the
case of depositions pending trial, interrogatories or
admissions, we do not need leave of court so long as the
defendant has already filed an answer.
DEPOSITION BEFORE AN ACTION OR ON APPEAL.
Deposition before action called in the past as
perpetration of testimonies. Strictly, it is not a mode of
discovery, as modes of discovery assumes that there is a
pending case in court. A deposition before action does not
require an action to be pending, and is thus treated as an
independent action by itself. This is availed of by filing a
Petition for Perpetration of Testimony, as there is no action
filed yet.
Since this is an independent proceeding, with what
court should we file the petition?
Petition to Perpetuate Testimony RTC. If we follow BP 129,
that petition would be cognizable under the RTC since it is
an independent action incapable of pecuniary estimation.
Regardless of the contemplated action to which we are
going to file, a Petition to Perpetuate Testimony is always
cognizable by an RTC.
If there is already a complaint that is filed and an answer
has been filed by the defendant, the court will allow the
use of the modes of discovery that will not require leave of
court, such as the taking of a deposition. The court has
allowed the use of these modes of discovery as a fishing
expedition. Practically there is no limitation as to what
matters can be inquired into insofar as availment of
discovery measures are concerned. It is not required that
the matters sought be discovered are relevant right away
to the issues presented in the case.
When the law says that the statutes of discovery allow a
fishing expedition, it does not mean to say that the
statutes of discovery are intended only to gather evidence
on behalf of the interested party. He may want to obtain
information only for tactical advantage during the course
of the case. He does not have to present evidence in court
information that is gathered by him via these modes of
discovery.
But, even if the party is allowed to gather information
through the modes of discovery what the law limits is the
use of evidence gathered. So, if the plaintiff was able to
gather information, let us say, from a witness who,
according to the pre-trial brief of the defendant, would be
principal witness for the defendant, it does not mean that
the deposition given by such witness will readily be
admissible in court in view of the testimony of this
defendants witness. The fact that a party has taken the
deposition of a potential witness does not mean to say that
this potential witness will now be excused from going to
court to give his testimony. The giving of deposition is
different from the giving testimony in open court. A party
may give his deposition, but it does not mean that he is
excused from testifying in court. In fact, the Rules require
that if the party has already given his deposition, he is still
required to testify in court. His deposition will not take the
place of his the testimony in court. This is because the
taking of his deposition is only a discovery measure. The
deponent does not appear before the trial court to testify.
He gives his deposition not before a trial judge, but before

another person who is simply authorized to administer

oaths.

and the court can consider the deposition the

testimony of the witness.

For instance, if the case is pending here in Manila,

and there is a potential witness whose deposition is
required by the plaintiff, and this witness is also a
resident of Manila, can the plaintiff require this
potential witness to give his deposition?
Yes.
After the potential witness has given his deposition,
and later on, this witness receives a subpoena
requiring him to give testimony in open court, can
the potential witness file a motion to quash
subpoena as he had given a deposition of his
testimony?
No, as the giving of a deposition cannot take the place of
giving testimony in open court. The deponent can always
be compelled to give his testimony in open court. Though
his testimony may be a repetition of his deposition, it still
does not matter. He still has to give his testimony in open
court.

If a deposition has already been given, is it possible

that his deposition will be treated as his testimony
in open court?
That is also possible. If the deponent, if called upon by the
court to testify, will invoke his Viatory Right.

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

the use of the deposition he had previously given?
Deposition previously given can be used to impeach the
witness or corroborate the witness statements in
the testimony. This is the principle of evidence called
Laying The Predicate.
Laying the Predicate: Refer to statements, oral or
documentary, made by the witness sought to be
impeached on occasions other than the trial in which he is
testifying
Q: What are the elements of laying the predicate?
A:
1. The alleged statements must be related to the
witness including the circumstances of the times
and places and the persons present. If the
statements are in writing they must be shown to
him;
2. He must be asked whether he made such
statements and also to explain them if he admits
making those statements (Riano, p. 327).
Q: When is the rule on laying the predicate
inapplicable?
A: It is inapplicable if the prior inconsistent
statement appears in a deposition of the adverse
party, and not a mere witness, that adverse party
who testifies may be impeached without laying
the predicate as such prior statements are in the
nature of admissions of said adverse party.
(Regalado, Vol. II, p. 852, 2008 ed.)
Q: What is the purpose of laying the
predicate?
A: The purpose of which is to allow the witness to
admit or deny the prior statement and afford him
an opportunity to explain the same. Noncompliance with the foundational elements for
this mode of impeachment will be a ground for an
objection based on improper impeachment.
Over a timely objection, extrinsic evidence of a
prior inconsistent statement without the required
foundation is not admissible. (ibid)
Is it possible the deposition can be the
testimony of the witness?
Yes, if the witness is more than 100 km from the
court, and the witness invokes his viatory right,
the deposition is allowed to take the deposition

Where the witness resides more than one hundred (100)

kilometers from his residence to the place where he is to
testify by the ordinary course of travel, the witness may
invoke that he be not allowed to testify (Viatory Right). The
witness can ask the court that he be excused from giving
his testimony in open court. Even if the court issues a
subpoena, the witness may ignore such subpoena. He
cannot be cited in contempt for disobedience thereof. The
remedy of the court is to allow the taking of the
deposition, and the court can then consider the deposition
taken as his testimony. In other words, the fact that a
deposition has already been taken from a person does not
mean that the said person will be excused thereafter from
going to court in order to be a witness. That is possible
only in exceptional cases mentioned in Rules, one of them
being when the witness invokes his Viatory right. Or even
if there is no viatory right, if the witness/deponent is
physically incapable of going to court in order to testify,
the court can consider the deposition previously given as
his testimony in court.
TRIAL
Can a trial court decide a case properly and validly
if the court does not conduct a pre-trial or a trial for
that matter?
Yes. Although pre-trial is mandatory and though trial must
be had due to triable issues, the court can just skip these
stages and render judgment. Ex. Judgment by default,
judgment on the pleadings.
Judgment by default it is a judgment on the merits, no
trial and pre-trial is conducted. Under Rule 9, if the court
declares defendant in default since he did not file an
answer, one of the options is to immediately render a
judgment without requiring plaintiff to present his
evidence ex parte.
Supposedly the defendant filed his answer, can we still do
away with the trial?
Yes, we follow the special kinds of judgments whenever an
answer is filed as found under the rules.
Special judgments where an answer is filed by
defendant
There can be a judgment on the pleadings if the
answer does not raise any issue at all, or even admits
the allegations in the pleadings. There need to be no pretrial and trial. The plaintiff can move right away for a
judgment on the pleadings.
Judgment based upon a compromise. Parties entered
into a compromise agreement during pre-trial, the court
concurs the validity of the compromise agreement, the
court will render a judgment based upon compromise.
If you will notice that in the deliberation of the Rules on
certain special kinds of judgments, like judgment on the
pleadings, demurrer to evidence or summary judgment,
the core element of these special kinds of judgments is
that if there is a trial conducted by the court, it is not a full
blown trial.
Summary Judgment not a full-blown trial

Demurrer to Evidence not a full-blown trial, only of

the trial contemplated under Rule 30. Defendant does
not present evidence.
But in instances where there are genuine triable issues,
and the parties cannot agreed to the facts that should be
given to the court so it can decide the case properly, the
court will have to conduct a trial. The parties are then
given the opportunity to make use of evidentiary rules,
which is not required before trial. There is no offer of
evidence during pre-trial. At most, if there is evidence
presented during pre-trial, it is only for marking them as
exhibits. In a pre-trial brief, the parties just identify the
documental evidence, the real evidence and testimonial
evidence in the form of affidavits. What the parties doe in
pre-trial is to mark these as exhibits.
The trial of the case shall govern the pre-trial order. Only
the issues specified in the pre-trial order will be the order
of trial. But this Rule is not strict as the Rules allow
amendment to conform to evidence. If we follow strictly
the Rules and we do not allow amendment to conform to
evidence, then the only issues specified in the pre-trial
order will be tried.
If there are genuine triable issues, can the court do
away with the trial?
Yes. The parties can help the court avoid a trial if the
parties stipulates on facts that are in dispute. If the parties
submit to the court complete stipulation of facts, that the
court need only review the law applicable, then the court
can render a decision on the case. The court need not
conduct a trial. Trial is only a trial of factual issues. It
cannot be a trial of legal issues. This is because the court
is presumed to know the law applicable to a given state of
facts. The trial contemplated under Rule 30 is a trial of
facts in dispute. But if the parties decide that these facts
are no longer disputed, and they manifested to the court
that they agree fully to the existence of these facts, then
the trial may be avoided. The next stage will just be the
rendition of judgment.
In civil procedure, although there is a section in Rule 30 on
written stipulation on facts, the court liberally allows
verbal stipulations. Example, during the pre-trial
conference, everything stipulated upon may be done
verbally.But since the pre-trial conference is part of the
court proceedings, everything is recorded by the court
stenographer. The stenographer will transcribe the
records and what the court will readily decide that there
has been a stipulation of facts between the parties.
The order of trial in Rule 30 is the general rule. The order
of trial follows the sequence of argumentation of
pleadings. The affirmative side, the plaintiff, will first
present his side, and then the negative side, the
defendant, will set forth his defenses. Once the defendant
is done presenting his evidence, then the court may allow
parties to submit rebuttal evidence or even sur-rebuttal
evidence. But the court does not allow the presentation of
rebuttal evidence or sur-rebuttal evidence, the trial will
end after the defendant has rest his case.
Can the court terminate the case after the
defendant rests?
Rule 30 gives an option to the judge, to require the parties
to submit their respective memoranda to help the court in
arriving at a decision.
Does failure to submit memoranda when required to
do so result in dismissal of the case?

Yes, under Rule 17, for failure to obey lawful court orders.
The order of trial can be changed. If the court requires
defendant to present evidence ahead, then the reversal of
the order is had. If the defendant had set up the
affirmative defense of, for example payment, then the
order is reversed. Why is this only issue to be decided by
the court? Should not the court first decide on whether or
not the loan has really been extended by the plaintiff to
the defendant? In our Rules, if the defendant sets up only
an affirmative defense, that constitutes a hypothetical
admission to the allegations contained in the complaint.
That is found in Rule 6. So if the defendant hypothetically,
for purposes of trial, that the defendant incurred a loan,
then there really is no need for the plaintiff to prove the
existence of the loan. It is now the duty of the defendant
to show that the loan had been paid, so the order of trial is
changed. Thus, the defendant is allowed to present his
evidence first. Thereafter, the plaintiff does not find it
necessary to file rebuttal evidence, the court will consider
the case as submitted for decision.
Generally, when a trial is conducted by the court, it is the
judge appointed in that sala that should sit in the
proceedings. But, there are certain instances under Rule
30 when the judge may excuse himself from presiding the
case. They are all mentioned in the rules.
One is when the parties so agree, when the parties
appoints a commissioner for presentation of evidence.
Another is, when the branch clerk of court, upon
delegation of the judge, may sit when the parties agree to
an ex parte presentation of evidence. However, in these
instances, it is still the judge who will have to write and
sign the decision.
There are 2 rules concerned with how a court in a civil
case will conduct a trial.
1. Rule on consolidation and severance of cases
2. Trial by commissioner
Distinguish consolidation
A:
Consolidation
Involves several actions
having a common
question of law or fact
which may be jointly tried
(Sec.1, Rule 31).

from severance.
Severance
Contemplates a single
action having a number of
claims, counterclaims,
cross-claims, third-party
complaints, or issues
which may be separately
tried.

Consolidation:
1. several cases
2. similar issues, common question of fact
3. pending in the same court
What are the requisites for consolidation?
A:
1. Actions involving a common question of law or fact; and
2. There must be at least 2 actions pending before the
same court (Sec.1, Rule 31).
Q: What are the ways of consolidating cases?
A:
Recasting the
Consolidation
Test-Case
Cases
Proper
Method

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

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

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

Q: What is the rule on consolidation of cases?

A:
GR: Consolidation is discretionary upon the court to avoid
multiplicity of suits, guard against oppression or abuse,
prevent delay, clear congested dockets, and simplify the
work of the trial court and save unnecessary costs and
expenses.
XPNs: Consolidation becomes a matter of duty when:
1. If two or more cases are pending before the
same judge; or
2. If filed with the different branches of the same
RTC and one of such cases has not been partially
tried. (Raymundo v. Felipe, G.R. No. L-30887, Dec.
24, 1971)
Q: When may civil actions be suspended?
A:
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 (Sec. 8, Rule 30; Art. 2030, NCC).
Let us say there are 3 cases involving different parties, but
all involve a common question of fact or law, pending in
the same court, the court can issue an order of
consolidation of the cases.
Consolidation of cases in different salas in a multi-sala
court such as the Regional Trial Court of Manila: The
internal rules of RTCs will be followed. The judge in one
branch cannot issue an order directing the other judges to
agree to the consolidation of cases, as there is a need to
coordinate with each branch first. One judge cannot simply
issue an order to be obeyed by another judge of the same
level. The internal rules of the RTC, where there are cases
to be consolidated but which are assigned to different
branches, is that if there is a consolidation consented by
the judges, it will be tried by the sala with the lowest
docket number.
If one case is in Manila RTC, the other in Bulacan RTC, both
cases being those that can be validly consolidated, then
the Supreme Court may order consolidation.
The opposite of consolidation is severance of several
issues contained in one complaint. A trial court is also
given the authority to tell the parties that the trial to be
conducted only for the purpose for hearing either a 3rd
party complaint, a counterclaim or a crossclaim,
depending upon the discretion of the court
Trial by Commissioners

The language used in the Rule is not mandatory. This is

upon discretion of the court.
Exceptional circumstances where there is
mandatory appointment of commissioner:
1. expropriation proceedings, for determining just
compensation
2. partition cases, where there is a need to determine how
the property will be divided between co-owners
3. Rule 39, Sec. 36 and 37 When the judgment was not
executed fully or no execution was had
SEC. 36. Examination of judgment obligor when
judgment unsatisfied
SEC. 37. Examination of obligor of judgment
obligor. (in case partial satisfaction was had)
4. Settlement of estates of deceased persons, in statute of
non-claims, money claims will have to be submitted to the
settlement court within the statute of non-claims, and will
have to be responded to by the executor or administrator.
If administrator of the estate can contest the validity of
these claims, these claims will become contested claims,
then the court may appoint a commissioner to determine
these contested claims.
Q: What is the statute of non-claims?
A: It is a period fixed by the courts for the filing of claims
against the estate for examination and allowance.
(Herrera, Vol. III-A, p. 132, 2005 ed.)
Q: When should claims be filed?
A:
GR: Within the time fixed in the notice which shall not be
more than 12 months nor less than 6 months after the
date of the first publication. Such period once fixed by the
court is mandatory. Otherwise, the claims are barred
forever.
Note: Where an executor or administrator commences an
action, or prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set forth by
answer the claims he has against the decedent, and
mutual claims may be set off against each other in such
action. (Sec. 5, Rule 86)
XPN: Belated claims.
Q: What is the rule on Belated Claims?
A: Belated claims may be filed even beyond the period
fixed by the court:
1. On application of a creditor who has failed to file his
claim within the time previously limited, at any time before
an order of distribution is entered, the court may, for just
causes, allow such claim to be filed not exceeding 1
month from the order allowing belated claims; or
(Sec. 2 , Rule 86)
2. Where the estate filed a claim against the creditor
or claimant who failed to present his claim against
the estate within the period fixed by the probate
court for the settlement of such claims, the creditor
will be allowed to set up the same as a counterclaim
to the action filed by the estate against him.
Note: Statute of non-claims supersedes the Statute
of Limitations insofar as the debts of deceased
persons are concerned because if a creditor fails to
file his claim within the time fixed by the court in
the notice, then the claim is barred forever.
However, both statute of non-claims and statute of
limitations must concur in order for a creditor to
collect.

JUDGMENTS
Rule 36, Sec. 1 Formal Requisites of a valid judgment or
final order:
1. written personally and directly by the judge
2. signed by the judge
3. given to the branch clerk of court
4. includes basis from factual findings and conclusions of
law
Shimizu vs. Magsalin
A final order of dismissal under Rule 17, a dismissal
with prejudice, is void if there is no explanation how
and why the case was dismissed by failure to
prosecute.
Q: What are the requisites of a valid judgment?
A:
1. Authority of the court to hear and determine the case.
2. Jurisdiction over the parties and the subject matter
3. The parties must have been given an opportunity to
adduce evidence.
4. The evidence must have been considered by the
tribunal in deciding the case.
5. The judgment must be in writing, personally and
directly prepared by the judge.
6. The judgment must state clearly the facts and the
law on which it is based, signed by the judge and
filed with the clerk of court.
NOTE: Only for decisions and final orders on merits and
does not apply to those resolved through incidental
matters.
Final order there should a adjudication upon the
merits.
A case is pending in RTC Bulacan under Judge A. He
presided during the presentation of evidence by
both parties. After presentation of evidence, Judge
A retires. Who will decide the case?
The successor judge takes over and decides the case.
If the former judge makes the decision and turned it over
to the clerk of court, who then promulgates it and sends
the said decision by mail, that judgment is void.
What if Judge A is transferred from RTC Bulacan to
RTC Manila, can he pen the decision and send it to
his former sala?
Under the old judiciary act, that is a valid judgment. Under
the old judiciary act, if the judge who fully tried the case is
subsequently transferred, he retains authority to try the
case and render a valid judgment thereon.
What if Judge A is promoted to become a justice of
the CA, can he validly pen the judgment?
No. He can no longer decide the case. It is only when the
trial judge who has heard the case is given a new
assignment to a coordinate court shall the Judiciary Act of
1948 will give him authority to render a valid decision.
Entry of judgment takes place by operation of law.
Rule 36.
This is a very important rule insofar as judgments are
concerned. Now, we have a new concept of entry of
judgment. Under Rule 36, Entry of Judgment takes place by
operation of law. Even if there is no physical or actual
entry of judgment, under Rule 36, the judgment is deemed
entered upon the expiration of the period to appeal if no
appeal is perfected. Hence, if no appeal is perfected, right
after the expiration of the 15/30-day period, that judgment
is AUTOMATICALLY entered, and becomes final and
executory. Even if the clerk of court enters that in the
records a year later, it is not the physical entry on the

record by the clerk of court that will reckon the entry of

judgment.
Why do we consider entry of judgment as a very
important procedural principle?
The term entry of judgment is a role if we follow Rule 39,
Execution of Judgments. In Rule 39, if a judgment has
become final and executory, then the court has the
ministerial duty to grant a motion for execution and to
order execution of the judgment. In Rule 39 also, there is
a period fixed for that judgment to be executed. The first
five years from entry is the period to execute the judgment
via a motion, and the second 5-year period is for the
revival of the judgment. We are more interested in the first
5-year period within which to execute the judgment
through a motion.
If we reckon period under Rule 39, insofar as the first 5year period is concerned, it is 5 years from entry of
judgment. This is why the principle of entry of judgment is
very important in implementing the succeeding procedural
principles relating to execution of judgment, and also in
determining if a particular remedy has been availed of on
time.
For instance, under Rule 38, Relief from Judgment. If you
recall, relief of judgments has 2 periods to be taken into
account, 60 days from notice and 6 months from ENTRY of
judgment. The period speaks of availment of certain
remedies they are all reckoned from entry of judgment.
So, do not forget that entry of judgment under our present
rules takes place by operation of law, upon the expiration
of the period to appeal, if no appeal is perfected. The
judgment is automatically entered under the provisions of
Rule 36.
Q: What are those which are not considered as
decisions?
A:
1. Resolutions of Supreme Court denying the petitions to
review decisions of Court of Appeals.
2. Minute Resolutions if issued by SC denying or
dismissing a petition or a motion for reconsideration for
lack of merit, it is understood that the challenged decision
or order is deemed sustained.
3. Interlocutory Orders those that determine incidental
matters that do not touch on the merits of the case or put
an end to the proceedings. E.g. Order denying a motion to
dismiss, granting an extension of time or authorizing an
amendment.
Note: Appeal is not proper to question an interlocutory
order. The proper remedy to question an interlocutory
order is a petition for certiorari under Rule 65.
Q: What is a judgment without trial?
A: The theory of summary judgment is that although an
answer may on its face appear to tender issuesrequiring
trialyet if it is demonstrated by affidavits,
depositions, or admissions that those issues are not
genuine, but sham or fictitious, the Court is justified
in dispensing with the trial and rendering summary
judgment for plaintiff. The court is expected to act
chiefly on the basis of the affidavits, depositions,
admissions submitted by the movants, and those of
the other party in opposition thereto. The hearing
contemplated (with 10-day notice) is for the purpose of
determining whether the issues are genuine or not, not to
receive evidence on the issues set up in the pleadings. A
hearing is not thus de rigueur. The matter may be

resolved, and usually is, on the basis of affidavits,

depositions, admissions. Under the circumstances of
the case, a hearing would serve no purpose, and clearly
unnecessary. The summary judgment here was justified,
considering the absence of opposing affidavits to
contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14,
1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17,
1989).
The other sections of Rule 36 give us the certain
classifications of judgments; summary judgment and
several judgment.
Separate judgment(Sec. 5, Rule 36) It is one
rendered disposing of a claim among several others
presented in a case, after a determination of the issues
material to a particular claim and all counterclaims arising
out of the transaction or occurrence which is the subject
matter of said claim.
Several judgment(Sec. 4, Rule 36) It is one rendered
by a court against one or more defendants and not
against all of them, leaving the action to proceed
against the others.
The need for this classification of judgment stems from the
principle of civil actions that encourage joinder of courses
of action. If there are several causes of action embodied in
a complaint, it is proper for the court that after the trial of
a particular cause of action, it should render a judgment
for that particular cause of action. If there is joinder of
parties, the court has also the prerogative to render a
separate decision concerning a particular party if his claim
has already been terminated when the presentation of
evidence on his claim is finished. And what the court does
is only to wait for the presentation of evidence concerning
the claim of other parties, the court can also render a
decision separately.
These are decisions that are exceptional, in the sense that
we expect a trial court to make only one judgment in one
particular case. It is unusual for the court to render several
decisions involving one particular case. That is why, even
if Rule 36 authorizes the court to promulgate separate or
several decisions, if you will go to Rule 41, Appeal From
The RTCs, in Section 2, it is mentioned that if the court
renders separate or several judgments, although we call
these as judgments, they are not appealable. The parties
will have to wait until the principal action is finally resolved
before they can even think of appealing the case. So,
although Rule 36 designates these as judgments, they are
not appealable. The court will have to render a principal
decision later on, after everything is concluded.
So, if that is a separate judgment involving once cause of
action, the winning party or losing party cannot appeal.
These parties will have to wait until the court finally
decides the case in its entirety, unless the court allows an
appeal if the party is entitled. Usually, the court does not
allow it, because that will lead to a situation where several
appeals emanate from one case, which is also frowned
upon by the SC. There should only be one decision in a
particular case, and there should be one appeal if a party
decides to appeal.
This is also the reason why the decisions that are classified
in Rule 36, Separate Judgments and Several Judgments,
are sometimes referred to as interlocutory judgments,
because they cannot be appealed by express provision of
Rule 41, although they can be rendered validly by the
court.

Interlocutory Orders those that

determine incidental matters that do not
touch on the merits of the case or put an
end to the proceedings. E.g. Order
denying a motion to dismiss, granting an
extension of time or authorizing an
amendment.
So if you come across that term in your examinations,
interlocutory judgments, and you find the use of
interlocutory and judgment to be in conflict with one
another, you apply the following view: Because a judgment
cannot be interlocutory. A judgment by the very term
should be a judgment of the merits. But if you characterize
a judgment as interlocutory, that is only to emphasize that
the judgment, although it resolves the merits of the case,
cannot be appealed without the permission of the trial
judge.
Rule 33
Rule 33 begins with an enumeration of special kinds of
judgments: Judgment on Demurrer to Evidence, Judgment
on the Pleadings and Summary Judgments. There are other
kinds of judgments not found under Rules 33, 34 and 35.
Several are mentioned in Rule 41, Section 1:
Judgment by Consent, Judgment upon a Compromise,
Judgment by Confession.
There is another one in Rule 51, a Memorandum Decision.
Memorandum decision is one in which the appellate court
may adopt by reference, the findings of facts and
conclusions of law contained in the decision appealed
from.
There are judgments by virtue of jurisprudence: Judgment
nunc pro tunc, provisional judgment, etc.
Q: What are the kinds of judgment?
A:
1. Judgment upon compromise It is one conferred on
the basis of a compromise agreement entered into
between the parties.
2. Judgment by confession It is one rendered by the
court when a party expressly agrees to the other
partys claim or acknowledges the validity of the
claim against him.
3. Judgment upon the merits It is one that is rendered
after consideration of the evidence submitted by
the parties during the trial of the case.
4. Clarificatory judgment It is rendered to clarify an
ambiguous judgment or one difficult to comply with.
5. Judgment nunc pro tunc (Now for then) A judgment
intended to enter into the record the acts which had
already been done, but which do not appear in the
records. Its only function is to record some act of the
court which was done at a former time, but which was not
then recorded, in order to make the record speak the
truth, without any changes in substance or any
material respect.
6. Judgment sin perjuicio Judgment without a
statement of the facts in support of its conclusion
to be later supplemented by the final judgment. This
is not allowed.

7. Judgment by default (Sec. 3, Rule 9) Rendered by

the court following a default order or after it
received, ex parte, plaintiffs evidence.
8. Judgment on the pleadings (Rule 34) Proper when an
answer fails to tender an issue because of a general
or insufficient denial of the material allegations of
the complaint or when the answer admits the
material allegations of the adverse party's pleading.
9. Summary judgment (Rule 35) One granted by the
court for the prompt disposition of civil actions wherein it
clearly appears that there exists no genuine issue
or controversy as to any material fact.
10. Several judgment (Sec. 4, Rule 36) It is one rendered
by a court against one or more defendants and not
against all of them, leaving the action to proceed
against the others.
11. Separate judgment (Sec. 5, Rule 36) It is one
rendered disposing of a claim among several others
presented in a case, after a determination of the issues
material to a particular claim and all counterclaims arising
out of the transaction or occurrence which is the subject
matter of said claim.
12. Special judgment (Sec. 11, Rule 39) One which can
only be complied with by the judgment obligor
because of his personal qualifications or
circumstances or one that requires the performance
of an act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule 39)
Applicable in cases of:
1. Conveyance, delivery of deeds, or other
specific acts, vesting title;
2. Sale of real or personal property;
3. Delivery or restitution of real property;
4. Removal of improvements on property
subject of execution; or
5. Delivery of personal property.
14. Judgment on demurrer to evidence (Rule 33) A
judgment rendered by the court dismissing a case upon
motion of the defendant, made after plaintiff has rested his
case, on the ground that upon the facts presented
by the plaintiff and the law on the matter, plaintiff
has not shown any right to relief.
15. Conditional judgment It is one the effectivity of
which depends upon the occurrence or nonoccurrence of an event.
16. Final judgment One which disposes of the whole
subject matter or terminates the particular
proceedings or action, leaving nothing to be done
by the court but to enforce by execution what has
been determined.
But the principal classification of judgments is the one
given in the Rules, particularly these Rules which speak
about Special Judgments.
What is so special about these three decisions of
the court?

As we said earlier, they are special as they are rendered by

the court without having conducted a full blown trial as
conceived in Rule 30.
DEMURRER TO EVIDENCE IN CIVIL CASES
Judgment on Demurrer to evidence only plaintiff
presented evidence. (judgment of dismissal based on
insufficiency of evidence to support the claim)
If motion for demurrer to evidence is denied, defendant
must present his evidence, judgment thereon will be an
ordinary judgment.
When the Plaintiff rests his case, the Defendant, instead of
presenting his evidence, files a Motion for Judgment on
Demurrer to Evidence. The defendant asks the court for an
order to dismiss the case based only on the ground of
failure of the plaintiff to show right of relief, that there is
insufficiency of the plaintiffs evidence. There is no
preponderance of evidence to support the plaintiffs claim.
The court will have to resolve the motion. The court will
either grant or deny the motion. If the court denies the
motion, the court in effect tells the defendant that the
plaintiffs evidence is adequate. What the defendant has to
do now is not to appeal, because the denial of a motion for
judgment on demurrer to evidence is interlocutory. No
appeal is allowed.
Can the defendant resort to Rule 65 on the ground that the
court has gravely abused its discretion amounting to lack
or excess of jurisdiction?
He can try.
Under the Rules, if the defendants motion for judgment on
demurrer to evidence is denied, it is the duty of the
defendant to present now his own evidence. He cannot
appeal it, he cannot even think about appealing, he just
have to present his own evidence.

Whe
n to
file
Grou
nds
If
deni
ed
If
gran
ted

Demurrer to
Evidence (Rule 33)
After the plaintiff
rests its case or after
the completion of the
presentation of
evidence
That upon the facts
and the law, the
plaintiff has shown no
right to relief
The defendant may
present his evidence.
The complaint may
NOT be filed. The
remedy of the
plaintiff is to appeal
from the dismissal.

Remember the rules of demurrer to evidence and the other

principles that derive from the granting of demurrer to
evidence in a civil case. You always compare them to
demurrer in a criminal case. These topics are usually
involved in Bar examination.
In a civil case, if a defendant files a motion for the
dismissal of the complaint based on insufficiency of
evidence, and that motion is denied, what the defendant

will do is to go ahead with the trial and present his

evidence. And after the defendant has rested, the court
will render the decision. The decision, if the order for
demurrer to evidence is denied, is just an ordinary
judgment on the merits of the case under Rule 36. It is no
longer a special type of a judgment.

If
denie
d

The Defendant may

proceed to adduce his
evidence

If the
plaint
iff
appe
als
from
the
order
of
dismi
ssal

If the court finds

plaintiffs evidence
insufficient, it will
grant the demurrer
by dismissing the
complaint. The
judgment of dismissal
is appealable by the
plaintiff. If plaintiff
appeals and
judgment is reversed
by the appellate
court, it will decide
the case on the basis
of the plaintiffs
evidence with the
consequence that the
defendant already
loses his right to
present evidence. No
res judicata in
dismissal due to
demurrer
The plaintiff files a
motion to deny
motion to demurrer to
evidence.

But if the trial court grants the motion, it means it will

order the dismissal of the case. The dismissal is a final
order, in fact a judgment on the merits of the case. The
winning party is the defendant. The plaintiff can appeal the
dismissal.
Usually, the if the trial court is the RTC, it will be brought to
the CA. So, it is brought to the CA. The CA will have to
review the case based solely on the records transferred to
it by the RTC. The records will show that the defendant has
not presented any evidence at all. Right away, the
defendant will be at a disadvantage when the case is
reviewed by an appellate court. The court will review only
the evidence presented by the plaintiff. There is a great
possibility that the CA will not agree with the trial court,
and will reverse the dismissal of the case.
If the CA reverses the order of dismissal by demurrer to
evidence and the CA tells the parties that the evidence
submitted is adequate, CA simply render its own decision
on the merits of the case, relying solely on the evidence
submitted by the plaintiff.
The defendant cannot ask the CA to present his evidence.
It is not proper since the evidence should have been
presented in the trial court. The CA, as a reviewing court,
will only rely on the records transmitted to it by the RTC.
The defendant cannot argue that the CA is authorized to
receive evidence under the provisions of BP 129. Under BP
129, the CA is allowed to receive evidence if it acts in
exercise of its original jurisdiction, which is not the case in
this instance as the CA is acting under is appellate
jurisdiction. Although B.P. 129 also confers authority on the
CA to receive evidence even in appeal of cases from the
lower court, the conferment of authority while acting as an
appellate court is only on one instance, only on grant of
motion for new trial based on NDE. It will not apply to
demurrer to evidence. The evidence the defendant will
present is hardly NDE as the defendant had these pieces of
evidence during the trial in the RTC. This is why in
demurrer to evidence in civil cases, the defendant waives
his right to present his evidence when the trial court
grants his motion and the case is dismissed but the
dismissal is reversed on appeal.
Compare this to the demurrer to evidence present in a
criminal case.
Q: Distinguish demurrer to evidence in civil cases
from demurrer to evidence in criminal cases.
A:
Civil Case
Criminal Case
Leav
Not required
With or Without
e of
court
If
Judgment on the
Judgment on the
grant
merits; The Plaintiff
merits; The Plaintiff
ed
may appeal from the
cannot make an
order of dismissal of
appeal from the order
the case
of dismissal due to
the constitutional
prohibition against
double jeopardy

How
can
demu
rrer
be
denie
d?

The Defendant may

adduce his evidence
only if the demurrer is
filed with leave of
court.
If there was no leave
of court, accused can
no longer present his
evidence and submits
the case for decision
based on the
prosecutions
evidence
If the court finds the
prosecutions
evidence insufficient,
it will grant the
demurrer by
rendering judgment
acquitting the
accused. Judgment of
acquittal is not
appealable; double
jeopardy sets in

The court may motu

propio deny the
motion.

After the prosecution has rested, the accused can also file
a motion for judgment on demurrer to evidence. But there
is one requirement in a criminal case not found in a civil
case: the accused should get leave of court if the accused
wants to preserve his right to present evidence once the
motion is denied by the trial court. Failure to get leave of
court before filing of the motion, and the motion is
subsequently denied, then the accused has waived his
right to present his evidence in the trial court. The trial
court will not allow the accused to present his evidence,
and the next phase will be a judgment of conviction,
meaning that the evidence presented by the prosecution is
adequate to convict the accused, that the evidence has
met the quantum of evidence, which is proof beyond
reasonable doubt. No leave of court is required in
demurrer to evidence in civil cases.
In a criminal case, demurrer can be initiated either by the
accused or the court itself motu propio. The idea of
demurrer to evidence can come from the court. So if the
prosecution has rested, the court can even tell the accused
to file a motion for judgment on demurrer to evidence. If
the idea comes from the court, the accused should file
because it is the court who already encourages you to file
the motion. That means to say, even to the court, the
prosecutions evidence failed to meet the quantum of
evidence required to convict the accused. In a civil case,

the court cannot initiate the idea as to demurrer to

evidence. It should come from the mind of the defendants
counsel.
If in a criminal case, the demurrer to evidence is granted,
the information will be dismissed, which is tantamount to
acquittal of the accused. The prosecution can no longer
appeal, nor can Rule 65 be availing, both being due to
prohibition against double jeopardy. Take note, there can
be no appeal as to the dismissal of the information, but
there can be an appeal as to the civil aspect of the case. In
a civil case, if the court dismissed the civil action, the
plaintiff may appeal the dismissal.
If we allow the civil aspect of the criminal case already
dismissed to be appealed, there is a chance that the
appellate court will find merit in the appeal of the private
complainant, and therefore the appellate court will allow
damages to be awarded to the private complainant. The
satisfaction of these damages will be directed against the
accused, who has been acquitted from the crime. In a
criminal case, an accused may be acquitted of the crime,
but may be found civilly liable for any injury resulting
therefrom. This is because, the conviction of the accused
requires a higher degree of proof to be met (proof beyond
reasonable doubt), whereas a lower degree of proof is
required for proving liability for civil damages (mere
preponderance of evidence).
JUDGMENT ON THE PLEADINGS
Q: When is there a judgment based on pleadings?
A: Where an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse partys
pleading, the court may, on motion of that party, direct
judgment on such pleading.
Note: Judgment must be on motion of the claimant. It
cannot be rendered by the court motu propio.
Q: What are cases where judgment on the pleadings
will not apply?
A:
1. Actions for the declaration of nullity of a marriage
2. Actions for annulment of marriage
3. Actions for legal separation
Note: in the above cases, the material facts alleged in the
complaint shall always be proved (Sec. 1, Rule 34)
Judgment on the pleadings
Judgment on the pleadings (Rule 34) Proper when an
answer fails to tender an issue because of a general or
insufficient denial of the material allegations of the
complaint or when the answer admits the material
allegations of the adverse party's pleading.
Defendant filed a motion for judgment of the
pleadings, although the answer was one without a
counterclaim with meritorious defenses. What will
be the effect thereof?
SC held that if the movant defendant is asking for
judgment on the pleadings, he is deemed to be admitting
all the allegations in the complaint.
In Judgment on the pleadings, there is an answer filed by
the defendant. But that answer admits the allegations in
the complaint. Or, even if the answer in form denies the
allegations in the complaint, the denial is not specific as
required in the Rules. We are made familiar again with the
principle in a civil case that when a general denial is made,

that is deemed to be an admission, which is the reason

why a court need not conduct a pre-trial nor a trial.
If the plaintiff receives a copy of the answer which does
not set up any defenses at all, but instead admits all the
allegations in the complaint, what the plaintiff needs to do
is to file a motion for a judgment on the pleadings.
In other words, if we follow the inherent nature of a
judgment of the pleadings, the movant should be the
plaintiff in a complaint or a permissive counterclaim or
cross-claim. There should be a motion initiated by the
plaintiff asking the court for a judgment on the pleadings.
Is there any prohibition against the defendant who
has filed an answer to also move for judgment on
the pleadings?
There is really nothing said in the Rules that says about a
defendant, upon filing of his answer, being prohibited to
file a motion for a judgment on the pleadings. But it seems
to be a crazy idea for a defendant to himself move for a
judgment on the pleadings. In a case brought to the SC
where it was the defendant himself who moved for a
judgment on the pleadings, although the answer was
purely an answer without any counterclaim, cross-claim or
third party complaint, but containing several meritorious
defenses, the SC ruled that if a defendant is a movant for a
judgment on the pleadings, the defendant is deemed to
have admitted the allegations contained in the complaint.
So it is really very risky for a defendant to be a movant for
a judgment on the pleadings. Even if his answer is properly
crafted, even if there is a specific denial, if it was the
defendant that filed a motion for a judgment on the
pleadings, the defendant will be considered to have
admitted all the allegations in the complaint. So, the court
will render a judgment in favor of the plaintiff.
A judgment on the pleadings is also a judgment on the
merits. It should comply with the essentials of a valid
judgment under Rule 36.
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: A summary judgment or accelerated judgment is a
procedural technique to promptly dispose of cases where
the facts appear undisputed and certain from the
pleadings, depositions, admissions and affidavits on
record, of for weeding out sham claims or defenses at an
early stage of the litigation to avoid the expense and loss
of time involved in a trial. Its object is to separate what is
formal or pretended denial or averment from what is
genuine and substantial so that only the latter may subject
a party-in-interest to the burden of trial. Moreover, said
summary judgment must be premised on the absence of
any other triable genuine issues of fact. Otherwise, the
movants cannot be allowed to obtain immediate relief. A
genuine issue is such issue of fact which requires
presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim (Monterey Foods Corp.
vs. Eserjose, GR 153126, Sept. 11, 2003).
Q: What are the requisites of summary judgments?
A:
1. There must be no genuine issue as to any material fact,
except for the amount of damages; and
2. The party presenting the motion for summary judgment
must be entitled to a judgment as a matter of law.
Q: When is a claimant allowed to file for summary
judgment?

A: A party seeking to recover upon a claim, counterclaim,

or cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions
for a summary judgment in his favor upon all or any part
thereof (Sec. 1, Rule 35).
Q: When is a defendant allowed to file for summary
judgment?
A: A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory relief is sought may, at
any time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all
or any part thereof (Sec. 2, Rule 35).
JUDGMENT ON THE PLEADINGS VERSUS SUMMARY
JUDGMENTS
Judgment on
Summary judgments
the pleadings
Movant
Plaintiff only
Either plaintiff or
defendant
Answer
Answer does not
There is an issue
tender an issue
tendered in the answer,
but it is not genuine or
real issue as may be
shown by affidavits and
depositions that there
is no real issue and that
the party is entitled to
judgment as a matter
of right
Notice
Movants must
Opposing party is given
give a 3-day
10 days notice
notice of hearing
Termin
Entire case may
May only be partial
ation
be terminated
Who
Only the plaintiff
Either the plaintiff or
can file
or the defendants
the defendant may file
as far as the
it
counterclaim,
cross-claim or
third-party
complaint is
concerned can file
the same
Basis
Based only on the
Based on the
of the
pleadings alone,
pleadings, supporting
judgme
hence, only on
affidavits, depositions
nt
the complaint and
or admissions ( see
the answer
Sec. 1, Rule 35).
If you compare the provisions of a judgment on the
pleadings to that of a summary judgment, as contained in
Rule 34, we will immediately notice that there is a section
which talks about a Summary judgment by plaintiff and a
Summary judgment by defendant. Unlike in judgment on
the pleadings, where we expect the movant to be a
plaintiff, in a summary judgment, the law gives either
parties the option to file a motion for summary judgment.
This motions are expressly recognized in the rules.
Q: When is a claimant allowed to file for summary
judgment?
A: A party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions
for a summary judgment in his favor upon all or any part
thereof (Sec. 1, Rule 35).

Q: When is a defendant allowed to file for summary

judgment?
A: A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory relief is sought may, at
any time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all
or any part thereof (Sec. 2, Rule 35).
Another term for summary judgment under American
Rules is an accelerated judgment. It seems to be similar to
that in acceleration clause.
Why will the court render a summary judgment?
The court will not conduct a full blown trial envisioned in
Rule 30. In a summary judgment designed not to conduct
full-blown trial, according to jurisprudence, there is an
issue in the answer submitted by the defendant, but it
turns out to be a sham issue. Therefore, there is no need
for the court to conduct a full-blown trial on a sham issue.
Whether or not the issue is genuine will depend upon the
circumstances of the case.
An instant example of a summary judgment rendered by a
court is that where the court found that the issue is not
really genuine although there is really an issue raised in
the answer. A complaint was filed by the plaintiff for an
unpaid loan. The complaint carried with it an actionable
document attached to the complaint, a printed promissory
note. The promissory note contained a blank as to the date
of the maturity of the loan, which was unfortunately not
accomplished. So, the promissory note is indeterminate as
to the date of maturity. The defendant filed an answer and
set up the defense that the filing of the complaint was
premature because the debt has not matured, and the
defendant pointed out that the blank wherein the date of
maturity was supposed to be indicated has no entry. The
defendant interposed that the court should first fix the
maturity date of the complaint before the plaintiff can file
a complaint for recovery of the loan. The plaintiff filed a
motion for summary judgment. And the court agreed with
the plaintiff that the defense set up by the defendant, that
the maturity of the loan has not yet happened, is really a
sham issue, as the issue is in conflict with the provisions of
substantive law. The SC said that if that is a promissory
note without a date fixed as to maturity, that is a note
payable on demand, as provided in the NCC. If there is
already a demand made by the creditor, and the debtor
failed to comply with that demand, it means there is
already a breach of the obligation by the debtor.
In as similar case where the plaintiff moved for summary
judgment because the answer of the defendant does not
raise any issue, the court found merit in the motion. But
when the court prepared the order granting the motion for
summary judgment, the court mentioned that the motion
is one that is asking for a judgment on the pleadings. The
dispositive portion of the order called the judgment as on
for judgment on the pleadings in favor of the plaintiff,
directing the defendant to pay.
The defendant challenged the validity of the judgment,
saying that what the court should have rendered should be
a summary judgment, because the court made a finding
that the issue is not genuine, and yet the court issued a
judgment on the pleadings, and therefore the judgment is
void. SC held that whether it is called a summary
judgment or judgment on the pleadings, it does not really
matter at all, as there is an adjudication on the merits. The
error was purely formal. SC said that the error in the
determination whether the judgment was a summary
judgment or a judgment on the pleadings will not prejudice
the defendant, and therefore cannot be declared as void.

After all, it is a judgment that complies with the

requirements of Rule 36. There is a determination of the
rights and obligations of the parties involved in the cause
of action.
There is a summary judgment that is similar to separate
judgment and several judgment as it is interlocutory. If you
read the Rule on summary judgment, there is such a thing
as partial summary judgment. If the summary judgment is
a partial summary judgment, that is an interlocutory order,
as it does not dispose of the case completely. It disposes
only of the issue that was raised before the court. It cannot
be appealed.
In a summary judgment, unlike in a judgment on the
pleadings, the court will conduct a summary hearing. In
judgment on the pleadings, the court will not conduct a
hearing at all, as the court will simply rely on the contents
of the complaint and the answer. Since there is an issue
raised by the defendant in summary judgment, the court
will need to conduct a summary hearing in order to
determine whether that is a sham issue or a genuine issue.
There is need by the parties to present evidence in order
to support their respective issues. The parties could
present affidavits, depositions, or any other document that
the parties may present. What the court will not allow is a
full-blown hearing on the matter as to whether the issue is
genuine or not. This issue will have to be proven only by
documentary evidence, affidavits or evidence taken under
modes of discovery.
The SC has abandoned the old doctrine that summary
judgments cannot be available in actions for recovery of
property. SC has decided several cases which affirmed the
availability of summary judgments involving recovery of
title to or possession of real property. It is available in real
or personal civil actions as long as the requisite that the
issue is not a genuine issue is present.
JUDGMENT BASED ON COMPROMISE
Aside from the special kinds of judgments provided for in
the Rules, there is a special kind of judgment provided for
in the NCC. There are several provisions in the NCC which
encourage the parties to enter into an amicable settlement
or compromise. The NCC considers a compromise as a
contract between the parties, and therefore, if the parties
entered into a contract where they signed a compromise
agreement, they do not have to submit that agreement to
a court for approval. According the SC, if there is a
compromise agreement signed by the parties, since that is
a contract, then that is the law binding between the
parties. There is no need for court approval to validate the
compromise agreement. For purposes of validity, we follow
the provisions of the NCC, it will be treated just like any
other contract. As long as the parties give their consent
freely, their consent is not vitiated, their signatures appear
in the agreement, that will be the contract between them,
that will be the law between the parties.
Approval by the court is not necessary for the validity of
the compromise agreement. Approval of the court is
necessary only for the execution of the compromise
agreement.
For instance, there is a case for recovery of 2M loan filed
by the creditor against the debtor. They both agreed to
settle their differences. They signed a compromise
agreement to the effect that the debtor fully recognizes his
obligation to the creditor, but they convert the payment of
the loan to that of payment in installments every quarter,
fixing the amount of installments. They do not submit the

compromise agreement for approval. The parties jointly

moved for the dismissal of the case, which the court
complied. The debtor subsequently commits a breach in
the payment of installments.
After the breach, can the creditor go back to the
court and ask for revival of the case?
No.
Can the creditor file a new case for collection
against the debtor for recovery of the installment or
of the whole account if in case there is an
accelerator clause?
Yes. It is not barred, as the cause of action of the creditor is
now different from the previous case filed. His claim is now
based on a compromise agreement, not a loan.
In order to enforce payment as provided in the written
compromise agreement, the creditor has to file a
complaint against the defendant debtor. They will have to
undergo the same process when the first case was filed
concerning the loan. But that is one case of a compromise
agreement which does not carry with it the approval of the
court.
The opposite is when there is a compromise agreement
signed by the parties, but this time, the parties do not
jointly move for the dismissal of the complaint, but instead
they submit the compromise agreement to the court for
approval. The court renders a decision based on the
compromise agreement. If the debtor commits a breach in
the payment as agreed upon, what the creditor can do is
to simply file a motion for execution in the court. The
judgment based upon a compromise is a judgment on the
merits. And under the NCC, a judgment based upon a
compromise is immediately executory. There is no appeal.
A judgment by the court based on a compromise
agreement cannot be appealed.
Does it mean to say that a party of a compromise
agreement has no recourse at all to challenge the
validity of the judgment based upon a compromise
agreement?
There is a remedy under Sec. 1 Rule 41. The defendant
may file a motion to set aside the compromise agreement
based on the ground of vitiated consent. That is the
remedy in order a judgment based upon a compromise.
Supposing the court does not set aside the
judgment notwithstanding the motion, can the
defendant appeal?
No. Under the Rules, a judgment based upon a
compromise agreement is inappealable. Also, the order
denying the motion is in the nature of an interlocutory
order which is inappealable.
Q: What is the remedy in cases where appeal is not
allowed?
A:
GR: In those instances where the judgment or final order is
not appealable, the aggrieved party may file the
appropriate special civil action under Rule 65 (Sec. 1 Rule
41).
There is a remedy given for such an order denying the
motion to set aside the judgment under a compromise.
Among those orders not appealable found under Section 1
of Rule 41 is 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, which can avail of the remedy provided
in this section. Thus, what Rule 41 says is that there must
be a Motion to Set Aside the Judgment of Compromise and
there must be a denial of the motion before a Rule 65
petition can be availed of. If the proponent immediately

files a Rule 65 petition assailing the validity of the

judgment based on a compromise agreement as well as
the compromise agreement itself, that petition will be
dismissed for noncompliance with the requirement under
Rule 65. There is still a plain, speedy and adequate remedy
that can be had in the form of a Motion to Set Aside the
Judgment of Compromise and the Compromise Agreement
founded on vitiated consent.
REMEDIES TO ASSAIL A JUDGMENT
Q: What are the available remedies to the aggrieved
party after rendition of judgment?
A: The remedies against a judgment may refer to those
remedies before a judgment becomes final and executory
and those remedies after the same becomes executory.
1. Before a judgment becomes final and executory, the
aggrieved party may avail of the following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the losing party
may avail of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari; and
d. Collateral attack of a judgment.
Compare the remedies available to a party in a civil case
to that in a criminal case. The consequences of availing a
remedy in a civil case might be different in criminal cases.
Also, there are remedies which are applicable in civil cases
which might not be applicable in a criminal case.
Remedies in a Civil Case:
The remedies would depend primarily on whether the
judgment has been or has not been entered.

Grounds for reopening civil cases: There are no

grounds given specifically in the rules. It is not
expressly recognized, it is just an accepted
remedy in jurisprudence. It is a remedy availed of
after trial has ended but before the judgment is
rendered. The purpose is for allowing the movant
to offer in evidence those that he may have
forgotten to present during the trial, or additional
evidence as the case may be.
Reopening of a case in criminal cases: This is
expressly recognized in criminal procedure. It can
be had even after the judgment has been
rendered, so long as judgment has not become
final and executory.
After judgment of conviction becomes final:
Habeas Corpus
Petition for Certiorari under Rule 65 in exercise of
judiciary under its equity jurisdiction
If the convict feels that his detention in prison, although
supported by a judgment of final conviction, is unlawful,
the remedy he may avail of is Habeas Corpus, not a
petition to annul judgment. The SC has made this very
clear. Rule 47 applies only to a civil case, it cannot apply to
a criminal case. The equivalent remedy in a criminal case
is a petition for habeas corpus. The SC in the exercise of its
equity jurisdiction cold also entertain a Petition for
Certiorari under Rule 65 even if the judgment of conviction
has become final and executory

If judgment has not been entered, the period to

appeal has not yet expired (15-30 days)
Remedies available :
Rule 37:
~Motion for New Trial
~Motion for Reconsideration
~Appeal

When can a petition for certiorari be had once the

judgment had become final and executory long
before?
It can be had when the petition is applied in order for the
judiciary to rectify a wrong under its equity jurisdiction. A
situation that calls for a special remedy will always be
answered by a petition for certiorari. A certiorari will
always be entertained as part of its equity jurisdiction.
Certiorari is a remedy in both a civil or criminal case in
order to challenge a final and executory judgment if the
situation calls for the SC to exercise its equity jurisdiction.
That is why in the enumeration of remedies, in either
criminal or civil case, we also include Certiorari under Rule
65.

If judgment has been entered:

~Rule 38 Motion for Relief From Judgment
~Rule 47 Motion for Annulment of judgment
~Rule 65 Certiorari, Prohibition and Mandamus (in
certain instances)

RULE 37 NEW TRIAL OR RECONSIDERATION

In criminal procedure, nothing is mentioned about a
pro-forma motion for new trial or reconsideration.

Remedies in a Criminal Case

Before judgment of conviction becomes final
~Motion for New Trial
~Motion for Reconsideration
~Appeal
~Reopening of a case due to NDE
Note: Reopening of a civil case is available but
before judgment is rendered. If judgment is
rendered, it is not available in a civil case.
Jurisprudence requires no judgment yet handed
down by the court, the time frame for availment
of this remedy is dependent upon the termination
of the trial. The termination of the trial starts the
period to move for this remedy. As long as the
judgment has not been rendered, any party can
move for reopening of the case.

Q: What is a pro- forma motion?

A: A pro- forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as
a motion intended to delay the proceedings (Marikina
Development Corporation v. Flojo, 251 SCRA 87).
In Rule 37, for civil cases, a motion for new trial or
reconsideration must strictly comply with the requirements
of a motion so that such motion will not fall under the
concept of a pro-forma motion.
Pro-forma motion for reconsideration in civil cases is
almost always denied; it could result to an instance where
a losing party moving that all remedies available will be
unavailable as sanction. A pro-forma motion for
reconsideration does not stop the running of the
reglementary period to appeal, and if the denial of such

motion comes after the expiration of the period to file an

appeal, remember that entry of judgment takes place by
operation of law under Rule 36. Upon entry of judgment,
movant/losing party loses the remedy of appeal and is left
only with the after judgment remedies of petition for relief
from judgment, annulment from judgment or a petition
under Rule 65 as remedies.
A motion for new trial or motion for reconsideration in civil
cases is always initiated by the losing party.
There is no pro forma motion for new trial or
reconsideration in a criminal case. The court cannot
simply discard the motion for new trial or reconsideration
for non-compliance, even if the motion does not comply
with the requirements of a motion. The motion for
reconsideration or new trial will always stop the
running of the period to appeal. The idea for the
accused to file motion for new trial or reconsideration
could come from the court. The court can even initiate a
new trial or reconsideration as long as the accused gives
his consent.
(Rule 37)Grounds for motion for new trial is
completely different from grounds for
reconsideration. This is the reason why these
motions are distinct and different from one another.
New Trial
1. Extrinsic fraud, accident, mistake or excusable
negligence (FAME) which ordinary prudence could not have
guarded against and by reason of which the rights of the
aggrieved party was impaired; or
2. Newly discovered evidence, which could not with
reasonable diligence, have been discovered and produced
at the trial, and which if presented, would probably alter
the result (Sec. 1, Rule 37).
Reconsideration
1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or
final order; or
3. The decision or final order is contrary to law (Sec. 1,
Rule 37).
Let us say that a losing defendant/accused is
advised by his counsel that they have 3 remedies
while the period of appeal was running, motion for
reconsideration, motion for new trial and appeal.
The defendant/accused told the counsel to avail of
all three. Thus, the counsel filed a motion for new
trial, a motion for reconsideration and lastly, an
appeal. The trial court received all three. The
appeal was duly perfected. What remedy will the
court entertain?
SC had held that if the aggrieved party files or perfects an
appeal during the pendency of his motions for new trial
and reconsideration, the motions shall be deemed
abandoned.
It is really inconsistent for an aggrieved party to file a
motion for new trial or reconsideration, and while waiting
for the resolution of his motion he perfects an appeal. It
will render the motions academic. The court, upon
perfection of the appeal and upon payment of the docket
fee, will lose jurisdiction over the case, and what will
remain with the court is residual jurisdiction.
The winning party, after receiving a copy of the
decision, moved for the execution pending appeal.
It is a matter of discretion to the court founded on

special circumstances. The losing party filed a

motion for new trial while the former motion was
pending. Can the court grant the motion for
execution pending appeal?
No. The trial court should resolve the motion for new trial
first before the motion pending appeal is resolved, even if
the motion pending execution is for special reasons.
Motion for reconsideration or motion for new trial of the
aggrieved party should be given preference over any other
motion by the prevailing party.
Motion for new trial on ground of FAMEN.
There must be an affidavit of merit. FAMEN must be the
reason for which the motion for new trial is bound.
Affidavits should show FAMEN. The affidavit should be
executed by persons with personal knowledge surrounding
the circumstances of FAMEN.
It is not correct to say that in a motion for new trial, we
always need an affidavit of merit. We need affidavit of
merit only if the ground relied upon is FAMEN. Motion for
new trial on ground of NDE will not need Affidavit of Merit,
merely the affidavit of the new witness will give testimony,
or an authentic copy of document or object evidence to be
presented.
Extrinsic fraud vs. Intrinsic Fraud in Motion for New
Trial
EXTRINSIC FRAUD
INTRINSIC FRAUD
Connotes any fraudulent
Refers to the acts of party
scheme executed by the
during trial which does not
prevailing party outside
affect the presentation of
trial against the losing
the case
party who because of such
fraud was prevented from
presenting his side of the
case
The principle in new trial in the case of fraud, the fraud
committed must always be EXTRINSIC FRAUD. It cannot be
intrinsic fraud. In Rule 37, there is a basis for the court to
determine extrinsic fraud from intrinsic fraud for the trial
to be properly resolved. If the fraud alleged in the motion
is intrinsic, that motion will be denied. What should be
proven should be an extrinsic fraud.
Rule 37 could give a good basis for making a distinction
between the two frauds.. There are 2 clauses to justify
extrinsic fraud as a ground for new trial compared to
extrinsic fraud:
which ordinary prudence could not have guarded
against and by reason of which such aggrieved
party has probably been impaired in his rights.
If we rely solely on Rule 37, in court cases, the court
has allowed lawyers to cheat one another, so long
as cheating is limited only of intrinsic fraud, which
could be prevented through the use of ordinary
diligence.
For instance, the court has ruled that if a party wins the
case because his cause of action is supported by a
document which could serve as preponderant evidence
which could show his title to recover from the defendant.
But later on, the aggrieved party is able to prove that the
document presented by the plaintiff, and which is the basis
for the judgment in his favor, is a forged document.
Forging a document is a crime. But in a trial, the admission
of a forged document will not be a ground for a new trial,
or even as NDE. This is because the presentation of a
forged document by the plaintiff could easily be avoided
by the defendant through the exercise of ordinary
diligence. If confronted with such document, and the

defendant is not sure as to its authenticity, the defendant

could have called upon witnesses, such as an expert
witness, to prove that such document was forged. His
failure to do so is a waiver of this fact.
Another instance of cheating duly proven by the movant
in a motion for new trial based on extrinsic fraud which the
SC did not consider as extrinsic is when the prevailing
party presented witnesses who had perjured. But if the
aggrieved party relies solely on the allegation that all the
witnesses presented by the party all committed perjury,
that is not a ground for new trial, that it is only intrinsic
fraud. What the SC is telling the defendant is that he
should also have cheated, that he should also have been
dishonest. If the plaintiff presented 2 perjured witnesses,
the defendant should have called 5. So the message given
with respect to extrinsic and intrinsic fraud is that litigants,
through their lawyers, can be dishonest during the course
of a litigation. But they should see to it that the ;cheating
will not amount to extrinsic fraud, that which will not
deprive the other party of his day in court, that the other
party will have the opportunity to present his side in court.
That is the life of a lawyer, he is encouraged to be
dishonest, he should be deceptive in his relationship with
others lawyers. Anyway, lawyers will not go to heaven,
that is a given fact. It is found in the Bible. But that is only
a part of a passage in the Bible. The additional passage is
that lawyers do not go to hell. But that does not make the
life of a lawyer less worthwhile. If a lawyer cannot go to
heaven or to hell, where will the lawyer go after death?
The implication is that a lawyer does not have a soul.
That is how the SC looks at the situation. In fact the S in
several cases said we should expect dishonesty in the
course of a litigation. We cannot avoid that. The SC said
that if they allow every act of dishonesty to be a ground
for new trial, there will never be an end to a litigation,
because a lawyer will always be able to point out to the
court certain acts of dishonesty or cheating in a motion
for new trial.
Mistake
The mistake of a lawyer is the mistake of the client. If the
aggrieved party lost the case due to a serious mistake of
the lawyer, the said party fires his lawyer and gets a new
one, the new lawyer cannot capitalize on the mistake
committed by the former lawyer. The is just applying the
rule on agency. The act of the agent is the act of the
principal.

Q: What are the requisites of newly discovered

evidence as a ground for New Trial?
A:
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial with reasonable diligence; and
3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight
that if admitted would probably change the
judgment (BERRY RULE) (CIR v. A. Soriano Corporation,
GR No. 113703 January 31, 1997).
Because of the requirement, that the result of the case
would probably be altered, we cannot consider cumulative,
corroborative or impeaching evidence as NDE, as these
cannot alter the result of the case. The recantation of a
witness is not NDE. In fact, the SC has been emphatic in its
ruling continuously that if a witness recants, the
recantation should not even be given any attention at all.
Because if we give attention to the recantation of a
witness, you can expect lawyers to produce recantations
by witnesses who already testified in court. So, the stand
of the court is that the testimony of a witness given in
open court reflects the truth, not the recantation. The
recantation shall not be treated as NDE.
In a motion for reconsideration under Rule 37, there are 3
grounds:
damages awarded are excessive,
the evidence is insufficient to justify the decision
or final order,
the decision or final order is contrary to law
There is also a rule under Rule 37 allowing only one motion
for reconsideration by the same party, either prevailing or
aggrieved party. If that is denied, a second motion for
reconsideration will not be allowed, even if the second
motion for reconsideration is founded on a different
ground. The rule against the filing of a second motion for
reconsideration is almost absolute.
Unlike in a motion for new trial, Rule 37 allows a movant to
file second motion for new trial if founded on a ground
different from the one used in the first motion for new trial.
But whether it is a motion for new trial or motion for
reconsideration, there is another rule contained in other
provisions where the court will not allow an extension of
time to file motion for new trial or reconsideration (15-30
day period). The party must observe the 15/30-day period.

But, there is one situation where the SC relaxed the

application of this principle. The SC said that while it is
true the mistake of the lawyer will always be considered
the mistake of the client. But if the mistake of the lawyer
was tantamount to bad faith, there is an insinuation that
the lawyer deliberately caused the loss of the case of the
client, then that is a ground for new trial. The clients
rights should be protected in this situation.

If motion for reconsideration is favorably acted upon, the

court will simply render an amended judgment. If the court
feels that the judgment is contrary to law or the evidence
does not fully support the judgment, the motion for
reconsideration should be granted to reduce the liability of
the aggrieved party, but the court will only amend the
previous judgment in order to reduce the liability of the
party aggrieved.

But the general rule is that the mistake of a lawyer is the

mistake of the client, and it cannot be a ground for new
trial under FAMEN.

If the motion for new trial in a civil case is granted, and

such is not a partial motion for new trial, the judgment will
be vacated. But the evidence presented during the trial
will not be disturbed. There is no need for the witnesses
who had testified in the trial to give their testimony again.

Newly Discovered Evidence

This is an adaptation of an American principle called the
Berry Rule : Newly discovered evidence, which he
could not, with reasonable diligence, have
discovered and produced at the trial, and which if
presented would probably alter the result.

If the Motion for new trial granted was that in a criminal

case, the judgment will also be vacated, and all evidence
taken during the trial need to be retaken and witnesses
who testified will be recalled. The grounds for new trial in a
criminal case are serious irregularities or errors committed
by the trial court, not FAMEN. Even if the evidence taken in

court will not be retaken, there will be a recalling of the

witnesses who had testified during the trial.
In Rule 37, it is clearly provided that if a motion for new
trial or reconsideration is denied, the denial cannot be
appealed or be subject to Rule 65 as the order of denial is
interlocutory. What is to be appealed is the judgment
rendered on the merits, not the order of denial. Note that
Rule 65 is now unavailing in the amended Rules in Rule 41.
The only remedy is an appeal from the judgment on the
merits that is the subject of new trial or reconsideration.
SC said that in appealing the judgment, the aggrieved
party can assign as an error the denial of the trial court of
the motion for new trial or motion for reconsideration. But,
he is no longer allowed to file a petition under Rule 65 to
challenge the denial of the motion and appeal at the same
time, which was allowed prior to the amendment of
Section1 of Rule 41.
MNT or MR in Criminal Cases
Either on motion of accused, or the court motu propio with
consent of the accused
Grounds for MNT errors of law or irregularities committed
during the trial, or newly discovered evidence
Ground for MR error of law or fact
Filed any time before judgment of conviction becomes final
When granted, the original judgment is always set aside or
vacated and a new judgment rendered.
RULE 38 RELIEF FROM JUDGMENT
This is a remedy available to the aggrieved party after the
entry of judgment.
There are 2 periods to be reckoned with:
~60 days from receipt of copy of judgment/notice thereof
~6 months from entry of judgment.
There was one case when the aggrieved party, before
entry, filed before the trial court a petition for relief from
judgment founded on FAMEN. The filing of the petition was
irregular because the judgment has not yet been entered.
SC held that the trial court should not have simply denied
and dismissed the motion. What the trial court should have
done was to treat the motion for relief from judgment as a
motion for new trial, because the grounds of both motions
are similar. Even if a lawyer commits an error, and files a
petition for relief from judgment founded on FAMEN before
the judgment was entered, the court will consider the
petition for relief as a motion for new trial, provided of
course, that the petition will carry with it the requirements
needed under Rule 37, an affidavit of merit that will prove
the presence of FAMEN. The SC has taken a liberal attitude
on this kind of error by a lawyer. The court will ignore the
error and just have to rule on the merits of that motion.
Grounds for a motion for new trial is similar to a
motion for relief from judgment. (FAMEN)
1. Extrinsic fraud, accident, mistake or excusable
negligence (FAME) which ordinary prudence could not have
guarded against and by reason of which the rights of the
aggrieved party was impaired; or
2. Newly discovered evidence, which could not with
reasonable diligence, have been discovered and produced
at the trial, and which if presented, would probably alter
the result (Sec. 1, Rule 37).
Is a petition for relief considered as one that is
similar to that of an annulment of judgment?

It is not so. A petition for relief is not an independent

action. In fact, it is just a continuation of the original case.
If we consider petition for relief a separate action from the
original case, a petition for relief should be filed before an
RTC because it is incapable of pecuniary estimation. But
since it is not so, Rule 38 provides that it should be filed in
the same court which issued the judgment deciding the
case. So if the court that decided the case is an MTC, a
petition for relief could be filed in the same court. If the
respondent of a petition for relief challenged the
jurisdiction of an MTC in deciding the petition for relief on
the ground that such petition is incapable of pecuniary
estimation, the reply to that argument is that a petition for
relief is just a continuation of the original case, not an
independent and separate action. Note that the old docket
number is used in the title of the case in a petition for
relief. We also do not pay docket fees.
What is important is the timeframe in which to file a
petition for relief from judgment. The SC has been very
strict. Time to file should be observed. SC has been very
strict the time frame because the judgment has been
entered and has become final and executory. There is the
likelihood that the winning party may already file a motion
for execution under Rule 39 as a matter of right.
It could happen that the aggrieved party filed a
petition for relief from judgment and the prevailing
party also file a motion for execution of the
judgment. Should the court grant the motion for
execution?
Yes. The court has a ministerial duty to execute the
judgment once the judgment has been entered and has
become final and executory. Motion to execute should be
granted once made. The prevailing party has the right to
have the judgment in his favor enforced.
If the court grants the motion for execution of
judgment because it is a matter of right on the part
of the prevailing party, will it not render academic
the relief from judgment filed by the aggrieved
party?
Rule 38 will not result to making the petition for relief
academic simply because of the granting a motion for
execution as a matter of right. Rule 38 says that the
executing court that granted motion for execution and
subsequently entertained a petition for relief from
judgment can issue a TRO or a preliminary injunction order
to stop the enforcement of the writ of execution.
You might say that in the rule on injunction, an injunctive
relief should be granted by a court higher than the court
which rendered the decision. In this case the court which
decided the case and then subsequently granted the
motion for execution of its judgment shall also issue the
injunctive relief against the carrying out of the writ of
execution. That is one of the peculiarities of Rule 38. The
court which grants the execution of its judgment, as it
really has no choice as it is a matter of right, is the same
court which will issue an injunctive relief against the writ of
execution it has previously issued. If there is no injunctive
relief issued by the said court, its decision will be carried
out until fully satisfied. This is an exception to the principle
in injunction where the injunctive relief should come from
a higher court. Here, the same court which decided the
case shall be the one who will issue an injunctive relief
against its own officer from executing the writ of execution
the court has previously issued. That is allowed in Rule 38.
If the petition for relief is granted, can the
prevailing party appeal the order?

No. The order granting relief is interlocutory, hence

unappealable.
If a petition for relief is denied, the order denying
petition for relief is a final order. Can it be
appealed? If not, what is the remedy?
No, it is a final order which is not appealable under Section
1 of Rule 41. The remedy of the aggrieved party is to file a
petition under Rule 65, a petition for certiorari or
prohibition as the case may be.
APPEAL
It could be a matter of right or a matter of discretion.
Q: What is the remedy if the motion is denied?
A: The remedy is to appeal from the judgment or final
order itself subject of the motion for reconsideration or
new trial (Sec. 9, Rule 37, Rules of Court). The movant has
a fresh period of fifteen days from receipt or notice of the
order denying or dismissing the motion for reconsideration
within which to file a notice of appeal. It is no longer
assailable by certiorari. (Sec.9, Rule 37, A.M. No. 07-7-12SC).
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 MTC to RTC
2. Rule 41 Appeals from RTC
3. Rule 42 Petition for Review from RTC to CA
4. Rule 43 Appeals from quasi-judicial agencies to CA
5. Rule 45 Appeals by certiorari to the SC
Note: The fresh period rule does not refer to the period
within which to appeal from the order denying the motion
for reconsideration, but to the period within which to
appeal from the judgment itself because an order denying
a motion for reconsideration is not appealable.
The aggrieved party has a right to appeal. It means when
he has perfected the appeal within the period to do so, the
appellate court has no other choice but entertain the
appeal, review the decision and render its own decision.
When we say that appeal is a matter of discretion wherein
the appellate court will determine whether it should be
entertained or not. If that discretion is given to the
appellate court, it simply denies to the party the right to
appeal to that court.
In civil cases, there are 3 modes of appeal given
under Rule 41:
Ordinary appeal
Petition for Review in the CA
Petition for Review on Certiorari under Rule 45
If the origin of the case is the MTC, the only mode of
appeal is an ordinary appeal. Even if the only issue raised
is a question of law, the appeal should be an ordinary
appeal brought to the RTC. Note that the Rules does not
divest the RTC or even the CA to hear appeals based
purely on questions of law. In fact, the Rules expressly say
that an appeal to the RTC from the MTC could either
involve both questions of fact and law or just purely
questions of law.
The procedure of appeal from the MTC to the RTC is given
under Rule 40.

Rule 40 procedure of appeal from MTC to appellate

court (RTC)
The party appealing in a civil case will need to file a Notice
of Appeal and payment of appellate court docket fee.
Cases involving special proceedings and other cases of
multiple or separate appeals will also require submission of
a Record on Appeal. Docket fee is a jurisdictional
requirement. Hence, if not paid on time, SC said the
appellate court does not acquire jurisdiction over the case.
Let us say a case for Unlawful Detainer was filed. A Motion
to dismiss was filed by defendant on the ground of lack of
jurisdiction over the subject matter, which was granted.
The order of dismissal, without prejudice, is not
appealable, as provided for under Rule 41. He cannot
appeal, but he can file petition under Rule 65. (Note that
UD is a special proceeding covered by Rule 70, although
cognizable by the MTC)
So, should we follow Rule 41 in appeals from the
MTC to the RTC?
No. Rule 40 does not follow Rule 41. In Section 3, Rule 40,
when an MTC dismisses a case cognizable by it for lack of
jurisdiction over the subject matter, even if the dismissal is
without prejudice, the remedy of the plaintiff is to appeal,
via an ordinary appeal, the order of dismissal rendered by
the MTC.
Why cannot we just follow Rule 41? It says that if a
dismissal is without prejudice, the order is not appealable,
and the remedy is a petition under Rule 65.
Insofar as the MTC and the RTC are concerned, there is a
good reason why Rule 40 says that the remedy of the
plaintiff is to appeal via ordinary appeal, that is to file a
notice of appeal in the appellate court and pay docket
fees. This is because there is a provision under Rule 40
which says that if the matter is brought to the RTC, and the
RTC affirms the decision of the MTC, it is the duty of the
RTC to assume jurisdiction over the case as if that case
originated with the RTC.
If we tell the plaintiff to observe Rule 41, and then the
plaintiff files a petition under Rule 65, the RTC will not have
any authority to assume jurisdiction over the case, unlike
when the remedy availed of by the plaintiff is an ordinary
appeal. This is because an appeal is not a separate
proceeding, it is just a continuation of the old case. A
petition under Rule 65 is an independent proceeding, and
not a continuation of the original case that has been
resolved by the MTC.
In cases of Unlawful Detainer decided by the MTC,
there could be an appeal in the RTC involving
factual and legal questions. Insofar as the RTC and
insofar as the prevailing party, is the appeal by the
losing party a matter of right?
Yes. Whenever the mode of appeal is ordinary appeal, the
appeal is one of a matter of right. The court has no
discretion to outrightly dismiss the appeal. It has the duty
to review the case and render its own decision. The RTC as
an appellate court from a decision of an MTC in ID has no
discretion to tell the appellant that an appeal is not given
due course, which is allowed in petition for review and
petition for review on certiorari.
Since the appeal of the losing party in the RTC is a
matter of right, can the RTC also order the dismissal
of the appeal even without rendering its own
decision as an appellate court because the
appellant violated certain orders or provisions of
the Rules?

Yes. Although it is the right of the losing party to appeal to

the RTC, the losing party, as an appellant, should also obey
the orders that could be issued by the RTC in relation to
the appeal.
One such order is given in Rule 41 (Section 7[b]), the RTC
acting as an appellate court can require the
appellant/appellee to submit an appeal memorandum. If
plaintiff does not submit an appeal memorandum as
ordered, that will be a ground for the dismissal of the
appeal by the RTC. Although appeal is a matter of right, it
is still the duty of the appellant to obey the orders of the
appellate court issued in relation to his appeal taken to the
RTC.
In Rule 41, the RTC can also order the dismissal on appeal
if it can be shown that the docket fees have not been paid
or that the appeal was taken out of time. If the appeal was
taken out of time, the appellate court has no jurisdiction at
all to review the judgment.
If the RTC renders its own decision (affirm or
reverse), can there be a second appeal?
Yes, to the CA via a petition for review. The rule of thumb
in the case of second appeals is that the appeal is a matter
of discretion. The first appeal generally is a matter of right
as to the appellant, as long as the mode of appeal is an
ordinary appeal. But even if the appeal is a first appeal,
but the mode is the one under Rule 45, that is a matter of
discretion on the part of the SC. The second appeal from
the RTC to the CA is a matter of discretion. The CA can
either refuse or allow the appeal. In that appeal to the CA
from the RTC in the exercise of its appellate jurisdiction,
purely questions of law can only be raised before the CA.
Before the CA, could there be a 3rd appeal?
Yes, we can go to the SC under Rule 45, always a matter of
discretion in the civil case. The SC enjoys the prerogative
whether to entertain or not to entertain that appeal.

Final order vs. interlocutory order

Final Order an order that completely disposes a case or
a particular matter therein. (Remedy is an appeal.)
Interlocutory Orders those that determine incidental
matters that do not touch on the merits of the case or put
an end to the proceedings. (Remedy is a petition for
certiorari under Rule 65)

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.
Harmful error that error or defect which affected the
substantial rights of parties, being inconsistent with
substantial justice.
Material data rule an essential component for any
mode of appeal whether an ordinary appeal, petition for
review or petition for review on certiorari ; it simply tells
appellant that regardless of mode of appeal chosen,
he should see to it that he informs the court about the
date he received the decision, the date of filing
motion, and the date of denial by the court of motion
for reconsideration/new trial, in order to help the court
determine the timeliness of appeal, which is
determinant of the jurisdiction of the appellate court. If an
appeal is not perfected on time, the appellate court does
not gain jurisdiction over the matter on appeal.
Erroneous appeal vs. improper appeal
Improper appeal the mode of appeal used is the
correct mode, but the questions raised in the appeal
should not be raised in the appeal (question of fact vs.
question of law). Leads to dismissal of appeal.
Ex. An RTC rendered a decision. The decision was appealed
in the CA. The mode of appeal is an ordinary appeal via a
notice of appeal. Eventually, the records are transmitted to
the CA. Under the new rules, when there is an appeal by
ordinary appeal via notice of appeal, both questions of fact
and of law could be raised. But the rules said that if the
only question raised is purely questions of law, the CA has
no jurisdiction. So the CA can dismiss the appeal when
purely questions of law are raised. This is the importance
of knowing the term improper appeal.
Erroneous appeal this is a situation wherein the mode
of appeal used is the wrong mode.
Ex. Under the rules, the correct mode is ordinary appeal,
but the mode used was petition for review.
Unlike in improper appeal, where it can lead to a dismissal
of the appeal, there are certain cases where the appeal is
erroneous, it will not lead to dismissal of the appeal.

Question of fact vs. Question of law

There is a question of law when the doubt or difference
arises as to what the law is on a certain set of facts.
A question of fact on the other hand is when the doubt or
difference arises as to the truth or falsehood of the facts
alleged.

If the court of origin is an MTC, the mode of appeal is an

ordinary appeal via a notice of appeal or a record on
appeal (in certain cases) in the RTC. From the RTC, as an
appellate court, there could be a second appeal in the CA,
but this time, the mode of appeal is a petition for review.

Memorandum decision on appeal (Rule 51)

Memorandum decision is one in which the appellate court
may adopt by reference, the findings of facts and
conclusions of law contained in the decision appealed from
(Sec. 24, Interim Rules and Guidelines)

From the MTC, supposing the mode of appeal used

by the aggrieved party was a petition for review,
can the appeal be dismissed by the RTC on the
ground that the appellant has chosen the wrong
mode of appeal?
SC held that if the appellate court is an RTC, and appellant
has chosen the mode of petition for review, RTC should
disregard the error committed by the appellant. The SC
reasoned that the contents of a petition for review meets,
and even exceeds, the requirements of a notice of appeal.
A petition for review is a very lengthy document, there is
the application of the material data rule, there are errors
that are assigned and there are arguments embodied in
the petition for review. In a notice of appeal, it may

Rule on harmless error (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

compose of one paragraph where an appellant is simply

telling the court he is appealing the decision rendered on
such date, alleging the payment of docket fees. If the
appellant wrongfully chooses a petition for review, the RTC
should entertain the petition as the essentials for a notice
of appeal are already contained in the petition for review.
But if it is the other way around, where the RTC decides
the case as an appellate court and an appeal of its
decision was made by the appellant, and filed in the CA a
notice of appeal instead of a petition for review, that
appeal will be dismissed. The mode of appeal used is
erroneous and will not confer jurisdiction anymore upon
the RTC. In other words, there are instances where the
wrong mode of appeal will lead to the dismissal of the
appeal; and there are instances where the wrong choice
will be disregarded by the court.
Also under the Rules, the only mode of appeal allowed in
civil cases to the SC is Rule 45 (appeal by
certiorari/petition for review on certiorari).From the
decision of the RTC in its original jurisdiction, there could
be an appeal to the CA or SC. The appellant decides to go
to the SC immediately. It filed a notice of appeal. SC will
dismiss the appeal since the choice of mode of appeal is
erroneous under the Rules. A notice of appeal will never
satisfy the requirements of a petition for review on
certiorari or appeal by certiorari under Rule 45.
On the other hand, even if the Rules are very clear in
saying that in civil cases, the mode of appeal to the SC is
only through Rule 45 using a petition for review on
certiorari or sometimes called appeal by certiorari, if the
appellant inadvertently calls his petition simply a Petition
for Certiorari under Rule 65, the SC will liberally consider
that as a Petition for Review under Rule 45. The contents
of Certiorari under Rule 45 and Rule 65 are essentially the
same. But, the SC cautioned parties, the erroneous appeal
must be filed within the period of appeal (15 days). If you
should recall, the period for appeal by petition for certiorari
provided under Rule 45 is 15 days, whereas under Rule 65,
the period for filing a petition under this Rule is 60 days.
In the CA, the decisions that could be appealed from the
CA do not necessarily come from courts of justice. It could
be penned by quasi-judicial bodies. There is just a common
mode of appeal even for quasi-judicial (QJ) bodies, petition
for review.
Appealed decision comes from RTC vs. from QJ body
There is no difference with respect to the content, but
there is a great difference in the execution of the judgment
appealed. If the decision comes from a trial court in the
exercise of its appellate jurisdiction, being appealed in the
CA, the decision of the trial court cannot be executed.
There could be not execution. There could be an execution,
but it should be an execution pending appeal (filed in the
CA). There could be an execution on motion, supported by
special reasons to convince the CA to order the execution
of judgment. Generally, when there is an appeal to the CA
from a court of justice like an RTC, the appealed decision
cannot be the subject of execution.
In case of QJ body decision, the appeal will not stay the
execution of the decision. The decision of the QJ body will
be enforced. There is only one way in which we can stop
the execution of the decision rendered by a QJ body during
the pendency of the appeal, that is to ask the CA to issue a
writ of preliminary injunction.
Why is execution allowed in QJ bodies?

One reason given in the Rules is that quantum of evidence

needed in QJ proceedings is only substantial evidence,
while in trial courts, the quantum of evidence is
preponderance of evidence.
If we compare also the remedies available to the defeated
party before the trial court and the appellate courts (CA
and SC), the remedies available to the defeated party are
considerably lessened as he goes higher in the hierarchy.

MTC Motion for reconsideration, Motion for new trial,

appeal
RTC Motion for reconsideration, Motion for new trial,
appeal
CA Motion for reconsideration, Motion for new trial but
only on the ground of NDE
SCMotion for reconsideration
MOTION FOR NEW TRIAL BUT ONLY ON THE GROUND
OF NDE IN THE CA
Note: Under the Rules, it is not necessary for the appealing
party to wait for the case to be decided by the CA. Even if
the case has not yet been decided by the CA, the movant
can already file a motion for new trial based on NDE. This
is not possible if the case is in the MTC or even in the RTC
acting in its appellate jurisdiction. In the RTC, we have to
wait for the RTC to render a decision before we can file a
motion for reconsideration or new trial. With respect to the
CA, we also have to wait for the decision of the CA before
we can move for reconsideration. But when it comes to a
new trial, we can file a motion for new trial based on NDE
even before the case is decided by the CA. This is clearly
spelled out in the Rules. As long as the case is within the
jurisdiction of the CA, even if before the CA had made a
decision on the case appealed, a motion for new trial
based only on NDE can be filed.
The SC is generally not a trier of facts. A Motion for
new trial will always involve a question of fact like NDE,
and thus will be dismissed by the SC. The availability of a
motion for new trial ends with the CA, but the availability
thereof is based only on the ground of NDE.
RULE 45 APPEAL BY CERTIORARI TO THE SC
In civil cases, this is the only mode used. We cannot use a
notice of appeal or a petition for review if the SC strictly
applies these rules on appeal. It does not mean to say that
we cannot go up to the SC b simply filing a notice of
appeal or an ordinary appeal. What the Rules prohibits is
the filing of an ordinary appeal to the SC, that is a notice of
appeal if the case is a civil case.
If the case is a criminal case, there could be notice of
appeal to the SC. It is applicable in case the penalty
imposed is life imprisonment or reclusion perpetua. The
appeal from that criminal case will be by notice of appeal
not via a petition for certiorari.
In a petition for review on certiorari filed in the CA, it is
axiomatic that only questions of law can be raised. Raising
questions of law with questions of fact before the SC does
not necessarily disallow the appeal. The Rules say that if
the issues raised in under Rule 45 are factual and legal,
the SC has the discretion to remand the case to the CA.
When the SC sends the case to the CA because the issues
raised are both factual and legal, the CA will have the duty
now to review the case and render its own decision.

But, the opposite does not apply, such as when the CA is

the appellate court. There is an appeal to the CA through
ordinary appeal, the court of origin is an RTC, the mode of
appeal is an ordinary appeal by filing a notice of appeal. It
is in this mode of appeal where the appellant is required to
submit his brief on appeal.
Brief on appeal required only if the appeal is an
ordinary appeal, the trial court is an RTC and the appellate
court is the CA.
If the trial court is an MTC, and there is an appeal to the
RTC, and an appeal is made on the RTC exercising its
original jurisdiction, the mode of appeal is an ordinary
appeal to the CA via a notice of appeal.
During the pendency of that appeal, the CA will require
parties to submit their briefs. The Rules provide for the
brief of the appellant and the appellee. Failure of the
appellant to submit his brief on time will be enough reason
for the CA to dismiss the appeal. Even if he submits his
brief on time, the appeal will be dismissed if the essentials
of the brief are not complied with.
SEC. 7. Appellants brief.It shall be the
duty of the appellant to file with the
court, within forty-five (45) days from
receipt 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.
SEC. 8. Appellees briefWithin forty-five
(45) days from receipt of the appellants
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.
SEC. 13. Contents of appellants brief.
The appellants 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 appellants
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
appellants brief shall contain,
as an appendix, a copy of the
judgment or final order
appealed from.
SEC. 14. Contents of appellees brief.
The appellees 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 appellants brief, or under
the heading CounterStatement of Facts, he shall
point out such insufficiencies or
inaccuracies as he believes
exist in the appellants
statement of facts with
references to the pages of the
record in support thereof, but
without repetition of matters in

the appellants statement of

facts; and
(c) Under the heading
Argument, the appellee shall
set forth his 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.
Appellants brief contents divided into several
chapters; lack of assignment of errors is fatal and
will result in dismissal of the appeal.
Why is the CA very much interested in the
assignment of errors that must be contained in the
brief, without which the appeal will have to be
dismissed?
The assignment of errors is essential in an ordinary appeal
because insofar as the CA is concerned, the decision of the
trial court is a correct decision. Remember that in our
Rules of Evidence, there is a presumption that a decision of
a trial court is correct; there is a presumption of regularity
in the performance of official duties. The CA will always
apply that disputable presumption whenever there is an
appeal in the CA. That same attitude is also adopted by
the SC. Whenever an appeal under Rule 45 is raised to the
SC, the SC adopts the disputable presumption that the
decision of the CA is correct. Since the CA adopts the
presumption that the RTC decided on the case correctly,
the appellant must destroy or overwhelm that presumption
by convincing the CA that serious errors were committed
by the RTC. The appellant cannot be allowed to present
evidence thereon, appellant will have to rely on the
records submitted from the RTC. The only way by which
appellant can possibly convince that the RTC committed
serious errors is through the assignment of errors. If the
appellant cannot make an assignment of errors in the
brief, it means the appellant finds nothing wrong with the
decision of the RTC. Therefore, the disputable presumption
stays, and this will be used by the CA. That is why the
assignment of errors is essential to the brief of the
appellant. Absence thereof is fatal to the appeal, and will
cause the appeals dismissal.

The trial court must have committed errors in the

proceedings; it is expressly provided in Rule 51 that only
errors of the court in admission of evidence and issuance
of orders that affects substantially the rights of the
appellant could be considered by the appellate court.
Otherwise, the court will disregard that error, even if made
a part of the assignment of errors.
In civil cases brought on appeal, the appellate court will
resolve only issues raised in the assignment of errors. No
other issue, generally, will be resolved by the court. The
only exception is if the issue not raised in the assignment
is closely related to the issue raised in the assignment of
errors of the appellant. This rule applies to a civil case only.
In a criminal case, if there is an error committed by the
trial court, whether mentioned or not in the assignment of
errors, the CA or SC can take cognizance of such errors in
resolving the appeal. The appellate courts are very flexible
in a criminal case whose decision from the trial court was
brought before it on appeal.
GR: Only errors assigned in the brief may be considered
on appeal
XPNs:
1. Grounds not assigned as errors but affecting
the jurisdiction over the subject matter
2. Matters not assigned as errors on appeal but
are evidently plain or clerical errors within
the contemplation of law;
3. Matters not assigned as errors on appeal but
consideration of which is necessary in
arriving at a just decision and complete
resolution of the case or to serve the
interest of justice or to avoid dispensing
piecemeal justice;
4. Matters not specifically assigned as errors on
appeal but raised in the trial court and are
matters of record having some bearing on
the issue submitted which the parties failed
to raise or which the lower court ignored;
5. Matters not assigned as errors on appeal but
closely related to an error assigned; and
6. Matters not assigned as errors on appeal but
upon which the determination of a question
properly assigned is dependent. (Riano, Civil
Procedure: A Restatement for the Bar, pp. 445446, 2009 ed.)
What is the purpose of an appellants / appellees
brief?
A: To present to the court in a concise form the points and
question in controversy, and by fair argument on the facts
and law of the case, to assist the court in arriving at a just
and proper conclusion/ decision (De Liano v. CA (2006)).

Distinguish a brief from a memorandum.

A:
Brief
Memorandum
Ordinary appeals
Certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases
If it is the appellant case who does not submit his brief, the
Filed within 45 days
Filed within 30 days
is dismissed. If it is the appellee who does not
Contents specified by rules
Shorter, briefer, only one issue involved appeal
No
subject index or assignment of errors, justsubmit his brief, then the court will simply decide the
appeal without a brief coming from the appellee. The
facts and law applicable
appellee can choose not to submit a brief. It is the brief of
the appellant whose submission or non-submission could
lead to the dismissal of the appeal.
Can the appellant assign as the only error in the
brief that the RTC committed an error in deciding
Although Rule 45 is explicitly saying that only questions of
the case against the appellant?
law could be raised in a petition on certiorari, The SC has
That is not an assignment of error that is expected by the
recognized a number of exceptions.
CA. Assignment of errors should specify particular acts
done by the RTC which could have affected his substantial
Exceptional issues where the SC allowed the appeal
rights.
whereas factual issues were raised (see Rule 45).
(MEMORIZE at least 5)
Harmless Errors in Appeal (Section 6, Rule 51)

Exceptions in which factual issues may be

resolved by the Supreme Court:
(a) When the findings are grounded entirely
on speculation, surmises or conjectures;
(b) When the inference made is manifestly
mistaken, absurd or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on
misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings, the CA went
beyond the issues of the case, or its
findings are contrary to the admissions of
both the appellant and the appellee;
(g) When the findings are contrary to the trial
court;
(h) When the findings are conclusions without
citation of specific evidence on which they
are based;
(i) When the facts set forth in the petition as
well as in the petitioners main and reply
briefs are not disputed by the respondent;
(j) When the findings of fact are premised on
the supposed absence of evidence and
contradicted by the evidence on record; and
(k) When the Court of Appeals manifestly
overlooked certain relevant facts not
disputed by the parties, which, if properly
considered, could justify a different
conclusion.
The following cases allow factual issues to be raised
based on SC Circulars:
1. Kalikasan cases
2. Amparo
3. Habeas Data
Both factual and legal questions can be raised under
Rule 45 in these three situations.
SATISFACTION OF JUDGMENT (RULE 39) SATISFACTION
OF A FINAL AND EXECUTORY JUDGMENT.
Rule 39 has been described in jurisprudence as the one
that gives life to the law. It does so in the sense that the
winning party will be able to recover the award given in his
favor through the use of Rule 39. So if the civil case is the
recovery of money, and the court awards 2M to the
prevailing party, the said party will not be satisfied until he
sees the 2M given to him.
It is not correct to assume that in order to satisfy a
judgment, we should always make use of Rule 39.
Satisfaction of judgment as conceived in Rule 39 is a
forcible satisfaction of judgment. So if the award in favor
the judgment creditor is for the payment of the judgment
debtor of 2M, the judgment creditor does not even have to
think about Rule 39 if the judgment debtor immediately
pays the award of 2M. It is only in that situation where the
judgment debtor refuses to pay that the only remedy of
the judgment creditor to enforce payment is to make use
of Rule 39, to force the debtor to pay by levying his
properties and by selling his levied properties by public
auction.
In the ordinary course of things, if there is an appeal from
the decision rendered by the trial court, and the case has
reached the SC, even if the decision of the trial court has
been affirmed, and the said decision of the SC has been
entered, it is not correct for the prevailing party to ask for
execution from the SC. The matter of execution is a duty of
the court of origin, not the appellate court. If the court of
origin is the MTC, it is the duty of the MTC to enforce the
satisfaction of the judgment. So that, there is an indirect
rule between the forcible execution of judgments by the

MTC even if the case has been decided by higher courts.

This is because higher courts do not usually issue an order
for execution of judgment. What a lawyer for the judgment
creditor should do is to wait for the records to be returned
from the SC or CA to the court of origin. It could take time
for the records to be returned to the court of origin. So, if a
motion for execution was filed by the judgment creditor in
the court of origin before the records are returned, there is
likelihood that the court of origin will tell him they have not
yet received the records so they cannot act on the motion
until the records reach the court of origin. Although, the
issuance of an order granting the motion for execution is a
ministerial duty of the court. Rule 39 has provided for a
remedy in this situation. The appellate court will simply
issue a certified true copy of the entry of judgment. That
certified true copy will be submitted to the court of origin
in order to be a basis of the granting of the order of a
motion for execution. That is enough proof that there really
is a final and executory decision.
Is there a need for the judgment creditor to file a
motion for execution, or will the issuance of a writ
of execution come as a matter of course?
There is always a need to file a motion for execution. If the
judgment creditor has not filed a motion for execution, the
court has no business to issue a writ of execution, because
the court will not know whether there was voluntary
satisfaction of judgment.
Since the judgment has become final and executory and it
has now become a ministerial duty of the court of origin to
issue a writ of execution, then the motion for execution will
be heard ex parte, without notice to the judgment debtor.
This issue has been the subject of conflicting decisions by
the SC. The latest jurisprudence said that a motion for
execution of a judgment that has become final and
executory can be heard ex parte by the trial court. But the
other decisions are to the effect that the judgment debtor
should also be given a copy of the motion for execution,
because the judgment debtor will have grounds to oppose
the issuance of the writ of for execution. In the old
doctrine, a copy of the motion for execution should be
furnished upon the judgment debtor, but the motion
cannot be heard ex parte.
Within the Rules, there is a period fixed within which the
court can grant a motion for execution as a ministerial
duty. It is 5 years from the entry of judgment. After the 5
years from entry, there can be revival of judgment, no
longer a motion, as this is an independent action to revive
the judgment. But, the independent action to revive
judgment must be filed within the second 5-year period
after the entry of judgment.
The Rules assume that the prescription period for
the execution of a judgment is the 10-year period. Is
this a correct assumption?
This is correct, as this is also provided under the NCC. A
prescriptive period of a final and executory judgment is
really 1 years under the NCC.
But what Rule 39 has provided was to divide the 10 years
into two parts : the first five years, and the second five
years. Meaning, the first five years, we can execute the
judgment via a motion for execution. After the lapse of the
first five year period, the judgment creditor cannot file a
motion for execution. If he does so, the court will deny the
motion as the court will no longer have the authority to
grant the motion of execution. The second 5-year period is
designed to force the judgment creditor to file a separate
independent action to revive the judgment. So the motion

for execution should be filed within the first five years of

the 10-year period.
Is the first 5-year period strictly implemented by the
rules?
It is not. It can be extended according to the Rules. The SC
has decided that if the institution of the judgment within
the first five years is delayed, and the delays are equitable
or are attributable solely to the conduct of the judgment
debtor, then the 5-year period will be correspondingly be
extended, that is equal the delay caused by the conduct of
the judgment debtor.
Lets say that the judgment creditor filed a motion for
execution of the judgment on the 3rd year of the first 5year period. The court of origin is an RTC. The judgment
debtor received a copy of the motion. After receiving the
copy of the motion, the judgment debtor files a petition for
the annulment of judgment before the CA under Rule 47
with prayer for a preliminary injunction. And the CA grants
the preliminary injunction. Because of the preliminary
injunction issued by the CA, we cannot expect the RTC to
order the execution of the judgment. It took the CA 2 years
to decide upon the petition of the judgment debtor. At the
end, the CA orders the dismissal of the petition for
annulment of judgment. There is a delay of 2 years. If the
5[-year period has already lapsed due to the delay,
another 2 years will be added, the 5-year period will be
automatically extended up to 7 years within which the
judgment can be executed through the filing of a motion
for execution of judgment. That is how the SC described
how the first 5-year period and the second 5-year period
should be interpreted. It is not a fixed period, it could be
extended due to circumstances that might arise in the
case there is a delay arising from the conduct of the
judgment debtor.
It simply means that the judgment debtor can legally delay
the execution of the final judgment. In fact, he is even
given 2 remedies under the Rules to prevent the execution
of a final judgment. Rule 38 is one means of delaying the
execution of judgment. In Rule 38, the court that decided
the case can issue an injunction against the enforcement
of the judgment. Rule 47 is another remedy for the
judgment debtor, as long as in the petition for the
annulment of judgment, there is a corresponding
preliminary injunction that is issued by the higher court. In
annulment of judgment, the court that will try the case will
always be a higher court. Thus, if the higher court hearing
the petition issues an order to stop the execution of the
judgment (preliminary injunction), there is no way for the
court of origin to disobey such order.
If the motion for execution is granted, which is
expected, as the judgment has become final and
executory, can the judgment debtor file an appeal
against the order granting the motion for
execution?
No. Under Section 1 Rule 41, an order granting motion for
execution is not appealable. Also, the order will be treated
as a final order. The remedy is to file a petition under Rule
65, a petition for prohibition.
Supposed the trial court denies a motion for
execution of judgment that has already been
entered, is appeal the remedy of a judgment
creditor?
No, it does not seem so, based also under Section 1 Rule
41. The creditor should also resort to Rule 65. The petition
that he should file is a petition for mandamus. Mandamus
is proper as there is a ministerial duty for the court to
perform. Under Rule 39, as long as the judgment has been

entered, it has become a ministerial duty of the court to

grant a motion for execution. That is an act that can be
compelled by a writ of mandamus.
Can the trial court promptly deny a motion for
execution of a judgment that has been entered, or
can the trial court rightly quash the writ of
execution it has issued because the judgment has
become final and executory?
The general rule is that the trial court cannot quash or
rightly deny a motion for execution if the judgment has
already been entered. But, there are certain exceptions
that the SC has recognized.
First is if the judgment sought to be enforced has already
been novated.
The judgment has become dormant. This means that the
execution of the final judgment cannot be granted via a
motion for execution. Judgment creditor must avail of the
independent action of revival of judgment to revive a
dormant judgment.
The second is when the parties enter into a compromise
agreement after the judgment has become final and
executory. If there is a compromise agreement signed by
both parties whose terms are not consistent with the
award given, the effect being that the award will be
novating the judgment. The court will no longer grant a
motion for execution of the judgment of the award that has
been given in the dispositive portion of the duly entered
judgment. The agreement of the parties can change the
terms of the dispositive portion of the judgment. This is an
application of novation being a mode of extinguishment of
an obligation under the NCC.
Q: Is a writ of execution subject to a motion to
quash?
A: A writ of execution may be quashed on certain grounds:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the
parties making the execution inequitable or unjust;
3. When execution is sought to be enforced against a
property exempt from execution;
4. When it appears that the controversy has never been
submitted to the judgment of the court;
5. When the terms of the judgment are not clear enough
and there remains room for interpretation thereof;
6. When it appears that the writ of execution has been
improvidently issued;
7. When it appears that the writ of execution is defective in
substance, or is issued against the wrong party, or that the
judgment debt has been paid or otherwise satisfied or the
writ is issued without authority (Reburiano v. CA, 301
SCRA 342).
Suppose within the first 5-year period, the court
grants a motion for execution, and then issues a
writ of execution. The writ of execution is carried
out by virtue of a levy on execution of the
properties of the judgment debtor. But the
properties levied upon were not sold during the first
5-year period. On the 6th year, can the properties
levied upon be sold at public auction?
Yes. According to the SC, the 1st 5-year period does not
require that the execution of the judgment, the actual levy
and the sale of the property on public auction must be
done within the first 5 years. What is important is that
within the first 5 years, there must be an actual levy of the
properties of the judgment debtor, even if the auction sale
was conducted in the 6th year. Levy is the actual act of
carrying out the judgment.

In another case, in year 7 of the 10-year period, the

judgment creditor who neglected to file a motion for
execution filed a motion for execution in year 7. When the
judgment creditor served a copy of the motion to the
judgment debtor, the judgment creditor convinced the
judgment debtor not to oppose the granting the motion.
The judgment debtor, accommodating the judgment
creditor, even filed his position paper stating that he is not
objecting to the granting of the motion of execution. Due
to such manifestation by the judgment debtor, although it
was already year 7, the court granted the motion for
execution. The writ was issued, and the properties of the
judgment debtor were levied upon. It was at this point that
the judgment debtor challenged the validity of the levying
of his properties by way of a motion for execution beyond
the first 5-year period. The SC sustained the stand of the
judgment debtor. The SC said that after the first 5-year
period, the court loses jurisdiction to execute the judgment
through a mere motion. The fact that the judgment debtor
did not oppose the said motion does not matter because
the issue now is one of jurisdiction. Jurisdiction will not be
vested upon the court simply by inaction on the part of a
party. Thus, the proceedings taken by the court in granting
the motion for execution beyond the first 5-year period
was held to be irregular, it will be void. The issuance of the
writ of execution will also be void, and therefore the writ
can be quashed for lack of jurisdiction.
With respect to the revival mentioned in the Rules
pertaining to the 2nd 5-year period, this is an
independent action. Since this is an independent
action, if the original action was a real action, but
this is now simply a revival, can we still consider the
revival action still as a real action?
The SC held yes. If the original action is a real action, the
action to revive that judgment will also be a real action.
And therefore, the venue in Rule 4 will still be followed. In
Rule 4, the venue will be determined by the place where
the property is located. Thus, the revival of action will be
field in the court having jurisdiction over the place where
the property is situated. The case will be cognizable by the
RTC because it is incapable of pecuniary estimation.
REVIVAL OF JUDGMENT UNDER RULE 39
There is another revival of judgment, this time under
Section 34 Rule 39.
SEC. 34. Recovery of price if sale
not effective; revival of 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 reserved 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.
The revival of judgment in Section 34 Rule 39 is not the
revival of a dormant judgment, but refers to a judgment
already executed.
The situation contemplated in Section 34 Rule 39 is that
judgment is executed, properties are levied upon, and
these properties have been sold at public auction, but the
highest bidder, or anybody who thereafter acquire the
property, is not able to get possession of the property
because of opposition or legal complications that are
related to the execution of judgment. According to Section
34, the revival of judgment could be had through a motion
or through an independent action. Thus, there is a
difference between a revival of judgment under Section 34
Rule 39 where it is a revival of a judgment already
executed via a motion or via an independent action, and
the revival of a dormant judgment where there has been
no execution within the first 5-year period prescriptive
period of a judgment under Section 6 Rule 39.
Take note of the differences between the two kinds of
revival of judgments in Rule 39, under Section 6 and
Section 34.
The improvement given by Rule 39 under the 1997 Rules,
insofar as the judgment creditor is concerned, is that
under the present Rules, the writ of execution issued by
the court has a life of 5 years. So, the judgment creditor
does not need to file one motion for execution after
another, which was the prior practice when the life of the
writ of execution was 60 days. At any time during that 5year period, the sheriff could enforce the writ, he may
make levy the properties of the judgment debtor. The only
limitation imposed by the Rules is that the sheriff must file
periodic reports to the court as to the progress of the
process of execution.
How does the court enforce a duly entered
judgment?
Through the granting of a motion for execution and
through the issuance of a writ of execution. It all depends
on the tenor of the judgment. If the judgment awards
money, there will be a levy of properties. If the award
involves delivery of properties or documents, there will be
no levy on execution of properties, the property to be
delivered will just be seized from the judgment debtor, and
there is a delivery of possession to the judgment creditor.
If the judgment directs the judgment debtor to sign a deed
of conveyance or a deed of sale in favor of the judgment
creditor, and the judgment debtor refuses, the court can
appoint another person, usually the clerk of court, to sign
the document on behalf of the judgment debtor. That
document cannot be considered a spurious document, but
one that is signed effectively by the judgment debtor
following a lawful order of the court.
If the judgment directs the judgment debtor to vacate a
piece of land or building, the court, through the sheriff, will
forcibly oust him from the building. The court will throw out
the things belonging to the occupants.
In a writ of execution, the writ will be directed to the
sheriff. But the writ will contain verbatim the dispositive
portion of the decision. The writ of execution directs the
sheriff to carry out the duty of executing the dispositive
portion of the judgment of execution.

Can the court cite a judgment debtor for refusing to

obey a lawful order of the court in compliance with
the judgment to be executed?
No. Citation for contempt is generally not a remedy in
enforcing a judgment in Rule 39. This is because Rule 39
contemplates enforcement of a judgment by the sheriff of
the court making use of the processes in Rule 39. So if the
judgment debtor refuses to obey, a court cannot go to
another court to cite the judgment debtor in contempt.
That is not contempt of court. This is because, according to
the SC, the writ is not addressed to the judgment debtor.
The writ is addressed to the sheriff of the court, and hence
the sheriff has the duty to carry out the dispositive portion
of the judgment.
Can there be contempt in collection of money cases
by way of exception?
Generally, no, but it can be had in support cases. Failure to
give support can result with the disobeying person being
cited in contempt, as well as being subjected to a criminal
case for failure to give support.
Generally, a judgment debtor who refuses to obey the writ
of execution cannot be cited in contempt. There are other
more effective remedies under Rule 39 in order to carry
out the possible satisfaction of the judgment. The more
effective remedy under Rule 39 is to levy the properties of
the judgment debtor, seizure thereof and sell them at
public auction.
Levy of properties under Rule 39 does not automatically
mean that possession of the levied properties will be in the
hands of the sheriff or the court. If properties of the
judgment debtor that are levied upon are real properties,
the judgment debtor will have continued possession
thereof, he will not be ousted. The court will simply submit
a copy of the levy of execution to the RoD and ask the RoD
to annotate the fact that the real property is subject to a
lien via a levy on execution. What is important to know in
the levy of real properties is that the judgment debtor will
not be ousted from his physical possession of the real
property. He will continue to be in possession of the real
property although it is already subject of a levy.
But when the property levied upon is personal property,
that is, where the physical possession of the property will
be turned over to the sheriff. In fact, the properties will
literally be placed in custodia legis.
What happens after the levy is implemented by the
court?
Levy of properties under Rule 39 should always be
followed by sale by public auction. We will not have an
execution if we stop at levying of properties. The levy must
always be accompanied by a sale by auction. If there is
only a levy without a sale by auction, then that levy can be
nullified by the court. It is the duty of the court to see to it
that an actual levy of properties should be followed by a
public auction sale.
Under Rule 39 and under certain special laws, there are
certain properties of a judgment debtor that is exempt
from levy. If the property of the debtor that is exempt from
execution is levied upon, the levy is void, nor the sale of
such levied items be valid. If the levy is void, the sale
thereof is also be void. The validity of an auction sale shall
always stem from the validity of a prior levy. Even if there
is valid levy, but if there are requirements not complied
with before, during or after auction sale, the sale will be
void, and the buyer will not acquire title to the property
sold.

THIRD PARTY CLAIM ON PROPERTY LEVIED UPON

FOR PURPOSE OF EXECUTION
The principles in Rule 39 and Rule 16 are practically
identical.
Terceria is predicated on the premise that the property
levied upon by the sheriff for the purpose of executing of
the duly entered judgment does not belong to the
judgment debtor. (Terceria is a 3rd party claim filed with
the sheriff.) If the property levied upon belongs to another
person, the levy is not valid. The levy not being valid, the
sale is not valid. Rule 39 expects that the property levied
upon by the sheriff belongs to a judgment debtor, because
Rule 39 is for the satisfaction of a judgment against a
judgment debtor. If the sheriff makes a levy on properties
which do not belong to the judgment debtor, you can
expect the true owner to complain. Such owner can file a
complaint for the recovery of the real property from the
sheriff. The filing of such complaint of the owner is just one
of the several remedies which the owner can avail of. In
Rule 39, the remedy refers to the filing of a 3rd party claim
(Terceria).
The other remedies which are expressly acknowledged in
Section 16 Rule 39.
What are the remedies available to a third-party
claimant in levy of real property?
A:
1. Summary hearing before the court which authorized the
execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment
creditors; or
4. Independent reinvindicatory action. (Sec. 16, Rule 39)
The remedies are cumulative and may be resorted to by
the third party claimant independently of or separately
from the others.
Note: The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party
claimant if there is a bond filed by the winning party. If
there is no bond, the sale cannot proceed. However, the
judgment obligee can claim damages against a third-party
claimant who filed a frivolous or plainly spurious claim, and
such judgment obligee can institute proceedings therefor
in the same or separate action (Sec. 16, Rule 39).
Replevin remedy of the true owner of the personal
property if it was improperly levied and sold
If the property is a real property, the true owner/3rd party
claimant can file an independent action to prevent the
sheriff from selling the property.
The 3rd party claimant, under Section 16 Rule 39, can
make use of these remedies successively. Thus, if he was
unsuccessful in recovering the property under one remedy,
he can make use of the other remedies.
The easiest and most practical remedy available right
away to the 3rd party claimant is a Third Party Claim. It
does not require the filing of a complaint, just the
submission of an affidavit to the sheriff and to the court,
setting forth his ownership and entitlement to the
possession, and that the property should not be levied
upon as this is not a property of the judgment debtor.
Evidence appurtenant thereto must be attached.

Can the court render a judgment that will tell the

sheriff that the property is not the third party
claimants but that of the judgment debtor?
No. The third party claim is an incident to the execution
process, the trial proceedings are over insofar the court is
concerned. The court has no power to resolve an issue of
ownership involving the property levied upon. It should be
threshed out in a separate complaint. Regardless of a
finding by the execution court that the true owner is the
judgment debtor, that will have no bearing on the third
party claimant. That order will not be entered, it will not be
considered a judgment on the merits and will not
constitute res judicata insofar as a 3rd party claimant. If at
all, the consequence of the finding of the court is that the
sheriff can go ahead with the sale of the property.
If the sheriff schedules the sale, can third party file
an independent action to stop the sale of real
property?
Yes, he can file the complaint in another court, RTC, for
injunction with claims for damages, if any.
If property levied upon is a personal property of a
3rd party claimant, can 3rd party file complaint for
replevin?
Yes. The claimant must implead the sheriff and the
judgment creditor (prevailing party).
If the executing court is an RTC, and 3rd party
claimant files a case for replevin, can he file it in the
MTC?
Yes, as replevin is cognizable by the MTC depending upon
the value of the thing subject to the auction sale.
Is this interference with the other court? Can the
sheriff in the other court claim that the seizure is
interfering with the proceedings of the other court?
No. The sheriff of the MTC can seize the personal property
from the sheriff of the other court.
Cannot the sheriff of the MTC capitalize on the
provisions of Rule 60 on replevin that the writ of
replevin cannot be enforced when the property is
subject to attachment?
If you go to Rule 60, it is really a requisite in the issuance
of a writ of replevin. The issuing court can issue a writ of
replevin validly if the property to be seized is not under
custodia legis, not under a levy of execution or
attachment. If the property is subject of a levy on
execution, it is under custodia legis.
But notwithstanding that provision in Rule 60, the SC said
that a writ of replevin issued by the MTC will prevail over
the levy on execution writ by the sheriff, because the writ
of execution by the sheriff is void. What is required
under Rule 60 to is that a property should be under
custodia legis to prevent enforcement of a writ of
replevin, it assumes that there was a prior VALID
LEVY ON EXECUTION. For a property to be validly levied
upon, the property must be owned by the judgment
debtor. Otherwise, the levy is void. Therefore, the property
can be the subject of a seizure by another sheriff in
compliance with a writ of replevin issued by another court,
even if it is an MTC. It is proper for the MTC to issue a writ
of preliminary mandatory injunction directed against the
sheriff to prevent the sheriff from going ahead with the
sale.

In Rule 39, if the property of judgment debtor has

been subjected to levy on execution, can it be
subjected to another levy on execution?

Yes. If there are several cases where the property is

subject to levy, it is possible the same property can be
subject to levy on execution. The debtor remains to be the
owner of the land, and the levy creates a lien only over the
property. The first levy annotated on the title of the
property shall be superior to the subsequent levies
following the principle of seniority. The SC has held that if
the property is the subject of different levies, and the
judgment debtor sells the property, the sale is valid, as the
judgment debtor is still the owner of the property at the
time of the sale. But the buyer must respect the
annotations of levies in the title as to the liens imposed.
So, if the property is sold at public auction sale later on in
execution of the first judgment, the person who bought it
from the judgment debtor stands to lose the property.
Buyer is not considered a buyer in good faith due to the
said annotation of the levies in the title.
If the property was mortgaged to a bank that is still
existing, can the sheriff subsequently levy the
property?
Yes, as the levy will not affect the ownership of the
property by the judgment debtor. It only creates a lien. He
loses ownership if there was a public auction sale thereon.
But ownership shall not immediately be lost, so long as
judgment debtor still has the right of redemption.
If in cases where there are two different levies over the
same piece of land of the judgment debtor, usually, the
property will be sold as a result of the first levy of the
property. If the property is later on sold at public auction,
and as the law gives to the judgment the right of
redemption, this right of redemption will also be enjoyed
by the buyer. Rule 39 in defining the redemptioner names
a judgment debtor, his successors in interest or any
creditor who holds another levy or lien subsequent to that
of the levying creditor who has caused the sale of the
property.
The right of the first levy holder to redeem is distinct right
from the 2nd levy holder to redeem the property. If it is the
2nd holder who redeems the property, there could be
another redemption by the first judgment debtor. Under
Rule 39, when it is the judgment debtor who redeems
the property from the highest bidder, other rights of
redemption are cut off by virtue of the redemption by the
judgment debtor. So we can speak of successive
redemptions only if the redemptioner is not the judgment
debtor himself. If the one who redeems the property is
another lien holder, we can apply the rule of successive
redemption which says that another redemption can be
had within 60 days from the efficacy of the first
redemption, even if the 1-year period for redemption has
already expired.
For example, there are 3 redemptioners, one being the
judgment debtor. If the redemption is carried out by the
judgment debtor, the rights of redemption of the other 2
are cut off. Redemption for all of them is 1 year from the
registration of the sale in the certificate of title. So we
have to assume that a redemption made should be within
1 year of the registration of the certificate of sale in the
certificate of title. If the 2nd levy holder redeems the
property, then the 3rd levy holder can also further redeem
the property within 60 days of the last redemption. But
within the 1-year period, the judgment debtor can redeem
the property, who upon his exercise of his right of
redemption, the rights of the others to redeem will be cut
off.
Will this not cause prejudice to the other levy
holders if we cut off the right to redemption?

No, it will not. The levy holders will simply enforce their
levy since the property in the hands of the judgment
debtor. They can have another public auction sale of that
levied property.
In civil law, as well as in Rule 39, the SC has accepted the
principle that whenever there is a doubt in the
interpretation of redemption rules and laws, the
interpretation should always be in favor of the
redemptioner, the judgment debtor.
Rule 39 is also very clear in saying that right of
redemption will exist only when the property sold at
public auction is a real property. When the property
levied upon and sold at public auction is a personal
property, there is no right of redemption.
SC has come up with these principles that are
applicable to redemption of real property and
principles applicable because there is no
redemption allowed in personal property:
1.Personal property is sold in auction, and the price
generated is inequitably low, the sale is void. The
highest bidder does not acquire ownership of the property.
The court will issue an order declaring the sale as
ineffectual. Sheriff must schedule another auction sale
until the price generated is not inequitably low.
2.Real property is sold at public auction, it does not
matter as to price even if inequitably low, the sale
will be valid. The low price will not render the sale void
because of the existence of the right to redeem by
the judgment debtor. If the price is very low, that is
advantageous to the judgment debtor, because if he
decides to redeem the property, he need only to match the
auction sale price.
Due to the above principle, there could arise a
situation where the levy and public auction sale of
a real property would result that the price
generated will be insufficient to pay the lien of
the judgment creditor.
Let us say that the judgment creditor has a
lien of 1M, and a piece of land owned by the
judgment debtor was sold at public auction,
but generated only 500K. It is not enough to
pay in full the award given to the judgment
creditor. The 500k will go to the judgment
creditor, but there is still a residue of 500k.
When the judgment debtor redeems the
property, should he deliver to the sheriff
500k or 1M?
The judgment debtor should deliver only 500k. He
need not deliver 1M because the price paid by the
highest bidder was only 500k.
So, if the judgment debtor was able to
redeem the property by producing 500k, but
the judgment creditor was not yet fully
paid, the judgment creditor will be tempted
to have another levy on the property. The
judgment creditor could really entertain
that idea because he has not yet been fully
paid. In Rule 39, there must be full
satisfaction of the award to put an end to
the litigation. If the judgment creditor
decides to have another levy on the same
property previously levied upon, but the
property had been redeemed by the
judgment debtor, can the same levying

creditor carry out another levy on the same

property?
SC held that in this situation, the same levying
creditor cannot impose another levy on the same
property. If the levying creditor wants to have full
satisfaction of his lien, he should make another
lien on another property owned by the judgment
debtor. Or, he could avail of the other remedies
provided for in Rule 39 if he cannot get full
satisfaction of the judgment.
3. If there is still a residue on the lien of the judgment
creditor, he can levy other properties owned by the
judgment debtor, but the judgment creditor cannot levy
the same property that the judgment debtor has
redeemed. This principle does not prevent other creditors
from levying the property that was already redeemed.
With respect to the issue as to who is entitled to the fruits
earned during the pendency of the levy and during the 1year period of redemption, Rule 39 settled that issue. The
fruits of the property sold at public auction during
the period of redemption shall redound to the
benefit of the judgment debtor when the
redemption period is still running. The basis is that
the judgment debtor retains ownership of the
property while the period of redemption is still
running. If the judgment debtor is unable to redeem the
property within the period of redemption, then the title will
be consolidated in favor of the highest bidder.
Q: What are the rights of a judgment debtor during
the period of redemption?
A:
1. To remain in possession of the property until
the expiration of period of redemption;
2. To collect rents and profits until the expiration
of period of redemption (Sec. 32);
3. To use the property in the same manner it was
previously used;
4. To make necessary repairs; and
5. Use it in the ordinary course of husbandry (Sec.
31).
In the auction sale, anybody can bid, even the judgment
creditor. It is usually the judgment creditor who will be
offering the highest bid because the judgment creditor can
give an amount equivalent to the award given by the
court. If the award given by the court is 1M, then the
judgment creditor can give an amount as high as 1M. He
need not turn over any cash to the sheriff, because he will
just tell the sheriff that he will consider the 1M lien as
fulfillment of his claim. Whereas if a stranger is the highest
bidder, this stranger is expected to give the 1M to the
sheriff.
Can the judgment creditor be forced to shell out the
equivalent of the highest bid even if the highest bid
is exactly equivalent to the amount of his claim?
Generally, no. But if there is a 3rd party claim, a terceria,
and the highest bid was that of the judgment creditor, the
judgment creditor must still shell out cash in order to be
treated by the sheriff and the court as the highest bidder.
If the judgment creditor is not fully paid, there are other
options given in the rules in order to fully satisfy the claim:
1. File a motion in the court for an examination of the
judgment debtor.
2. File a motion in the executing court for the examination
of a debtor of the judgment debtor.

3. File a motion for the appointment of a receiver for the

remaining properties of the judgment debtor.
A receiver is one of the provisional remedies in the RoC.
Receivership is allowed by the court, although the case
has already been terminated, being already in the
execution stage of the judgment. This is one instance
where a provisional remedy can be used even after a case
has been decided by the court. The usual concept of a
provisional remedy is that they are availed of during the
pendency of the case, before entry of judgment. But in the
case of receivership, this remedy can be availed of under
Rule 39 even if the case has already been decided, the
judgment has been entered and is now subject to
execution.
THE PRINCIPLE OF RES JUDICATA
Res judicata under Section 39 consists of 2 sections,
Sections 47 and 48.
Section 47 is concerned with the effect of local judgment
after it is entered, and Section 48 is the effect of a foreign
judgments.
In our study of res judicata, there are 3 essential elements:
1. identity of parties
2. identity of causes of action
3. identity of subject matter
The effect of res judicata under section 47 depends upon
the nature of the action:
Judgment in rem (letter a of Section 47)
Judgment in personam (letter b Section 47)
Conclusiveness of judgment (letter c Section 47)
Rule 39SEC. 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 of their
successors in interest, that only is
deemed to have been adjudged in a
former judgment or final order
which appears upon its face to have
been so adjudged, or which was
actually and necessarily included
therein or necessary thereto. (49a)

Conclusiveness of judgment
Letter a and b speaks of conclusiveness in both instances.
In letter a, the law says the judgment is conclusive upon
the title to the thing, the will or administration, or
the condition, status or relationship of the person.
In letter b, the law says the judgment is conclusive
between the parties and their successors in interest
by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under
the same title and in the same capacity.
This is the reason why a cadastral proceeding is
considered as an action in rem, because the judgment in
that litigation is conclusive upon the title, it is not
conclusive upon the plaintiff or defendant. Since the
judgment in a cadastral proceeding is conclusive upon the
title of the property, that judgment will have to be binding
against the litigants as well as anybody who has an
interest over the property, although these persons might
have not been involved in the litigation.
In the probate of a will, which is another procedure in rem,
when there is a decision of the court admitting the will to
probate, it is conclusive upon the will or administration.
Therefore, anybody who have an interest in the will must
respect the decision of the court.
But you will notice that there is a caveat when it comes to
a probate of a will: it is not conclusive as to the fact
that the testator is dead. There is only a disputable
presumption, unless proof thereof is presented. The reason
for this is that in civil law as well as in the Rules, the
probate of the will can be commenced even when the
testator is still alive, provided that it is initiated by the
testator himself.
If a person has been issued a decree of adoption of a child
named Juan dela Cruz, the decree is conclusive upon the
personal status of that adoptee. Therefore, anyone who
meets the adoptee and transacts with him shall be bound
by the issued decree of adoption.
In letter b, when the law says that judgment is conclusive
upon the parties and their successors in interest as to
matters directly adjudged or as to matters that could have
been adjudged, that phrase litigating for the same thing
and under the same title and in the same capacity will
refer, for instance, to a compulsory counterclaim or a
cross-claim. This is because we learned that a compulsory
counterclaim or a cross-claim that is not raised in the same
action shall be barred. The reason they will be barred is
because they are matters that could have been raised in
relation to the principal action. So, in a judgment in
personam, the judgment is conclusive only on the matter
directly adjudged.

An example of an action in personam could be an action

involving reconveyance of property. If the action is only an
action for reconveyance or an accion reinvindicatoria, it is
an action in personam. Although real property is involved,
still it is an action in personam.
Plaintiff won the case with attachment of property.
Judgment is entered. The plaintiff is now the owner
of the property insofar as the judgment is
concerned. However, X, the true owner of the
property, filed a case for recovery of the property. Is
there res judicata?
No. There is no identity of parties between the first and
second case. There also there may be no identity in cause
of action, although there is identity in the subject matter to
recover.
If there is identity in the subject matter, does it not
follow that there will be identity in the causes of
action?
No. That would not be the correct assumption. There could
be identity as to the subject matter, but the causes of
action could still be different.
For instance, in accion reinvindicatoria, the subject matter
involves a piece of land. The case involves title to a piece
of land. If there was another complaint filed involving the
same piece of land, the cause of action could be different,
although they are referring to the same land. For instance,
there could be a case for unlawful detainer filed involving
the same property. Again, though involving the same
subject matter, the causes of action for accion
reinvindicatoria and unlawful detainer are different. Accion
reinvindicatoria involves recovery of title to the property,
while unlawful detainer involves recovery of physical
possession of the property. In this case, the second case
cannot be dismissed by reason of res judicata as there is
no identity of causes of action.
General Rule on Res Judicata under Section 47 Rule
39
When the judgment is entered as contemplated in Section
47, Rule 39, then the effect of the judgment is similar to a
judgment in rem or judgment in personam. The collateral
principle that we adopt from this rule on res judicata is
that the judgment that has been entered shall become
immutable, it cannot be changed or modified, even by the
SC itself. Everybody will have to respect res judicata
applicable to this judgment.
Exception:
1. Propriety of petition to annul judgment (it is an
attempt to change or modify a judgment, one
ground being lack of jurisdiction of the court over
the subject matter or over the person of the
party)
2. Relief from judgment on ground of FAMEN
under Rule 38
FGU Insurance Case and a 2007 case
In that case, the SC gave 5 instances where a
final judgment can be modified or set aside.
1. Clerical errors;
2. Judgment nunc pro tunc;
3. The judgment is void; and
4. When supervening circumstances intervene
after finality of judgment to render execution of
judgment unjust and inequitable.
5. SC held that it has the inherent power to
change and modify final and executory judgments
if substantial justice so require. (2007 case)
Judgment nunc pro tunc (Now for then) A judgment
intended to enter into the record the acts which had

already been done, but which do not appear in the records.

Its only function is to record some act of the court
which was done at a former time, but which was not
then recorded, in order to make the record speak
the truth, without any changes in substance or any
material respect.
Conclusiveness of judgment
(c)
In any other litigation
between the same parties of their
successors in interest, that only is
deemed to have been adjudged in a
former judgment or final order which
appears upon its face to have been so
adjudged, or which was actually and
necessarily included therein or necessary
thereto
This is a kind of res judicata with limited application. There
could be identity of parties and subject matter, but there is
no identity of causes of action. Thus, subsequent cases
may prosper due to absence of res judicata.
The debt based on a promissory note was 1M
payable in 2 installments. The debtor defaulted in
the 1st installment. The creditor filed a case where
creditor stated that the PNs signature was forged.
Court held that the signature on the note was
genuine. Then, the second installment became due.
Can another complaint be had?
Yes. Each installment gives rise to a separate cause of
action.
Can forgery be raised again on the promissory note?
No. Judgment on the first case is conclusive insofar as the
genuineness of the note is concerned.
Sec. 48 Rule 39Foreign judgments in rem and in
personam
Judgment in rem conclusive upon the title of the
thing;
Judgment in personam there is only the presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
There is a foreign judgment rendered by the Japanese
Court. The relief which the creditor stated in the Japanese
court is the fulfillment of an unpaid loan of 100k. The
Japanese court decides the case in favor of the debtor. The
debtor is required to pay the 100k in the Japanese court.
The Japanese court had not executed the judgment. But
somehow, the debtor and creditor were now living in the
Philippines. The judgment debtor has accumulated certain
propertied in the Philippines. Can the judgment creditor
in that Japan case file a motion for execution in the
Philippine courts?
No. The Philippine court cannot entertain the motion as it
knows nothing about the claim of the judgment creditor
against the judgment debtor in the Japan case.
Is there a remedy available to the judgment creditor
to enforce the judgment of the Japan court in the
Philippines?
Yes, the remedy is found in Section 48 (b) Rule 39. The
judgment from the Japanese court is a presumptive
evidence of the judgment creditors right against the
judgment debtor.
How does the judgment creditor make use of that
rule that the decision of the Japan court is
presumptive evidence of his right against the
judgment debtor?

The creditor should file an independent complaint for the

enforcement of the decision of the Japan court. And the
only evidence that he needs to convince the court as to
the preponderance of evidence needed to prove his right is
to present to the Philippine court a certified true copy of
the decision rendered by the Japan court. If he is able to
present a certified true copy of the decision to the
Philippine court, the court will then apply the presumption
given under Section 48(b) Rule 39, that the decision of the
Japan court is presumptive evidence of the rights between
the parties.
In Section 48, there is a last paragraph talking about
repelling of a foreign judgment. A judgment of a foreign
court can be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear
mistake of law or fact committed by the foreign court.
Hence, if the creditor files a case for the enforcement of
the decision of the Japan court, the judgment debtor can
present evidence that will repel the foreign decision, such
as want of jurisdiction over his person.
Can all these grounds repel a local judgment?
No. The defenses available for repelling the execution of a
foreign judgment is not availing.
Why cannot the defendant oppose the execution of
a local judgment using the grounds to repel a
foreign judgment?
We do not allow a motion for execution to be denied on the
argument did based on want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of law or fact
committed by the court because that will be a collateral
attack on the judgment, which is generally not allowed
under the Rules. We can only allow a direct attack on the
judgment by filing a petition to annul that judgment, on
the ground of lack of jurisdiction over the subject matter,
lack of jurisdiction over the person of the defendant or
extrinsic fraud. We cannot use these grounds to
collaterally attack the judgment in our system.
When we say collateral attack, the person attacking the
judgment does not file a separate complaint for the
purpose of having that judgment set aside. If he only
opposes a motion for execution, and the ground is that of
lack of jurisdiction over the case, it is not allowed since
that is a collateral attack on the judgment.
Section 48 allows collateral attacks only against a foreign
judgment, which cannot be allowed insofar as local
judgments are concerned.
With respect to collusion and fraud, they are also grounds
to attack directly the judgment under Rule 47 (Annulment
of Judgments), and then under Rule 38 (Petition for Relief
from Judgments). What cannot be done under our system
is a collateral attack against a final and executory
judgment.
When can a collateral attack be had against a
judgment?
When the judgment is patently void on its face, it is
vulnerable to collateral attacks.
Ex. The judgment contains only the dispositive portion.
This kind of judgment is void on its face. (Shimizu vs.
Magsalin)
PETITION TO REVIVE JUDGMENT
It is an independent action available to a
judgment creditor who has not executed the case
via a motion in the first 5 years from entry of

judgment; Within the 2nd 5-year period from

entry of judgment, the judgment debtor cannot
oppose an action to revive judgment by setting
up the defense that the judgment is void due to
lack of jurisdiction over the person of the
defendant, as this is a collateral attack on the
judgment rendered.
If the ground that the judgment is void is used as a
defense other than an independent complaint for
annulment of judgment, that is a collateral attack on the
judgment.
PROVISIONAL REMEDIES
Also called as Interim relief and provisional order
Q: What are the Provisional Remedies under the
Rules of Court?
A:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
Q: What are the Other Provisional Remedies
available?
A:
1. Temporary custody over a minor
2. Deposit in Actions for Annulment of Sale (Reyes v. Lim)
3. Restraining order against the accused in cases of
violence among immediate family members living in the
same domicile and household
4. Hold departure orders issued by Regional Trial Courts in
criminal cases
5. Interim reliefs under Writ of Amparo:
a. Temporary Protection Order
b. Witness Protection Order
c. Inspection Order
d. Production Order
(Riano, Civil Procedure: A Restatement for the Bar, p. 534536, 2009 ed.)
Rule 57 to Rule 61 as well as Separate circulars of
the SC on WHD and WA.
Writ of Habeas Data under certain circumstances, it
functions as a provisional remedy
Writ of Amparo under certain circumstances, it functions
as a provisional remedy
Amparo Provisional Remedies
Protection order
Production Order
Witness Protection Order
Inspection Order

Provisional Remedies in Marriage-Related Cases:

Spousal support
Child support
Visitation
Temporary Custody of minor/s
Hold Departure Order
Protection order
Appointment of administrator of co-owned
propertied of spouses (owned in common or
forming part of the conjugal partnership of gains)
Writ of Kalikasan
Temporary Environmental Protection Order (TEPO)

Discovery measures that appears to be

considered as provisional remedies:
Ocular Inspection Order
Production order

documents and inspection of things, they are now treated

as provisional remedies. The Kalikasan court can issue a
production and inspection order or an ocular inspection
order.

Writ of Amparo
Writ of Habeas Data
Writ of Kalikasan

The same is true with the Amparo circular. There is a

production order and inspection order, although they are
substantially of the same nature of the production and
inspection in the Modes of Discovery.

Common element: There is a pending principal action,

except when the provisional remedy by itself is or can be
treated as a principal action, such as Replevin, Writ of
Amparo and Writ of Habeas Data.

Although we have several provisional reliefs, interim reliefs

or provisional orders, it is incorrect to assume that there
are commonalities. These different circulars have not
adopted the provisions in the Rules (Rules 57 up to 61).

We cannot file an independent action solely for the

purpose of obtaining as a principal relief any of these
provisional remedies.

If you will notice under Rules 57 to 61, one of the common

requirements is the posting of bond by the applicant
(except support pendente lite). We have an attachment
bond, receivers bond, production bond, and the like.

Example, a creditor cannot file a case solely for the

purpose of obtaining a preliminary attachment. Preliminary
attachment should be a relief prayed for in an independent
case.
Note:
Rule 57 Preliminary Attachment is a provisional remedy
because of the word preliminary.
Final attachment is not a provisional remedy. It is now part
of the execution process under Rule 39.

But in the circular on marriage-related cases, the family

court can grant these provisional orders with or without
bond at the discretion of the family court. Also, in the
same circular, the family court can grant these provisional
orders with or without a hearing, which is similar to some
provision in the Rules that some remedies can be granted
ex parte, or some provisional remedies require a summary
hearing before issuance.

Note:
Levy on execution refers to levy on final attachment.
But we use the term levy on execution to differentiate it on
levy on attachment.

In the Amparo circular, when it comes to the provisional

relief of a PO and IO, there must be a motion filed by the
applicant and a must be hearing conducted. In the case of
WPO and PO, they can be issued ex parte.

Levy on attachment is a provisional remedy.

In the Amparo circular, there is nothing mentioned about

the posting of a bond by the applicant. This is similar to
that in circular on marriage-related cases, where no bond
is required

The enumeration of provisional remedies in the rules is no

longer exclusive.
The new rules/circulars issued by the SC used the following
terms:
1. Provisional Order related to marriage-related cases
2. Interim Relief Amparo
3. Provisional Order or Provisional Remedy - Kalikasan
Provisional remedies cannot be the principal action itself,
subject to the exception of Replevin. Provisional remedy of
a writ of replevin is an application for recovery of personal
property in the main case.
Support pendente lite cannot be a principal action, as the
principal action should be a complaint for support, with
application of the provisional remedy of support pendente
lite.
Writ of Amparo and Writ of Habeas Data are actions in
themselves, but are treated as provisional remedies. If
there is a criminal case already filed involving the
disappearance of a person, that criminal action being the
principal case, there can be an application for a writ of
Amparo or a writ of Habeas Data as a provisional remedy.
In the circular of Kalikasan, Production and inspection
orders, formerly modes of discovery, were elevated as
provisional remedies in Amparo and Kalikasan writs. Also
included were TEPO, preliminary attachment, ocular
inspection order, cease and desist order (Sec. 15a) and
production and inspection order.
In these new circulars, the SC has elevated several Modes
of Discovery as provisional remedies like production of

In the circular for the Writ of Kalikasan, the issuance of

Temporary Environmental Protection Order does not
require a bond. Just like preliminary injunction, there can
be TRO good for 72 hours, but can be extended until the
end of the case. What is peculiar is that the party
required to post a bond in a TEPO is not the
applicant but the adverse party who will apply the
lifting of the TEPO. When the adverse party moves for
the lifting of the TEPO, the adverse party is required to file
a bond to protect the other party. In most preliminary
reliefs, it is the applicant who files a bond. The filing of a
counterbond will lift the preliminary relief. The same is true
with a TEPO. But the applicant does not have to file a
bond. If the TEPO is issued, the adverse party wants to
have the bond lifted, then he will be required to post a
bond to protect the interest of the applicants.
Another rule of interim relief or provisional remedies that is
applicable to the issuance of the interim reliefs is that the
interim relief or provisional order is always interlocutory, it
is not a final order and has nothing to do with the merits of
the case. Appeal is not allowed.
The accepted remedy to challenge the issuance of a
provisional remedy or interim relief or a provisional order is
Rule 65, but in some circulars, that has also been changed
substantially. For instance, in summary procedure, in cases
in the MTC, when it grants a provisional order, it is not
appealable, and the adverse party cannot file a petition
under Rule 65. The reason is that the application of
availment of Rule 65 in order to challenge an
interlocutory order is prohibited under summary

proceedings. Likewise in Amparo, there is a similar

provision stating that grant of provisional order is
interlocutory, and Rule 65 is not available, being an
expressly prohibited pleading (See Section 11l of
The Rule on The Writ of Amparo). In the circular of
Kalikasan, the issuance of TEPO is also interlocutory.
Although it can be challenged, the problem is the
challenge on a TEPO can only be filed before the SC
under Rule 65.It is only the SC that can entertain a
petition assailing the issuance of a TEPO. So, do not be of
the impression that all of these remedies being provisional
in character, they are governed by the same set of rules.
They are governed by a different set of rules, depending
upon the circular of the SC applicable to each one of them.
With respect to the authority of the MTC being able to
grant interim relief, it has been settled under BP 129.
Under Sec. 33 of BP 129, it is clearly provided therein that
MTCs have authority to grant provisional remedies so long
as it has jurisdiction over the principal case. In case of
support pendente lite, there could be instances where MTC
can grant for support pendente lite, but we must keep in
mind that so long as that principal case is cognizable by
the MTC, support as a provisional remedy can be had.

PRELIMINARY ATTACHMENT
Rule 57. SECTION 1. Grounds upon which
attachment may issue.At the commencement of the
action or at any time before entry of judgment, a plaintiff
or any proper party may have the property of the adverse
party attached as security for the satisfaction of any
judgment that may be recovered in the following cases:
(a) In an action for the recovery of a
specified amount of money or damages,
other than moral and exemplary, on a
cause of action arising from law,
contract, quasi-contract, delict or quasidelict against a party who is about to
depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation, or
an attorney, factor, broker, agent, or
clerk, in the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful
violation of duty;
(c) In an action to recover the possession
of property unjustly or fraudulently
taken, detained or converted, when the
property, or any part thereof, has been
concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
(d) In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon
which the action is brought, or in the
performance thereof;
(e) In an action against a party who has
removed or disposed of his property, or
is about to do so, with intent to defraud
his creditors; or
(f) In an action against a party who does
not reside and is not found in the

Philippines, or on whom summons may

be served by publication.
You will notice in Section 1 that there are 6 instances
where one can file for the relief of preliminary attachment.
In the first five, there is a common denominator, intent to
defraud the applicant.
The last is closely related to Rule 14 (Summons), in gaining
jurisdiction over the person of the party. The applicant is
moving for an interim relief in order to enable him to
secure for himself a judgment in court by attachment of
the properties of the party who could not be served with
summons in any manner, including by publication. When
the property of the absent party is attached, the action in
personam will be converted to an action in rem or quasi in
rem by virtue of a preliminary attachment issued by the
court and actually implemented by the sheriff.
Except for the last part of Section 1, the only purpose of
the applicant in moving for the issuance of a writ of
preliminary attachment is to enable him to obtain a
security for any judgment that may be rendered later on
by the trial court in his favor.
If we will note in the cases enumerated in Section 1,
mainly, the conduct of the adverse party is criminal in
character. It is a common saying in preliminary attachment
that the fraud committed could be a criminal fraud or
wholly a civil fraud (an act of fraud that has not reached
the level of a crime) that will justify issuance of preliminary
attachment. The conduct should fall in any one of the
instances under Section 1 of Rule 57.
Thus, the issuance of a bouncing check can cause the
filing of an information as well as an application for
attachment of properties of the drawer. There is fraud in
the performance of an obligation. In the NCC, if there is
fraud in performance of an obligation (dolo incidente), or a
fraud in contracting (dolo causante, a deception employed
by one party prior to or simultaneous to the contract in
order to secure the consent of the other). In both
instances, they are justification for the issuance of
preliminary relief.
Supposing the plaintiff has a creditor that holds
collateral. If there is default in payment of
indebtedness, and there is a case of collection with
allegation of intent to defraud, can the creditor
move for preliminary attachment over the
collateral?
Yes. Although applicant may have a security already in
hand, the court may still grant such preliminary
attachment if the applicant proves such
collateral/security is insufficient to satisfy the debt.
Thus, creditor can look for other properties of the debtor
sufficient to secure the obligation due once the court
grants preliminary attachment.
In preliminary attachment, there are 2 rules that
are applicable to preliminary attachment as well as
other provisional remedies in the Rules when they
are granted ex parte:
1. Prior and/or contemporaneous service of
summons
2. Principle under Section 20 Rule 57
Prior and/or contemporaneous service of summons
there is an application filed after the commencement of
the action, and even before the court acquires jurisdiction

over the person of the defendant via summons, the court

may already have approved the application for
attachment.
For a court to act validly, the court must acquire
jurisdiction over the cause of action, the person of the
plaintiff and the person of the defendant. This remedy is
available even before jurisdiction over the defendant can
be had via a verified application for preliminary
attachment filed by the plaintiff. But, issuance of
preliminary attachment at pre-stage proceeding requires
a hearing and the court will require the posting of an
attachment bond before the writ is issued; as long as all
the conditions have been met, there is only the carrying
out the writ. The sheriff must first serve the summons and
then the notice of attachment, or serve them
contemporaneously. This will remedy the lack of
jurisdiction by the court over the person of the defendant.
This is applicable in all provisional remedies that the court
can grant ex parte even before the court has gained
jurisdiction over the person of the defendant. This can be
applied in preliminary injunction and in preliminary relief
of replevin.
Since preliminary attachment, if carried out, is a
derogation on the right of ownership of the adverse party,
the rule on attachment should be strictly construed in
order to protect the right of ownership of the adverse
party. If the properties of the defendant are going to be
subject to attachment, and these properties are those
capable of delivery, like a car, they will be seized in
custodia legis so long as the preliminary attachment is not
lifted. But the property will not be delivered to the plaintiff,
nor used by the defendant. It will be in the custody of the
court. If the court takes 3 years to decide the case, the
property will be under custody of the court for 3 years.
In case of real property, the title will be annotated with a
lien. He does not lose ownership. He can sell it, but the
buyer will be notified via the annotation on the title, and
he must recognize that fact, that the property can be
subject to auction sale later on. The buyer could stand to
lose his title on the property. The buyer cannot be
considered a buyer in good faith. He will always be a buyer
with notice of the existence of the preliminary attachment.
If the defendant has a sizable bank account, the sheriff will
simply prepare a writ of garnishment and serve it upon the
bank. When the bank receives the writ, the bank will
freeze the account up to the amount of the claim. And if
the bank account is frozen, the defendant cannot use
these funds anymore. The bank will not allow him to
withdraw. If it is a checking account and the defendant
issued checks thereon, the bank will dishonor the checks
that are presented to it. Thus, a preliminary attachment is
a serious derogation of the rights of ownership of the
defendant. In that writ of garnishment, which is also
applicable to Rule 39 (Execution of Judgment), there will be
a new relationship created as an incident to the case,
which we called Forced intervention the judgment
debtor/defendant, whether he likes it or not, will be subject
to further orders of the court. So if a bank account is
garnished, whether the bank likes it or not, the bank will
be forced to follow the orders of the court, in the sense
that the bank will have to follow the orders of the court
after the garnishment of the bank account of the
defendant.
The remedies under Rule 57 can be lifted.
How preliminary attachment is lifted:

1. File a cash deposit with the court equal to the

attachment bond or
2. File a counterbond via surety authorized by the court
(The filing of such counterbond will make a ministerial duty
of the court to lift the preliminary attachment.)
3. Motion for lifting preliminary attachment due to being
improper or irregular a motion must be filed by the
defendant, with notice of hearing.
If the defendant has already posted a counterbond
and the preliminary attachment has already lifted.
Can he apply for reversal of the order granting
preliminary attachment?
Yes. Even if the defendant has caused the lifting of the
preliminary attachment by payment of cash deposit or by
counterbond, he can still file a motion to lift the
preliminary attachment. This is because he has put up
counterbond or cash deposit enough to secure the
satisfaction of the claim of the plaintiff, and there is no
need for the attachment anymore.
Principle under Section 20 Rule 57
SEC. 20. Claim for damages on
account of improper, irregular or
excessive attachment.An
application for damages on account
of improper, irregular or excessive
attachment must be filed before the
trial or before appeal is perfected or
before the judgment becomes
executory, with due notice to the
attaching party and his surety or
sureties, setting forth the facts
showing his right to damages and
the amount thereof. Such damages
may be awarded only after proper
hearing and shall be included in the
judgment on the main case.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued, he must claim
damages sustained during the pendency
of the appeal by filing an application in
the appellate court, with notice to the
party in whose favor the attachment was
issued or his surety or sureties, before
the judgment of the appellate court
becomes executory. The appellate court
may allow the application to be heard
and decided by the trial court.
Nothing herein contained shall prevent
the party against whom the attachment
was issued from recovering in the same
action the damages awarded to him from
any property of the attaching party not
exempt from execution should the bond
or deposit given by the latter be
insufficient or fail to fully satisfy the
award.
In an action where a writ of attachment has been
issued by the court, the writ will only be lifted if
there is a cash deposit or counterbond filed in the
court, and the court will withdraw the order. The
court will then decide the merits of the case. If the
applicant wins, there is now a judgment on the
merits in favor of the applicant. Can the defendant
hold the applicant liable for improper or irregular
attachment even if he lost the case?

Yes. If the applicant eventually wins the case, it means the

applicant has a cause of action against the defendant.
But, it does not necessarily follow that the cause of
action falls under Sec. 1 of Rule 57. He may not
have been able to prove dishonesty or intent to
defraud. So, if the applicant failed to prove that his case
falls under the cases mentioned in Section 1 of Rule 57, it
means that the issuance of the court of the writ of
preliminary attachment was irregular and improper. The
only instance the court should grant preliminary
attachment are the instances mentioned in Sec. 1 Rule 57.
If the defendant wins the case, the applicant shall be liable
for damages as a matter of course. But Section 20 is the
procedure to be followed in rendering the applicant liable
for damages for a wrongful or improper issuance of a writ
of preliminary attachment.
Note: If bond or deposit given by the party availing of the
provisional remedy be insufficient or fail to satisfy the
award:
Adverse party may recover damages in the same action
(Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule 59; Sec. 10,
Rule 60).
Note: Any award of damages for the wrongful issuance of
a provisional remedy should be recovered in the same
case. The recovery of damages cannot be had in a
separate action.
The first principle under Section 20 Rule 57 is that the
recovery of damages should be had in the same case, not
in an independent action. Adverse party must already
submit an application for damages for improper issuance
of writ of preliminary attachment. The most practical way
of informing the court right away is to set up in his answer
a compulsory counterclaim for recovery of damages. If the
defendant did set up a counterclaim for recovery of
damages, and then the defendant eventually wins, he will
just file an application through a motion to conduct a
hearing on the extent of liability to which the defendant is
entitled to recover.
What Rule 57 tells us is that it is not possible for the
defendant who has won the case to file a separate
complaint for recovery of damages arising out of a
wrongful attachment. If he did so, that independent case
will be dismissed, even motu propio by the court, due to
res judicata.
In Section 20, Rule 57, it is very clear that the extent of
damages to be recovered need not be equivalent to
the attachment bond filed in court. Sec. 20 Rule 57
provides that if the attachment bond is insufficient, there
could be an availment of a levy of execution under Rule 39
by the defendant. (This section is similar to other
provisional remedies in the Rules) Nothing herein
contained shall prevent the party against whom the
attachment was issued from recovering in the same
action the damages awarded to him from any
property of the attaching party not exempt from
execution should the bond or deposit given by the
latter be insufficient or fail to fully satisfy the
award. Thus, the defendant can ask for a writ of
execution against the applicant under Rule 39. There can
now be a levy on execution against the applicant.
Remember that Rule 20 is a provision that is followed by
other provisional remedies where there is a bond required
(preliminary injunction, receivership and replevin) before
the court will issue the preliminary relief prayed for.

RULE 58 PRELIMINARY INJUNCTION (PI)

The principal action could be any action coupled with an
application for a TRO or a writ of Preliminary Injunction. A
special action for certiorari under Rule 65 is usually
accompanied by a verified application for TRO and writ for
PI. The relief usually asked for in Rule 65 is for a writ to
prevent or prohibit the respondent court from going ahead
with the case pending before the court, or in case of a
certiorari, to set aside the decision or interlocutory order of
the respondent court. Preliminary injunction and TRO can
be availed of in any civil proceeding where the principal
relief sought by the applicant or petitioner is to prevent an
act or compel performance of an act. PI can also be had in
criminal cases or special proceedings, as long the principal
relief is to compel or to prevent the performance of an act.
In PI, there are 2 provisional remedies contemplated:
1. TRO
2. Writ of Preliminary Injunction
Both require an injunction bond. TRO, in exceptional
cases, can be granted ex parte. A bond must be paid.
Generally, a court cannot grant TRO without a hearing.
When there is grave and irreparable injury,
The general rule is that a court cannot grant a TRO or a
writ of PI without a hearing, unlike preliminary attachment.
Always expect a summary hearing, with notice to both
parties, to be conducted.
TRO can be granted ex parte, by way of exception, in
instances when there is grave and irreparable injury that
will be caused to the applicant, and in no way shall the
total period of the TRO be longer than 20 days. The court
will still fix a TRO bond. During the 20-day period, the
court will then conduct a hearing to determine whether or
not a writ of PI will be needed.
(if the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding
judge of a single-sala court may issue ex parte a
temporary restraining order effective for only seventy-two
(72) hours from issuance but he shall immediately comply
with the provisions of the next preceding section as to
service of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending
shall conduct a summary hearing to determine whether
the temporary restraining order shall be extended until the
application for preliminary injunction can be heard. In no
case shall the total period of effectivity of the
temporary restraining order exceed twenty (20)
days, including the original seventy-two hours
provided herein. 2nd Par. Sec. 5 Rule 58),
PI ABSOLUTELY requires a summary hearing. A court
cannot grant a PI without a hearing. There is no exception.
It is only in the issuance of a TRO where there is an
exception to the general rule where it can be issued ex
parte. In multi-sala courts, the executive judge can issue a
TRO ex parte, but it shall be good only for 72 hours. And
then, in a multi-sala court, what the petitioner files with
the court is motion for a special raffle. If granted, there will
be such special raffle in the meantime that the executive
judge has issued the ex parte TRO. After the raffle is
completed, the judge sala in which the action has been
assigned has the duty to conduct a hearing to determine
whether or not it will have to issue a writ of PI.
Do not forget the modifications of the 2007 circular to Rule
58. The modification is that if a court has issued a writ

of PI which has no term (not lifted until finally

decided or until ordered), the court that issued such
writ of PI must decide the principal action within a
period of 6 months. This is the modification in the 2007
circular. If the court does not place a limit of 6 months to
decide the principal action, the writ will be effectively be a
perpetual injunction, because it is effective until the case
has finally been decided. If the court grants the PI today, it
has only 6 months within which to decide the case. In
deciding the principal case, the court could rule in favor of
the plaintiff or defendant. If ruled in favor of the
defendant, the PI is automatically lifted, meaning the
plaintiff has no right at all to ask for the writ of PI.
Although the authority of the court is very broad in the
issuance of a writ of PI, there are instances where a court
cannot grant a writ of PI or TRO.
Instances where a court cannot grant PI or TRO:
1. in the enforcement of Kalikasan statutes (except the SC,
as only SC is authorized to issue TRO or PI in
Kalikasan cases)
2. if there is a TEPO issued by any court (it is only the SC
that can prevent the carrying out of the TEPO)
3. In the case of infrastructure projects of the
national government (only the SC that can prevent the
carrying out of the project)
4. When it is a government bank that forecloses the
mortgage (only the SC that can prevent the carrying
out of the foreclosure, either judicial or extrajudicial)
5. court has no authority to grant injunctive relief against
the BoC. (violation of separation of powers)
6. court cannot grant injunctive relief against deportation
of aliens (violation of separation of powers)
If we compare the remedies available to a defendant
against whom an injunctive writ has been issued to that of
which a Preliminary Attachment has been issued, in Rule
57, in PA, if the adverse part/defendant files with the court
a counterbond, the lifting of the PA is ministerial to the
court. The properties will be returned. PI cannot be lifted
without a hearing despite posting of counterbond. The
court cannot rely on the filing of a counterbond to lift the
PI, as it has to study the merit of the lifting of the
injunction. It is not a matter of right of the adverse party to
expect the injunction court to lift the PI just because of the
filing of a counterbond. The reason why the Rules do not
make it a ministerial duty of the court to lift the PI simply
because there is a counterbond is due to the ground of
grave and irreparable injury. The injury cannot be
measured exactly, there is no mathematical formula to
determine extent of damages that applicant can suffer in
injunction cases.
In Preliminary Injunction (PI) and Preliminary Mandatory
Injunction (PMI), we should always relate these to the
summary proceedings. Relate these in relation to Forcible
Entry and Unlawful Detainer in the NCC. The MTC can
grant PA or PMI.
The NCC contains some procedures in the matters
pertaining to Forcible Entry or Unlawful Detainer. In the
NCC, which is copied by Rule 70, it is provided that the
court can grant PI or PMI in cases of ejectment. If the MTC
grants PI or PMI, that cannot be appealed or challenged by
a petition under Rule 65. Under the rule on summary
proceedings, Rule 65 is a prohibited pleading in summary
proceedings in challenging an interlocutory order. This is
the Rule found in Rule 70, as well as in some articles of the
NCC.

But when that ejectment case is appealed in the RTC, in

the exercise of its appellate jurisdiction, the NCC, as well
as the Rules, provides that the RTC can grant PMI or PI if
applied by the plaintiff/applicant. PI or PMI granted by
the RTC as an appellate court remains unappealable
as it remains to be interlocutory, but this can now
be challenged under Rule 65. This is because
summary procedure is in effect while the case is in
the MTC, whereas on appeal in the RTC, the regular
procedure applies, and challenge under Rule 65 is
allowed.
RULE 59 RECEIVERSHIP
It has a feature not present in other provisional remedies.
Provisional remedies are contemplated to be used during
the pendency of the case. In receivership, the court can
appoint a receiver during pendency of a case. Under
the Rules, the court can also appoint a receiver
after the judgment or in the process of execution of
said judgment. This feature makes this remedy unique.
There is no fixed time in which a court can appoint a
receiver.
Relate this to the remedies of a judgment creditor in Rule
39 when he is unable to recover full satisfaction of his
account. Under Rule 39, the judgment creditor can ask for
examination of the judgment debtor for any properties. If
there are properties present, judgment creditor can apply
that such properties be placed in receivership.
There has to be a summary hearing, no ex parte
appointment of a receiver is allowed.
The grounds for appointment of receiver are quite broad.
Whenever the court feels there is a need for the
appointment of a receiver to preserve the property in
litigation, it shall do so. The Rules also provide in
foreclosure of a mortgage, the mortgagee can move for
the court to have the mortgaged property placed under
receivership, even if there is no proof that the collateral
will be lost or deteriorate. This can be done whenever the
deed of mortgage contains a stipulation authorizing the
mortgagee to move for the appointment of a receiver. But
generally, the purpose of receivership is to preserve the
property under litigation from loss or deterioration.
SC held that the receiver is not a representative of
either party. It classified the receiver as a
representative and an officer of the court. Thus, the
receiver cannot file a case as a receiver without the
consent of the court. If a receiver needs to file a case to
recover certain properties under receivership, he needs
permission from the court to do so. On the other hand, if a
3rd person has a grievance against the receiver in his
capacity as a receiver, the 3rd person cannot simply file a
case against such receiver as the 3rd person must seek
permission of the court first. We find here a situation that
the filing of a case will need permission of the court. If not
granted, that action will fail.
Practically every issue is left to the court. The court
determines how much compensation to give to the
receiver, the qualifications of a receiver, how many
receivers may be needed. The court can appoint a
receiver, it can also fire said receiver and appoint a new
one, whenever there is a need to preserve the property.
The competence in the determination of such matters is in
the receivership court.

There is another feature in receivership that is not found in

the other provisional remedies. In receivership, there are
two bonds :
1. Bond of the applicant
2. Bond of the receiver
The applicant should manifest that he is able to post bond.
Once the court appoints the receiver, the receiver shall
also post a bond. The receivers bond is designed to
protect the parties to the litigation from any abuse or
mischief by the receiver in the performance of his duty.
RULE 60 REPLEVIN
By jurisprudence, it is accepted as a main action
and as a provisional remedy at the same time.
Recovery of possession of property capable of manual
remedy is termed as a complaint for replevin. It
automatically rules out a real action. In personal action for
recovery of possession of personal property, it involves
warrant of seizure or writ of replevin to enable applicant to
gain possession of the specified personal property.
In replevin cases, without an application of a provisional
remedy of a writ of replevin, the plaintiff recovers
possession of a personal property only after the case has
been decided in his favor. So, if plaintiff filed the case
today for recovery of a car without an application for the
provisional remedy of a writ of replevin, and the case was
decided 5 years later, the car shall remain under the
possession of the defendant during those 5 years. Chances
are, by the time the case is decided, the car might already
be in a bad condition. That is the role of a writ of replevin.
So if a plaintiff files a complaint today for the recovery of a
car, if he wants to gain possession of the car right away,
he should file an application for a writ of replevin in order
for him to immediately gain possession of the car.
Writ of replevin is tilted always in favor of the applicant.
The court can grant the motion or application ex parte.
This is one provisional remedy which cannot be granted
by an appellate court. Only the court of original
jurisdiction can grant it, as this can be granted
ONLY before the defendant answers (thus, it will be
improper for the court to grant it once the
defendant already filed an answer). But, there must
be prior/contemporaneous service of summons to
cure defect in jurisdiction over the person of the
defendant. Once served, the sheriff will seize the
personal property. Sheriff has a 5 day holding period
after seizure. If there is no challenge on sufficiency of the
replevin bond and no counterbond, the sheriff shall turn
over possession to the plaintiff. This is the advantage of
replevin, it immediately enables the plaintiff to recover
possession of the personal property that is the subject of
litigation..
Problems in the service of the writ of replevin.:
1. Jurisdiction is either RTC or MTC depending on the value
of the property alleged in the complaint. As long as the
court has jurisdiction over the complaint based on the
alleged value of the personal property, the court can issue
the provisional remedy of a writ of replevin.
Note: Value of the property = jurisdictional
2. The bond required is different than the other
provisional remedies. The bond is DOUBLE THE
VALUE of the property subject to seizure AS
ALLEGED in the complaint. The court has not further
authority to increase or decrease the bond. IT will

be based solely on the value of the property as

alleged in the complaint.
3. In the service of writ of replevin, when the sheriff finds
the property is not in possession of the defendant
but a 3rd person who is not a litigant, and said
person claims ownership of the property, sheriff will
not seize the property.
(Note: The solution to this is to advise your client that
complaint should implead 2 defendants, one who was
known by the plaintiff to possess the thing subject to the
complaint and an UNKNOWN defendant. Thus, sheriff can
rightfully seize the car from anybody who might be
in possession, as long as an unknown defendant is
impleaded in the complaint.)
4. Within the holding period of 5 days, the defendant
can file motion to challenge sufficiency of the bond
(undervaluing) or a 3rd party claim, wherein a 3rd
person claims to be a true owner of the thing (like in
Rule 57 and Rule 39). But in Rule 60, Replevin, the 3rd
party claim must be filed within the 5-day holding
period, otherwise, the 3rd party claim is useless.
This is because after the 5-day holding period, the
sheriff shall deliver the car to the applicant.
A complaint for replevin was filed by X for recovery
of a car. The court issued the writ but the sheriff
submitted a return saying he cannot enforce the
writ as the car can no longer be found. What the
plaintiff did after receiving the return was to file
another application for Preliminary Attachment of
the properties of the defendant based on the same
complaint on the ground that the defendant has
gotten hold of the property fraudulently and that he
has hidden the car so it cannot be found and be
subject to seizure. Is this proper?
The conversion of application for a writ of replevin into one
for an issuance for PA is not proper. SC held that if plaintiff
does not succeed via replevin, he cannot use PA. If he
desires to use PA, he should overhaul his complaint.
The allegations for the application for a writ of
replevin is different from that for issuance of a writ
of PA. In application for issuance of a writ of replevin, the
plaintiff alleges he is the owner or entitled to possession.
PA is for security purposes, the ownership of the property
subject to it belongs to the defendant, not a property of
the plaintiff.
5 The decision of the court can be in the alternative. If the
property itself cannot be delivered, the value of
such property can be delivered to the prevailing
party.
RULE 61 SUPPORT PENDENTE LITE
This is found under the Rules and also mentioned in the SC
Circular on Provisional Remedies in Marriage-Related
Cases. In fact, the circular of the court is more expansive.
This is because, it does not only mention support pendente
lite, it classifies it into spousal support and child support,
and are treated differently.
In the circular Family Court, which has jurisdiction over a
complaint for support, can grant both spousal support and
child support even without hearing and without requiring
the filing of a bond. This is also provided in the Rules on
Support pendente lite. We follow that provision provided
for in the circular. A Family Court can grant spousal and
child support even without filing of a bond and without
need for a hearing.

This is different in trial in courts that are not functioning as

family court. This is because in the Rules of Court, it is not
proper for an ordinary court to grant an application of
support pendente lite without conducting a hearing. In the
Rules, in Provisional Remedies, support pendente lite can
only be allowed only after a hearing is heard, and the
applicant and respondent are given the chance to explain.
The reason why this is required in the Rules is that a court
cannot conceivably issue an order granting support
pendente lite unless the court is able to determine first
that the petitioner needs support, and even if the
petitioner does need support, to determine that the
respondent is capable of grant such support. This is
because if the court simply grants an application for
support pendente lite without examining the financial
ability of the respondent, that provisional remedy will be
useless. If the respondent cannot comply, as he had no
means to give support, he could be jailed. This is one
action where the court can imprison a respondent who
does not comply with its order to give support, although
the respondent really may not have the ability to really do
so.
Remedies in case of violation against giving of
support under substantive law: (Dean Jara: This
probably violates the equal protection clause as they are
relatively unfavorable to us men.)
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against violator under
Rule 39
In the Rules of Court on Support Pendente Lite, you will
notice that the principle in Section 20 Rule 57 is not
followed at all. A remedy to recover damages in wrongful
issuance of provisional remedies should be in the same
case. There must be no separate action to recover
damages. But if you read the provisions for Support
Pendente Lite, it is expressly provided that there could be
an independent action for recovery of money given as
support in compliance with an order of the court. There is
no need for respondent to file a claim for damages in the
same action.
If you are asked why a Family Court can order spousal
support without a hearing, just state that there is no need
for a Family Court to determine the needs of the spouse or
of the minor children, there is no need for the court to
determine the financial ability of the defendant. This is
because in family-related cases, there is a need for an
inventory of properties submitted to the Family Court by
the petitioner. Based on the inventory, the court can
conclude how much the spouse is entitled and how much
the minors are entitled to support.
Also, with respect to the Provisional Orders granted by a
Family Court in marriage-related cases, although the
provisional orders are called by some other name, these
partake in the nature of an injunction.
TPO in a marriage-related case is actually a prohibitory
injunction and a mandatory injunction at the same time.
This is because in the protection order, the Family Court
prohibits respondent from certain acts,, which is a
prohibitory injunction. Also, the Family Court can tell the
respondent not to enter the former conjugal dwelling and
to remove his personal properties from the house. Thus, it
partakes of a mandatory injunction.

RECEIVERSHIP IN MARRIAGE-RELATED CASES

We also have receivership in marriage-related cases where
the court may appoint an administrator of the properties.
He is effectively a receiver of properties owned in
common.
With respect to interim reliefs in Amparo, there is nothing
mentioned in the circular about filing of a bond.
With respect to Kalikasan circular, the applicant is not
required to post a bond. It is the adverse party who will
have to post a bond in order to lift or dissolve the writ of
Kalikasan as security to protect the interest of the
applicant.
Read the Circulars on the Writs.
Center your attention on the procedures required in civil
and criminal cases given in the Writs:
Kalikasan cases
Commenced in RTC, MTC, CA, SC
Continuing mandamus is only cognizable
only in SC and CA
Party complaining/answering must have attached
documentary and/or object evidence available
If the defendant does not file an answer, there is
no need for a motion do declare defendant in
default, it being a prohibited pleading.
If the defendant does not answer, it is the duty
of the court to declare the defendant in
default, no motion need be had, and the
plaintiffs evidence can be received ex parte.
Compromise of the civil action is encouraged. The
judgment is not called a judgment based upon a
compromise but is called a Consent Decree.
Rules on Evidence are not necessarily followed.
Quantum of evidence in civil cases is mere
preponderance of evidence. However, there are
several instances in Kalikasan cases that mere
substantial evidence is enough, which is also now
followed in Amparo cases. In Amparo cases, only
substantial evidence is required, which is the
same quantum of evidence in quasi-judicial
proceedings. In Amparo cases, the rule on
quantum of evidence is exclusively determined by
the SC. If substantial evidence is required in
Amparo cases, then that is the quantum required.
An administrative body cannot change the
quantum of evidence required.
Special Civil Actions
1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies (Rule 63)
3. Review of judgments and final orders of the COMELEC
and the Commission on Audit (Rule 64)
4. Certiorari, prohibition and mandamus (Rule 65)
5. Quo warranto(Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule 68)
8. Partition (Rule 69)
9. Forcible entry and unlawful detainer (Rule 70)
10. Contempt (Rule 71)
11. Petition for Writ of Kalikasan
12. Petition for Continuing Mandamus
Q: What special civil actions are initiated by
complaints and initiated by petitions?
A:
1. by complaint
a. interpleader

b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
2. by petition
a. declaratory relief
b. review of judgments and final orders or
resolutions of the COMELEC / COA
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt
h. Petition for Writ of Kalikasan
i. Petition for Continuing Mandamus
To properly appreciate why a civil action is further
classified into a special civil action, all that we have to do
is to check Rule 1. In Rule 1, a special civil action is
inherently a civil action. What makes it special is that the
Rules require additional procedure for each and every
special civil action that is not followed in ordinary civil
proceedings. Unless there is a special rule specifically
devoted to a certain special civil action, we will still apply
ordinary rules of civil procedure.
RULE 62 INTERPLEADER
What is so special about interpleader?
In ordinary civil cases, an action is commenced by the
filing of a complaint, petition or something equivalent to a
complaint.
In an interpleader, it can be commenced by the filing of an
answer with a counterclaim for interpleader.
Since we are following the rules in ordinary civil action,
there is need of a plaintiff and a defendant. In an
interpleader, there is a plaintiff and there can two or more
defendants.
One of the features of interpleader which is not possessed
by ordinary civil actions is the absence of a cause of
action. In ordinary civil actions, if there is no cause of
action, the complaint will be dismissed. In a complaint for
interpleader or a counterclaim for interpleader, the plaintiff
does not aver a cause of action. The plaintiff in
interpleader cannot say that he has a cause of action
because it is an essential requirements in an action for
interpleader that the plaintiff does not allege a right at all;
or if he alleges a right, nobody has violated the right, the
defendants agree he has a right or does not contest the
right.
Since we are going to follow the rules of ordinary
civil actions unless otherwise provided in the Rules,
does it mean to say that we should submit a
controversy of interpleader involving at least two or
more defendants, should there be prior barangay
conciliation before we go to court?
Yes. Generally, that is a rule that is applicable to all civil
actions, and thus will include special civil actions, so long
as the parties are natural persons residing in the same city
or municipality.
Since we are going to follow the rules of ordinary
civil actions unless otherwise provided in the Rules,
does it mean to say that we should wait for the
court to issue summons?
Yes. That is the means by which the court will acquire
jurisdiction over the defendant.

In interpleader, a summoned defendant who failed to file

an answer shall be declared in default.
In Rule 9, when there is a complaint against several
defendants, and one or two of these defendants failed to
file an answer while the others filed an answer, Rule 9 says
that the non-answering defendant will be declared in
default, but the non-answering defendant will be tried
based on the answer filed by the other answering
defendants. Hence, if the answering defendant wins, the
defaulting defendant automatically wins. This is because
both answering and non-answering defendants are sued
under a common cause of action.
We do not apply Rule 9 to an interpleader. In interpleader,
when one defendant files an answer and the other did not
file an answer and was declared in default, the defaulting
defendant automatically loses the case. This is because
the Rules provide, that in addition to being declared in
default, the non-answering defendant will lose his claim.
Although in reality the defaulting defendant has a claim,
his being declared in default will make him lose his right to
the claim. Thus, if there are only two defendants and one
of them was declared in default, since the defaulting
defendant has already lost the case, the remaining
defendant will have a great chance of being declared as
the one with the right to the subject of the interpleader.
This is because the plaintiff in the interpleader does not
have any right or interest to the claim of either
defendants. The remaining defendant will be declared as
the one with the right to the claim that is the subject of the
interpleader.
Q: What are the three special civil actions which are
within the jurisdiction of MTCs?
A:
1. Interpleader, provided that the amount is within the
jurisdiction of such MTC
2. Ejectment suits
3. Contempt
Q: What is an interpleader?
A: It is a special civil action filed by a person against
whom two conflicting claims are made upon the same
subject matter and over which he claims no interest, to
compel the claimants to interplead and to litigate their
conflicting claims among themselves. (Sec. 1, Rule 62).
Q: What are the requisites in order that the remedy
of interpleader may be availed of?
A:
1. Plaintiff claims no interest in the subject matter or his
claim is not disputed
2. Two or more claimants asserting conflicting claims
3. The subject matter must be one and the same
4. Person in possession or obliged files a complaint.
5. The parties to be interpleaded must make effective
claims.
6. Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an
order requiring conflicting claimants to interplead. (Sec. 2,
Rule 62)
Rule 63 Enumerates 4 special civil actions
~Declaratory Relief
and other similar remedies:
~Reformation of instrument
~Quieting of title
~Consolidation of title

Although in the same Rule, they are governed by different

procedures.
DECLARATORY RELIEF RULE 63
The obvious nature of declaratory relief, which makes it a
special civil action, is that the petition must be filed before
a breach or violation of a right. (If we would follow ordinary
rules of procedure, the complaint would have been
dismissed outright because of lack of a cause of action.)
There is no allegation that there is a right violated by
another. If there is such an allegation, then the action
ceases to be a special civil action for declaratory relief, it
becomes an ordinary action.
Declarative relief is a preventive mechanism to prevent
parties from getting involved in an ordinary civil case. In
Declarative relief , the petitioner does not allege he has a
right, or if he has, it has not been violated, and therefore,
there is really no cause of action. The petitioner seeks
from the court a determination of what his rights are.
Petitioner is not absolutely certain if he has rights under a
certain instrument, so he asks the court to declare what
his rights are. The actual remedy is that the court declares
what his rights are.
If the remedy is the declaration of the rights of the
petitioner, then a prayer for damages in declaratory
relief negates the nature of such special civil action.
Damages connote the fact that a breach or violation of a
right has occurred.
There is an enumeration under Rule 63 (Section 1) as to
the instruments which could be subjects of a petition for
declaratory relief; deed, will, contract or other written
instrument, whose rights are affected by a statute,
executive order or regulation, ordinance, or any other
governmental regulation.
With respect to statute or ordinance, the same principle
applies, we cannot apply for a petition for declaratory
relief if there is already a violation. If there is a violation
already, the petition will not be proper. Declaratory relief
must be had before such ordinance or statute has become
effective. This is one of the reasons of the 30 day period
(date of effectivity; after publication) before a law that has
been enacted by Congress has effect. The said time before
such statute or ordinance takes effect is the time for it to
be subject to petition for declaratory relief, determining
whether that statute or ordinance is constitutional or
unconstitutional.
You will meet decisions of the SC concerning declaratory
relief to the effect that you cannot file a motion for
execution in order to carry out the declaratory judgment
(the judgment in a case for declaratory relief), in order to
differentiate it from what the court usually renders after a
judgment has been entered in order to clarify the
judgment. The latter is what we a clarificatory judgment. In
a clarificatory judgment, that is where a judgment that has
become final and executory but has certain ambiguities
with that judgment. The remedy of the interested party is
to file a motion for the rendition of a clarificatory
judgment. This clarificatory judgment is different from a
declaratory judgment. In declaratory judgment the court
will only tell the petitioner what his rights and duties are
under a certain will or contract. But in the case of a statute
or ordinance, the court will tell the petitioner whether or
not the statute or ordinance is unconstitutional or not. So
after the court has done its duty, there is no more need for
the prevailing party to return to the court in order to move
for the execution. We do not apply Rule 39 to a petition for
declaratory relief.

So, that is the nature of a declaratory relief that makes it a

special civil action. There is really no cause of action as
contemplated in ordinary civil actions where there is a
right violated by the defendant.
Distinguish declaratory judgment from ordinary
judgment.
A:
DECLARATORY
ORDINARY JUDGMENT
JUDGMENT
Declaratory judgment
Ordinary judgment
stands by itself and no
involves executor or
executory process follows
coercive relief
Intended to determine any
Intended to remedy or
question of construction or compensate injuries
validity prior to breach or
already suffered
violation
What are the requisites of an action for declaratory
relief?
A:
1. Filing of Petition before there is a breach or violation
2. Subject matter is a deed, will, contract, written
instrument, statute, executive order, regulation or
ordinance
Note: The enumeration of the subject matter is
exclusive, hence, an action not based on any of
the enumerated subject matters cannot be the
proper subject of declaratory relief. (Riano, Civil
Procedure: A Restatement for the Bar, p. 613,
2009 ed.)
3. There is justiciable controversy
4. Issue is ripe for judicial determination (Republic v.
Orbecido III, G.R. No. 154380, October 5, 2005), i.e.
litigation is imminent and inevitable (Tolentino v. Board of
Accountancy, G.R. No. L-3062, September 28, 1951)
5. Adequate relief is not available through other means or
other forms of action or proceedings (Ollada v. Central
Bank, G.R. No. L-11357, May 31, 1962)
6. The controversy is between persons whose interests are
adverse.
Q: When may an action for declaratory relief be
converted into an ordinary action?
A: After filing of petition for declaratory relief but before
the final termination of the case or rendition of judgment,
a breach or violation of an instrument, statute, executive
order, regulation or ordinance takes place. (Sec. 6, Rule
63)
Q: Distinguish Ordinary Civil Action from Special
Civil Action for Declaratory Relief.
A:
1. Ordinary civil action plaintiff alleges that his right has
been violated by the defendant; judgment rendered is
coercive in character; a writ of execution may be executed
against the defeated party.
2. Special civil action of declaratory relief an impending
violation is sufficient to file a declaratory relief; no
execution may be issued; the court merely makes a
declaration.
The second procedural rule that we apply to declaratory
relief which is not followed in other special civil actions or
in other ordinary civil actions is the authority of the court
not to entertain a petition for declaratory relief. The court
can refuse to make a declaration of the rights of petitioner
and respondents on a deed or a contract on the ground
that the judgment will not bind the parties not impleaded

in the petition for declaratory relief. This shows that

declaratory relief is not in rem. It is purely a petition in
personam. It cannot bind other parties who had not been
impleaded, although these parties not so impleaded may
be parties to the contract or matter under litigation.
When may a court refuse to make a judicial
declaration?
A: Court may motu propio or upon motion refuse based on
the following grounds:
1. A decision will not terminate the uncertainty or
controversy which gave rise to the action
2. Declaration or construction is not necessary and proper
under the circumstances
Note: Discretion to refuse does not extend to actions for
reformation of an instrument quiet title or remove clouds
or to consolidated ownership in a pacto de retro sale.
(Regalado, Remedial Law Compendium, Vol. I, p. 769,
2005 ed.)
Q: Can the court exercise discretion in application
for declaratory relief?
A:
1. In declaratory relief, the court is given the discretion to
act or not to act on the petition. It may therefore choose
not to construe the instrument sought to be construed or
could refrain from declaring the rights of the petitioner
under the deed or the law. A refusal of the court to declare
rights or construe an instrument is actually the functional
equivalent of the dismissal of the petition.
2. On the other hand, the court does not have the
discretion to refuse to act with respect to actions described
as similar remedies. Thus, in an action for reformation of
an instrument, to quiet or to consolidate ownership, the
court cannot refuse to render a judgment (Sec. 5, Rule 63).
Q: Is a third-party complaint proper in an action for
declaratory relief?
A: No. Because in a third-party complaint, such person
seeks to obtain contribution, indemnity, subrogation or
other reliefs and a declaratory relief is confined merely to
the interpretation of the terms of a contract. (Commission
of Customs v. Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory
relief is unavailable?
A:
1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine
hereditary rights;
3. The subject of the action is a court decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather than a
construction of definite status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of
doubtful meaning;
7. In a petition to seek relief from a moot and academic
question;
8. Where the contract or statute on which action is based
has been breached;
9. When the petition is based on the happening of a
contingent event;
10. When the petitioner is not the real party in interest;
and
11. Where the administrative remedies have not yet been
exhausted.
What is the competent court in a petition for
declaratory relief?
Petition for declaratory relief is an action incapable of
pecuniary estimation; hence RTC is the proper venue.

However, as to who is the competent court in other

similar remedies, take into account the provisions under
BP 129:
~Reformation of instrument is cognizable solely by RTC as
it is incapable of pecuniary estimation.
~Quieting of Title is not necessarily under the RTC. Actions
involving title to property will depend on the value of the
property. Under BP 129, actions involving title to or
possession of the property may be cognizable by an RTC or
MTC depending upon the assessed value of the property
involved.
~Consolidation of title involves real property, hence,
assessed value must be alleged to vest jurisdiction.
Q: What is an action for quieting title to real
property?
A: This action is brought to remove a cloud on title to real
property or any interest therein. The action contemplates a
situation where the instrument or a record is apparently
valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be
prejudicial to said title to real property. This action is then
brought to remove a cloud on title to real property or any
interest therein. It may also be brought as a preventive
remedy to prevent a cloud from being cast upon title to
real property or any interest therein (Art. 476, Civil Code).
Q: Is it required that the plaintiff be in the
possession of the property before an action is
brought?
A: The plaintiff need not be in possession of the real
property before he may bring the action as long as he can
show that he has a legal or an equitable title to the
property which is the subject matter of the action (Art.
477, Civil Code).
Why do we need to file a special civil action for
consolidation of title?
In execution of judgment under Rule 39, if a real property
is sold at public auction by virtue of a levy on execution,
the highest bidder will not automatically get a title in his
own name, merely a certificate of sale from the sheriff,
which bidder must register such encumbrance in the RoD
for annotation to the title of the property. He must wait one
year. If there is no redemption after one year from
registration in the RoD, the sheriff will issue a final deed of
sale to the highest bidder and the highest bidder will have
the final deed of sale recorded in the RoD. The RoD will
determine whether the 1-year period has been met, and if
there is no redemption, the highest bidder will naturally be
interested in securing the title to the property in his name.
The old title (still in the name of the judgment debtor) will
be cancelled, and a new title will be issued in the name of
the highest bidder. The highest bidder does not have to file
an action for consolidation of title. The highest bidder will
only secure from the sheriff the final deed of sale. The RoD
will simply cancel the old title and issue a new title in the
name of the highest bidder. So, in Rule 39, there is no such
thing as consolidation of title as a special civil action.
This is also the procedure that is followed when a
mortgage is foreclosed. Once the mortgage is foreclosed,
the property is sold under auction to the highest bidder.
The sheriff will issue a certificate of sale to be registered in
the RoD, and then wait for the 1-year redemption period to
expire. If there is no redemption, the sheriff will again issue
a final deed of sale. And on the basis of that final deed of
sale, the RoD will cancel the title of the judgment
mortgagor and issue a new title in the name of the highest
bidder.

So you will notice that under Rule 39 and even in the

Mortgage Law, in order to consolidate title, we do not
require a special civil action to consolidate title to be filed
in court. The only public officer who is going to deal with
the interested party is the RoD, who has the ministerial
duty to issue a title if the papers are in order, in this case a
final deed of sale.
Why do we require an action to consolidate under
Article 1607 of the NCC?
NCC Art. 1607. In case of real property,
the consolidation of ownership in the
vendee by virtue of the failure of the
vendor to comply with the provisions of
article 1616 shall not be recorded in the
Registry of Property without a judicial
order, after the vendor has been duly
heard.
NCC Art. 1616. The vendor cannot avail
himself of the right of repurchase
without returning to the vendee the price
of the sale, and in addition:
(1) The expenses of the contract, and
any other legitimate payments made by
reason of the sale;
(2) The necessary and useful expenses
made on the thing sold.
This is to obtain an order from the court for the RoD to
consolidate the title of a property subject to sale with right
to redeem, although the factual antecedents are the same.
In the NCC Art. 1607, if there is a right to redemption, it is
called conventional redemption, not a legal redemption as
that in Rule 39 and in foreclosure of mortgage. It is that
classification of redemption to conventional that makes the
difference.
A conventional redemption has also a period for 1 year.
When the 1-year period expires, the buyer of the property
cannot deal directly with the RoD. The reason why there is
a need to go to court in conventional redemption is that
there is a provision in the NCC requiring it. It is explicitly
stated in the NCC that sale with the right to redeem
is not a sale but an equitable mortgage. So, insofar as
the courts are concerned, if the contract entered by the
parties is a sale with right to redeem by way of
conventional redemption, the NCC assumes (a disputable
presumption) that the real agreement between the parties
is not really a sale but an equitable mortgage. Insofar as
the NCC is concerned, the seller is not a genuine seller,
only a mortgagor, and the buyer is the mortgagee of the
property, notwithstanding the clear tone of the deed of
sale with right of redemption. Even the RoD will have to
observe the disputable presumption given by the NCC that
the deed of sale with right of redemption is one of an
equitable mortgage. So if we go to the RoD for
consolidation of title, the RoD will simply tell the buyer of
the property that the contract is one of equitable
mortgage, not of sale, so there is a need to get a decision
from the court declaring that contract is really a genuine
contract of sale with right of redemption. That is the only
purpose of this special civil action of consolidating of title
under Art. 1607 NCC, to give to the buyer in sale with right
of redemption a chance to present evidence to defeat that
disputable presumption contained in the NCC. If he is able
to convince the court that the sale is a genuine sale, the
court will issue an order directing the RoD to cancel the
title of the seller and issue a new title in the name of the
buyer.

But if the petitioner/buyer fails to defeat the disputable

presumption that the contract is one of equitable
mortgage, he can still obtain a title, but he must file
another special civil action. This time, the buyer must file
an action for judicial foreclosure of mortgage. Even if he is
not able to obtain a decision under Rule 63 in order to
consolidate title under Article 1607 NCC, that is not the
end insofar as the buyer is concerned since he is an
equitable mortgagee, so he still has the right to foreclose
the property. The only means where he can foreclose the
property is by availing of another special civil action, which
is called foreclosure of real estate mortgage under Rule 68.
But the procedure for judicial foreclosure of mortgage is
quite lengthy, requiring 3 final orders of the foreclosure
court, a sale via public auction for the property, and even
if we assume that the mortgagee will become the highest
bidder, he will get the title in his own name only after the
confirmation by the foreclosure court of the sale in his
favor is duly entered. As we will see later, judicial
foreclosure of mortgage, as a complement to a special civil
action for consolidation of title, is a 3-stage special civil
action. Meaning to say, that the foreclosure court is
expected to make three decisions/orders before the
mortgagee can obtain a title in his name.
Q: What is the purpose of an action brought to
consolidate ownership?
A: The action brought to consolidate ownership is not for
the purpose of consolidating the ownership of the property
in the person of the vendee or buyer but for the
registration of the property. The lapse of the
redemption period without the seller a retro exercising his
right of redemption consolidates ownership or title upon
the person of the vendee by operation of law. Art. 1607
requires the filing of the petition to consolidate ownership
because the law precludes the registration of the
consolidated title without judicial order (Cruz vs. Leis, 327
SCRA 570).
Note: The concept of consolidation of ownership under
Art. 1607, Civil Code, has its origin in the substantive
provisions of the law on sales. Under the law, a contract of
sale may be extinguished either by legal redemption (Art.
1619) or conventional redemption (Art. 1601). Legal
redemption (retracto legal) is a statutory mandated
redemption of a property previously sold. For instance, a
co-owner of a property may exercise the right of
redemption in case the shares of all the other co-owners or
any of them are sold to a third person (Art. 1620). The
owners of adjoining lands shall have the right of
redemption when a piece of rural land with a size of one
hectare or less is alienated (Art. 1621). Conventional
redemption (pacto de retro) sale is one that is not
mandated by the statute but one which takes place
because of the stipulation of the parties to the sale. The
period of redemption may be fixed by the parties in which
case the period cannot exceed ten (10) years from the
date of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the date of
the contract (Art. 1606). When the redemption is not made
within the period agreed upon, in case the subject matter
of the sale is a real property, Art. 1607 provides that the
consolidation of ownership in the vendee shall not be
recorded in the Registry of Property without a judicial
order, after the vendor has been duly heard.
If we compare this procedure governing the other similar
remedies in Rule 63, you will notice right away that while
the court can outrightly refuse to entertain a petition for
declaratory relief, the court cannot outrightly refuse a

petition for consolidation of title, reformation of instrument

or quieting of title. This is expressly provided in Rule 63.
So, if the complaint is for the consolidation of title, the
court will have to follow the procedure outlined in ordinary
civil cases, which is not followed in declaratory relief. In
declaratory relief, if the court notices that not all
contracting parties are impleaded in the case, it can refuse
to entertain the petition as the judgment will not resolve
the lawsuits which may be filed as a result of this mistake.

certiorari under Rule 65 to be filed before the Supreme

Court. Under R.A. 7902 the Court of Appeals has
jurisdiction over all adjudications of the Civil Service
Commission.

If the court decides to entertain a petition for declaratory

relief, and during the pendency of the petition, the law
took effect or there is a violation committed as to the
terms of the contract, the court shall order the conversion
of declaratory relief into an ordinary civil action. Petitioner
will have to amend his complaint, as he will now allege
that he has a right and that right has been violated. The
declaratory relief will cease to be a special civil action. An
ordinary civil action takes its place, which is not possible in
the actions covered by other similar remedies. The court
does not enjoy discretion to outrightly dismiss a petition
for consolidation of title, reformation of instrument or
quieting of title.

Q: What is the period for filing certiorari as referred

to in Rule 64?
A: The petition for certiorari referred to in Rule 64 shall
be filed within 30 days from notice of the judgment,
final order or resolution of the COMELEC and the COA
sought to be reviewed (Sec. 3, Rule 64).

It is settled when a person doubts his citizenship, he

cannot file a petition for declaratory relief. He can decide
for himself right away. He needs not go to court. He can
register as a voter, which then shall be tantamount to his
recognition as a Filipino. Or, he may opt to go through
naturalization. If he files a petition for declaratory relief as
to his citizenship, the court will dismiss outrightly the
petition. This is because declaratory relief is interested
only in declaration of rights and duties under a deed, will,
contract or any other instrument. There is no deed,
contract or other instrument which will be involved in
determining whether a person is a Filipino or not. If he is
not a Filipino citizen, then he may need to go through
naturalization or administrative way of acquiring
citizenship, not through a petition for declaratory relief to
be filed before the RTC.
RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT
OF KALIKASAN
Rule 64 is always related to Rule 65. Although Rule 64 is a
mode of review, and the period to file for Rule 64 is
different from that in Rule 65, Rule 64 itself provides that
in availing of the mode of review provided in Rule 64, the
petitioner should adopt the pleading in Rule 65, a special
civil action for certiorari, prohibition and mandamus. We
have a review process from the COMELEC and COA, it is
not strictly a special civil action that will be filed, it is still a
mode of review, but using the pleadings outlined in Rule
65.
Rule 64 speaks of a mode of appeal from a
judgment or final order of COMELEC and CoA.
Although a mode of review, Rule 64 provides that
petitioner should adopt the pleading in Rule 65.
Rule 65 is about a special civil action for certiorari,
prohibition and mandamus.
Q: What is the mode of review for judgments and
final orders of the COMELEC and COA?
A: The petition may be brought by the aggrieved party to
the Supreme Court on Certiorari under Rule 65, except
otherwise provided.
Note: Rule 65 applies to the mode of review under Rule
64.Said mode of review is based on Article IX-A of the 1987
Constitution providing that the proper mode of review is

Note: The order to comment under Sec. 6, Rule 64 in case

the Supreme Court finds the petition sufficient in form and
substance is equivalent to summons in ordinary civil
action.

Note: While Rule 64 makes reference to the certiorari

under Rule 65, the period for the filing of the petition
for certiorari assailing the judgment of the
COMELEC and COA is shorter than that provided
under Rule 65
Petitioner should not move for an extension for a
petition under Rule 65. It is inextensible.
Cite some distinctions between certiorari in Rule 45,
64 and 65.
Rule 45 is appeal by certiorari
Rule 64 is appeal to SC with reference to Rule 65
pertaining to final orders, resolutions or decisions rendered
by CoA or COMELEC acting as quasi-judicial bodies.
Rule 65 is a special civil action of certiorari, prohibition and
mandamus.
Rule 65 competent court is RTC, CA or SC
Under COMELEC CODE, COMELEC has certiorari jurisdiction
under Rule 65.
Sandiganbayan has certiorari jurisdiction under Rule 65.
Q: Distinguish Rule 64 from Rule 65.
A:
Rule 64
Rule 65
Directed only to the
Directed to any tribunal,
judgments, final orders or
board or officers
resolutions of the
exercising judicial or
COMELEC and COA;
quasi-judicial functions;
Must be filed within 30
Must be filed within 60
days from notice of
days from notice of
judgment or resolution
judgment or resolution
If MR is denied, the
If MR is denied, the
aggrieved party may file
aggrieved party will have
the petition within the
another 60 days within
remaining period, but
which to file the petition
which shall not be less
counted from the notice of
than 5 days.
denial.
Distinguish certiorari under Rule 65 and certiorari
under Rule 45.
A:
Rule 65
Rule 45
Findings of fact of Court of
GR: Findings of fact of CA
Appeals are not conclusive are conclusive
or binding upon SC
Involves question of
Involves question of law
jurisdiction
Mode of appeal
Mode of review
Directed against an
Involves the review of the
interlocutory order of a
judgment final orders or
court or where there is no
resolutions of the CA,

appeal or any other plain,

speedy or adequate
remedy
Filed not later than 60
days from notice of
judgment, order or
resolution appealed from
Unless a writ of
preliminary injunction or
temporary restraining
order is issued, it does not
stay the challenged
proceeding
The judge, court, quasijudicial agency, tribunal,
corporation, board, officer
or person shall be public
respondents who are
impleaded in the action
Motion for reconsideration
or for new trial is required.
If a motion for
reconsideration or new
trial is filed, another 60
days shall be given to the
petitioner (A.M. No. 02-03SC)
Court exercises original
jurisdiction
Filed with the RTC, CA,
Sandiganbayan or
COMELEC

Sandiganbayan, CTA, RTC

or other courts
Filed within 15 days from
notice of judgment, final
order or resolution
appealed from
Stays the judgment or
order appealed from

The appellant and the

appellee are the original
parties to the action, and
the lower court or quasijudicial agency is not
impleaded
Motion for reconsideration
is not required

A special civil
action that is an
original action
and not a mode
of appeal, and
not a part of the
appellate
process but an
independent
action.
May be directed
against an
interlocutory
order of the
court or where
not appeal or
plain or speedy
remedy
available in the
ordinary course
of law

The court is in the exercise

of its appellate jurisdiction
and power of review.
Filed with the SC

Note: The remedies of appeal and certiorari are mutually

exclusive and not alternative or successive. The antithetic
character of appeal and certiorari has been generally
recognized and observed save only on those rare instances
when appeal is satisfactorily shown to be an inadequate
remedy. Thus, a petitioner must show valid reasons why
the issues raised in his petition for certiorari could not
have been raised on appeal (Banco Filipino Savings and
Mortgage Bank vs. CA, 334 SCRA 305).
Certiorari as a Mode of
Appeal (Rule 45)
Called petition for review
on certiorari, is a mode of
appeal, which is but a
continuation of the
appellate process over the
original case;
Seeks to review final
judgments or final orders;

Special civil
action for
certiorari,
prohibition and
mandamus;

Certiorari as a Special
Civil Action (Rule 65)
A special civil action that
is an original action and
not a mode of appeal, and
not a part of the appellate
process but an
independent action.
May be directed against
an interlocutory order of
the court or where not
appeal or plain or speedy
remedy available in the
ordinary course of law

DISTINCTIONS BETWEEN CERTIORARI UNDER RULES

45, 64, AND 65
Rule 65
Rule 64 for
Review of
Certiorari,
COMELEC and
judgment,
Prohibition
COA
final orders or
and
resolutions of
Mandamus
other
tribunals,
persons and
officer (Rule
45)

Under BP 129:
RTC, CA or SC
has concurrent
and original
jurisdiction;
under special
laws: COMELEC
and
Sandiganbayan
has special
certiorari
jurisdiction
BP 129: Original
and Concurrent
Jurisdiction (RTC,
CA and SC)
The petitioner
has a choice to
file in the RTC,
and if an
adverse decision
is given, he can
elevate it to the
CA, and then the
SC. If directly
filed in the SC,
SC has the
discretion
whether to
outrightly
dismiss the
petition or
remand it to
the CA
because of
insufficiency in
form and/or
substance in

Appeal to the SC
using Rule 65
from the
COMELEC En
Banc

Petition for
Review or
Appeal by
Certiorari;

Directed only to
the judgments,
final orders or
resolutions of
the COMELEC
and COA;

Review of
judgment, final
orders or
resolutions of
the CA,
Sandiganbayan,
CTA, RTC or
other courts

Rules of the
COMELEC states
that only
decisions of the
En Banc shall be
appealable in
the SC) and CoA
acting as quasijudicial bodies
(final orders or
judgments
SC

Called petition
for review on
certiorari, is a
mode of appeal,
which is but a
continuation of
the appellate
process over the
original case;

CA, SC

Appellate

Appellate

Failure of
petitioner to
comply with the
formal
requirements
under Sec. 5
Rule 64 will
cause the
petition to be
dismissed.

SC may deny
the decision
motu propio 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.

accordance with
the principle of
hierarchy of
courts.
Raises questions
of jurisdiction
because a
tribunal, board
or officer
exercising
judicial or quasijudicial functions
has acted
without
jurisdiction or in
excess of
jurisdiction or
with grave
abuse of
discretion
amounting to
lack of
jurisdiction;
Filed not later
than 60 days
from notice of
judgment, order
or resolution
appealed from
Extension no
longer allowed;
(Motion for
extension of
period to file is
not allowed)
Motion for
reconsideration
or for new trial is
required.
If a motion for
reconsideration
or new trial is
filed, another 60
days shall be
given to the
petitioner (Fresh
Period
Rule/Neypes
Doctrine) (A.M.
No. 02-03-SC)
Unless a writ of
preliminary
injunction or
temporary
restraining order
is issued, it does
not stay the
challenged
proceeding
The judge, court,
quasi-judicial
agency, tribunal,
corporation,
board, officer or
person shall be
public
respondents
who are
impleaded in the
action

Court exercises
original
jurisdiction
Petition is based
on questions of
law

Petition is based
on questions of
law

Filed within 30
days from notice
of judgment,
final order or
resolution
sought to be
reviewed
No extension of
period
mentioned in
Rule 64

Filed within 15
days from notice
of judgment,
final order or
resolution
appealed from

The filing of
Motion for
reconsideration
or for new trial,
if allowed under
the procedural
rules of the
Commission,
shall interrupt
period fixed

Motion for
reconsideration
is not required

Extension of 30
days may be
granted for
justifiable
reasons

The court is in
the exercise of
its appellate
jurisdiction and
power of review

The court is in
the exercise of
its appellate
jurisdiction and
power of review

SC, CA and RTC have original jurisdiction over petitions

under Rule 65. Thus, there is concurrence of jurisdiction
among these three courts. Theoretically, petitioner has a
choice as to where to file. The law does not compel him to
file a petition first in the RTC, then the CA, and finally in
the SC. There is no such provision in BP 129 and the
Constitution.
However, SC had sought to prevent being swamped by
petitions under Rule 65. To remedy the abuse by
petitioners, SC devised the principle of hierarchy of courts
under Section 4 of Rule 65. This will limit the choice that
theoretically a petitioner has. Effectively, petitioners are
prohibited from going directly to the SC under Rule 65.
Petitioner must file first in the RTC or in the CA. If a petition
was filed directly in SC, it will outrightly dismiss a petition
if such petition is insufficient in form or substance. Even if
the petition is well-crafted, a single omission, such as the
PTR number, shall dismiss it for being insufficient in form.
Q: What are the grounds for the outright dismissal
of the petition?
A: (Sec. 6, Rule 64)
1. Petition is not sufficient in form and substance (Sec. 5,
Rule 64)
2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Q: What are the grounds for the filing of a petition
for certiorari?
A: That a tribunal, board or officer exercising judicial or
quasi-judicial functions acted:
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to lack or excess
of jurisdiction
Note: It is commenced by the filing of a verified petition
accompanied by certified true copy of the judgment, order
or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto and a sworn
certification of non-forum shopping. (Sec. 1, Rule 65).

Does not stay

the execution
unless SC shall
direct otherwise
upon such terms
as it may deem
just

Stays the
judgment or
order appealed
from

The COMELEC
and COA shall
be public
respondents
who are
impleaded in the
action

The appellant
and the appellee
are the original
parties to the
action, and the
lower court or
quasi-judicial
agency is not
impleaded

Q: When is certiorari under Rule 65 unavailable?

A:
1. Summary procedure
2. Writ of Amparo
3. Writ of Habeas Data
4. Small claims cases (Riano, Civil Procedure: A
Restatement for the Bar, p. 629, 2009 ed.)
Q: When is prohibition issued?
A:
GR: Prohibition does not ordinarily lie to restrain an act
which is already fait accompli.
XPN: It will lie to prevent the creation of a new province
by those in the corridors of power who could avoid judicial
intervention and review by merely speedily and stealthily
completing the commission of such illegality. (Tan v.
COMELEC, G.R. No. 73155, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy where
a motion to dismiss is wrongfully denied (Enriquez v.
Macadaeg, G.R. No. L-2422, Sept. 30, 1949)

Is it fatal for a petitioner to file a petition for

certiorari, although the true remedy is a petition for
prohibition?
For instance, where a motion to dismiss is filed by the
defendant on the ground of absence of jurisdiction over
the subject matter of the case. Said motion was denied.
The defendant could appeal to the higher court via a
petition under Rule 65.
We do not follow Rule 16 which tells the defendant that
when his motion to dismiss is denied, he has to file an
answer within the remaining period. The SC has
recognized the propriety of filing a petition for certiorari,
prohibition or mandamus if a motion to dismiss founded on
lack of jurisdiction over the subject matter has been
denied.
The petitioner files a petition for certiorari in the CA or SC.
The true remedy, according to the SC, is a petition for
prohibition, not a certiorari. From the facts stated above, a
prohibition is the correct remedy. As the
petitioner/defendant had filed a petition for certiorari, can
CA/SC outrightly deny the petition because it is the wrong
remedy? SC said no. The petition for certiorari should
instead be treated as a petition for prohibition. So it seems
under this attitude of liberal interpretation of statutes, it is
not fatal for a petitioner to choose the remedy provided
under Rule 65.
Remember that certiorari is different from prohibition and
mandamus, although they are all contained in one Rule.
The SC will simply treat the petition for certiorari as a
petition for prohibition. If you will analyze the requisites of
a petition for certiorari and prohibition, they are practically
the same. There is not much difference between the
concept given in Section 1 Rule 65 (Certiorari) and Section
2 Rule 65 (Prohibition). The only differences is that in
certiorari, the petitioner asks that the judgment or
interlocutory order be annulled or set aside; in prohibition,
the petitioner simply asks the prohibition court to prevent
the respondent court from going ahead with the
proceedings, and in prohibiting the respondent court, the
prohibition court will be effectively telling the respondent
court that the denial, the interlocutory order or the
judgment rendered therein should be set aside and
annulled because it is a wrong final order or wrong
interlocutory order.
CERTIORARI
That the petition
is directed
against a
tribunal, board
or officer
exercising
judicial or quasijudicial
functions;
The tribunal,
board or officer
has acted
without, or in
excess of
jurisdiction or
with abuse of
discretion
amounting to
lack or excess or
jurisdiction

PROHIBITION
The petition is
directed against
a tribunal,
corporation,
board or person
exercising
judicial, quasijudicial, or
ministerial
functions;
The tribunal,
corporation,
board or person
must have acted
without or in
excess of
jurisdiction or
with grave
abuse of
discretion
amounting to
lack of

MANDAMUS
The plaintiff has
a clear legal
right to the act
demanded;

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

jurisdiction;

There is no
appeal or any
plain, speedy
and adequate
remedy in the
ordinary course
of law.
Accompanied by
a certified true
copy of the
judgment or
order subject of
the petition,
copies of all
pleadings and
documents
relevant and
pertinent
thereto, and
sworn
certification of
non-forum
shopping under
Rule 46.
Prohibition is an
extraordinary
writ
commanding a
tribunal,
corporation,
board or person,
whether
exercising
judicial, quasijudicial or
ministerial
functions, to
desist from
further
proceedings
when said
proceedings are
without or in
excess of its
jurisdiction, or
with abuse of its
discretion, there
being no appeal
or any other
plain, speedy
and adequate
remedy in the
ordinary course
of law (Sec. 2,
Rule 65).

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

There is no
appeal or any
plain, speedy
and adequate
remedy in the
ordinary course
of law.
Accompanied by
a certified true
copy of the
judgment or
order subject of
the petition,
copies of all
pleadings and
documents
relevant and
pertinent
thereto, and
sworn
certification of
non-forum
shopping under
Rule 46.
Mandamus is an
extraordinary
writ
commanding a
tribunal,
corporation,
board or person,
to do an act
required to be
done:
(a) When he
unlawfully
neglects the
performance of
an act which the
law specifically
enjoins as a
duty, and there
is no other plain,
speedy and
adequate
remedy in the
ordinary course
of law; or
(b) When one
unlawfully
excludes
another from the
use and
enjoyment of a
right or office to
which the other
is entitled (Sec.
3, Rule 65).
Special civil
action
To compel the
performance of
a ministerial and
legal duty;

The defendant
unlawfully
neglects the
performance of
the duty
enjoined by law;
There is no
appeal or any
plain, speedy
and adequate
remedy in the
ordinary course
of law.

Main action for

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

Ordinary civil
action
For the
defendant either
to refrain from
an act or to
perform not
necessarily a
legal and
ministerial duty;

May be directed
against entities
exercising
judicial or quasijudicial, or
ministerial
functions
Extends to
discretionary
functions

May be directed
against judicial
and non-judicial
entities

Directed against
a party

Extends only to
ministerial
functions

Always the main

action

Always the main

action

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

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

Does not
necessarily
extend to
ministerial,
discretionary or
legal functions;
May be the main
action or just a
provisional
remedy
May be brought
in the Regional
Trial Court which
has jurisdiction
over the
territorial area
where
respondent
resides.

But in our example, when a motion to dismiss founded on

lack of jurisdiction is denied, it is also correct for the
petitioner to make use right away of Rule 65. If he
immediately files a petition for certiorari either in the CA or
SC, that petition for certiorari will not be denied because it
is not compliant with the requirements of Sections 1 and 2
Rule 65, that there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law. This
phrase serves as an essential requisite before we can
properly file a petition under Rule 65. In fact, it is this
phrase which is the source of the principle that we learned
that in Rule 65, a motion for reconsideration is a MUST.
This is not expressly mentioned in Rule 65. Motion for
reconsideration is not even mentioned in Rule 65. A
motion for reconsideration is always a plain, speedy
and adequate remedy in the ordinary course of law.
Note: General Rule: Motion for reconsideration is a
condition precedent in the filing of a petition for
certiorari under Rule 65. Motion for reconsideration
is a plain and speedy remedy available prior to
petition under Rule 65.
In Rule 65, if we examine the caption of a petition under
Rule 65, we will discover that there are at least 2
respondents, one is the private respondent, the other is
the public respondent. The public respondent is the
agency, court or officer/person who exercises judicial or
quasi-judicial functions (in case of prohibition, public
respondent is the agency, court or officer/person who
exercises judicial , quasi-judicial or ministerial functions).
In other words, we always involve a public officer or
agency or court on or officer/person who exercises
judicial , quasi-judicial or ministerial functions under Rule
65. We cannot get a petition for certiorari under Rule 65
with only the private respondent. We must implead the
public respondent.
Although the rules describe the public respondent as a
nominal party, it is in fact an indispensible party under
Rule 65, because it is the final order or judgment that it

had issued that is being assailed or challenged. The

reason why Rule 65 calls the public respondent only as a
nominal party is because in Rule 65 itself, it is provided
that the public respondent is not authorized to enter his
appearance and to defend himself before the certiorari
court. The fate of the public respondent lies in the hands of
the private respondent. It is the private respondent who
will argue before the higher court and explain the
correctness of the interlocutory order or judgment that is
being assailed under Rule 65. It is only in rare instances
where the higher court will allow the public respondent to
argue on his own behalf or submit his own papers in the
certiorari court. He should always rely on the papers and
pleadings that are submitted by the private respondent.
Because of the inherent nature of the petition under Rule
65, that there is always a public respondent, the petition
under Rule 65 does not have to comply with that condition
precedent of prior barangay conciliation. This is one of the
exceptions given in the LGC, where the action involves a
government officer or employee in the performance of his
duty.
And the grounds of course are very strictly interpreted. In
Rule 65 Sections 1 and 2, the ground is that the public
respondent has acted without jurisdiction, in excess of
jurisdiction or with grave abuse of discretion amounting to
lack of jurisdiction.
The definition of Grave abuse of discretion amounting to
lack or excess of jurisdiction is a very simple definition
given by the SC, when the public respondent acts
whimsically, despotic and/or arbitrarily. The SC did not
elaborate on whimsical, despotic or arbitrary, so it would
have to be resolved on a case-to-case basis.
For instance, a case is pending in the RTC for the
collection of an indebtedness. The plaintiff applies
for the issuance of a writ of preliminary attachment.
The court grants and issues the writ. Does the RTC
act arbitrarily, acting gravely in abuse of its
discretion if it grants and issues the writ of
preliminary attachment?
Yes, if that complaint does not fall any one of the cases
mentioned in Rule 57:
(a) In an action for the recovery of a
specified amount of money or damages,
other than moral and exemplary, on a
cause of action arising from law,
contract, quasi-contract, delict or quasidelict against a party who is about to
depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation, or
an attorney, factor, broker, agent, or
clerk, in the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful
violation of duty;
(c) In an action to recover the possession
of property unjustly or fraudulently
taken, detained or converted, when the
property, or any part thereof, has been
concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
(d) In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon

which the action is brought, or in the

performance thereof;
(e) In an action against a party who has
removed or disposed of his property, or
is about to do so, with intent to defraud
his creditors; or
(f) In an action against a party who does
not reside and is not found in the
Philippines, or on whom summons may
be served by publication.
No, if the case does not fall under the above-mentioned
cases under Rule 57 Section 1. Thus, the court would have
acted in grave abuse of its discretion amounting to lack or
excess of jurisdiction.
Hence, in the issuance of provisionary remedies or orders,
it could happen that a court will gravely abuse its
discretion amounting to lack or excess of jurisdiction, a
very despotic and arbitrary act of a court.
For instance, the defendant files an answer containing a
negative defense properly crafted. Then the court grants a
summary judgment or rendered a judgment on the
pleadings. That is an arbitrary act of the court. But if the
decision rendered is a summary judgment or judgment on
the pleadings, Rule 65 may not be a correct remedy. This is
because under our Rules, because from a judgment, the
remedy is to appeal from the judgment. Whenever there is
an appeal available, you better forget Rule 65, because it
is available only when there is no appeal or other plain,
speedy and adequate remedy available in the ordinary
course of law. This is the rule that we must always follow.
Although, there are rare instances that the SC allowed a
petition for Rule 65 although appeal is still available. If you
will remember, there are certain exceptions to the general
rule that a motion for reconsideration is a must before
making use of Rule 65. There are also rare instances where
the court allowed a petition under Rule 65 even if appeal
was still available, the reason being that in certain
instances, appeal is not a plain, speedy and adequate
remedy available in the ordinary course of law.
Q: Is it an absolute rule that before recourse to
certiorari is taken a motion for reconsideration must
be filed?
A:
GR: Petition for certiorari will not be entertained
unless the public respondent has been given first
the opportunity through a motion for
reconsideration to correct the error being imputed
to him.
XPNs: A prior motion for reconsideration is not
necessary to entertain a petition for certiorari
where:
1. Order is a patent nullity, as where the
court a quo has no jurisdiction;
2. Questions raised in the certiorari
proceedings have been duly raised and
passed upon by the lower court, or are the
same as those raised and passed upon in
the lower court;
3. Urgent necessity for the resolution of the
question, and any further delay would
prejudice the interests of the Government
or of the petitioner, or the subject matter of
the action is perishable;
4. Under the circumstances, a motion for
reconsideration would be useless;
5. Petitioner was deprived of due process
and there is extreme urgency for relief;

6. In a criminal case, relief from an order of

arrest is urgent and the granting of such
relief by the trial court is improbable;
7. Proceedings in the lower court are a
nullity for lack of due process;
8. Proceedings were ex parte or in which
the petitioner had no opportunity to object;
and
9. Issue raised is one purely of law or where
public interest is involved.
Can a petition under Rule 65 that is filed to
challenge an interlocutory order or judgment be
enough to suspend all proceedings in the lower
court and await the decision of the certiorari court
on the petition for certiorari?
If the litigant is aggrieved by an order or judgment
that is inappealable, it is not allowed under Rule 65
for the trial court to suspend proceedings in the
case pending before it. Proceedings will only be
suspended if the higher court issues TRO or writ of
PI. Thus, it is practical to ask along with the petition
for an issuance of TRO or writ of PI.
Take note of the modifications in Rule 65 concerning the
abuse of parties and lawyers in using petition for certiorari,
prohibition or mandamus. It is under the principle of res
ipsa loquitur. In the past, lawyers usually file such
petitions whenever motions are denied, citing abuse
of discretion whereas under Rule 65, the required
ground is GRAVE ABUSE of discretion. In order to
prevent this practice, SC incorporated in Rule 65 the
application of the civil law principle of res ipsa
loquitur. If a lawyer and his client will go up to CA or
SC under Rule 65, and the court resolves that the
petition was manifestly without merit or for
purposes of delay, the lawyer and client will be held
in contempt of court for filing such manifestly
unmeritorious petition or to pay a solidary debtor
treble costs, and there may be administrative
sanctions against the lawyer.
If the writ of mandamus is issued as requested,
there is propriety of awarding damages in favor of
the petitioner, so it is automatically awarded under
Section 3 of Rule 65.In petitions for certiorari,
petitioner may include petition for award of
damages. If proven, SC may award such damages.
SEC. 3. Petition for mandamus.
When any tribunal, corporation, board,
officer or person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust, or station, or
unlawfully excludes another from the use
and enjoyment of a right or office to
which such other is entitled, and there is
no other plain, speedy and adequate
remedy in the ordinary course of law, the
person aggrieved thereby may file a
verified petition in the proper court,
alleging the facts with certainty and
praying that judgment be rendered
commanding the respondent,
immediately or at some other time to be
specified by the court, to do the act
required to be done to protect the rights
of the petitioner, and to pay the
damages sustained by the

petitioner by reason of the wrongful

acts of the respondent.
The petition shall also contain a sworn
certification of non-forum shopping as
provided in the third paragraph of
section 3, Rule 46.
Rule 65 does not specifically provide for award of damages
under Sections 1 and 2 (Certiorari and Prohibition
respectively). But the SC resolved that in proper instances,
if there is a prayer for damages incorporated in a petition
for certiorari or prohibition, there is nothing wrong if the
court grants the writ of certiorari or mandamus and award
damages in favor of the petitioner, although none is
provided for it in Sections 1 and 2.The justification
given by the SC is that in a petition for certiorari or
prohibition, there is always that prayer for any
additional relief which the court will deem just and
equitable. SC said that is enough justification for the
award of damages, so long as the petitioner is able to
present proof of damages.
Why do we consider Rule 65 as a special civil
action?
1. Procedurally, the court can dismiss the petition for
insufficiency in form and substance, which has a very
broad in interpretation. So even if the SC has
jurisdiction, it can outrightly dismiss the petition.
2.If the court did not dismiss the petition outrightly, the
court may not issue summons. It may instead issue
an order to comment. Once a comment is submitted,
the court acquires jurisdiction over that party. (Similarly,
no summons is issued in cases of interpleader and
declaratory relief and other similar remedies.)
3. Since the court does not issue summons, issuing
instead a plain order to comment within a fixed period, if
no comment is submitted, the court cannot declare
respondent in default.
4. Under Rule 65, the court will not conduct a pretrial or a trial. The issue is a very limited issue. It is not
only a mere question of law raised in Rule 65. That
question of law is one of law that it is limited to the
issue of jurisdiction (without or in excess with grave
abuse of discretion). There could be several questions of
law that could be raised. But, that question of law may not
involve jurisdiction at all. But in Rule 65, the issue is one of
law and it is limited to the issue of jurisdiction, whether or
not the respondent committed grave abuse of discretion
amounting to lack or excess of jurisdiction.
Also , the submission of the petition or Order to comment
requires parties to submit the pleadings already submitted
in the lower courts. So, the court will just analyze the
documents presented before it via the documents
attached to the petition or the comment, and thus there is
no need for a trial.
What is the remedy of the aggrieved party in a
petition for certiorari?
The remedy is appeal, either by petition for review or
petition on certiorari (Rule 45).

TABLE OF COMPARISON FOR THE WRITS OF HABEAS

CORPUS, AMPARO, HABEAS DATA AND KALIKASAN
HABEAS
AMPARO
HABEAS
KALIKASA
CORPUS
DATA
N
Literal interpretation
You have
To protect
You have
It is a
the body
the data
Filipino
word which
means
nature in
English
Governing Rule
Rule 102
A.M. No.
A.M. No.
A.M. No.
07-9-12-SC
08-1-16-SC
09-6-8-SC
Description
Writ
Remedy
Remedy
Special
directed to
available to
available to
remedy
the person
any person
any person
available
detaining
whose right
whose right
to a natural
another,
to life,
to privacy
or juridical
commandin
liberty, and
in life,
person,
g him to
security is
liberty or
entity
produce the violated or
security is
authorized
body of the
threatened
violated or
by law,
prisoner at
with
threatened
peoples
a
violation by
by an
organizatio
designated
an unlawful
unlawful
n, nontime and
act or
act or
governmen
place, with
omission of
omission of
tal
the day and a public
a public
organizatio
cause of his official or
official or
n, or any
capture and employee,
employee,
public
detention,
or of a
or of a
interest
to do,
private
private
group
submit to,
individual
individual
accredited
and receive
or entity.
or entity
by or
whatsoever
engaged in
registered
the court or
the
with any
judge
gathering,
governmen
awarding
collecting,
t agency,

the writ
shall
consider in
that behalf.

Involves
the right to
liberty of
and rightful
custody by
the
aggrieved
party.

There is an
actual
violation of
the
aggrieved
partys
right.

or storing
of data or
information
regarding
the person,
family,
home and
correspond
ence of the
aggrieved
party.

Coverage
Involves
Involves
the right to
the right to
life, liberty,
privacy in
and
life, liberty,
security of
and
the
security of
aggrieved
the
party and
aggrieved
covers
party and
extralegal
covers
killings and
extralegal
enforced
killings and
disappeara
enforced
nces.
disappeara
nces.
Rights violated
There is an
There is an
actual or
actual or
threatened
threatened
violation of
violation of
the
the
aggrieved
aggrieved
partys
partys
right.
right.

Where to file

on behalf of
persons
whose
constitution
al right to a
balanced
and
healthful
ecology is
violated, or
threatened
with
violation by
an unlawful
act or
omission of
a public
official or
employee,
or private
individual
or entity,
involving
environmen
tal damage
of such
magnitude
as to
prejudice
the life,
health or
property of
inhabitants
in two or
more cities
or
provinces.
Constitution
al right to a
balanced
and
healthful
ecology.

There is an
actual or
threatened
violation of
ones right
to a
healthful
and
balanced
ecology
involving
environmen
tal damage.

RTC or any
judge
thereof, CA
or any
member
thereof in
instances
authorized
by law; or
SC or any
member
thereof.

1. Party for
whose relief
it is
intended;
or
2. Any
person on
his behalf

May or may
not be an
officer.

RTC of the
place
where the
threat, act
or omission
was
committed
or any of its
elements
occurred;
SB or any
justice
thereof; CA
or any
justice
thereof; SC
or any
justice
thereof.

RTC where
the
petitioner
or
respondent
resides, or
that which
has
jurisdiction
over the
place
where the
data or
information
is gathered,
collected or
stored, at
the option
of the
petitioner;
or with SC,
CA or SB
when the
action
concerns
public data
files or
governmen
t offices.
Who may file a petition
In the
In the
following
following
order:
order:
1. Any
1. Any
member of
aggrieved
the
party;
immediate
2. However,
family
in cases of
2. Any
extralegal
ascendant,
killings and
descendant
enforced
, or
disappeara
collateral
nces:
relative of
a. Any
the
member of
aggrieved
the
party within immediate
the 4th civil
family
degree of
b. Any
consanguini ascendant,
ty or
descendant
affinity
, or
3. Any
collateral
concerned
relative of
citizen,
the
organizatio
aggrieved
n,
party within
association
the 4th civil
or
degree of
institution
consanguini
ty or
affinity
Respondent
Public
Public
official or
official or
employee
employee
or a private
or a private
individual
individual
or entity.
or entity
engaged in
the
gathering,

In SC or any
stations of
the CA.

A natural or
juridical
person,
entity
authorized
by law,
peoples
organizatio
n, nongovernmen
tal
organizatio
n, or any
public
interest
group
accredited
by or
registered
with any
governmen
t agency.

Public
official or
employee,
private
individual
or entity.

HABEAS
CORPUS
If granted
by SC or
CA:
enforceable
anywhere
In the
Philippines;
If granted
by RTC:
enforceable
only within
the judicial
district
Payment is
required
Note: Rule
on indigent
petitioner
applies.

collecting
or storing
of data or
information
regarding
the person,
family,
home and
correspond
ence of the
aggrieved
party.
AMPARO
HABEAS
DATA
Enforceability of the writ
Enforceable anywhere in
the Philippines regardless
of who issued the same

Docket fees
Petitioner is
Payment is
exempted
required.
from
Note: Rule
payment
on indigent
petitioner
applies.
Service of writ
Served
Served
upon the
upon the
respondent
respondent
personally;
personally;
or
or
substituted
substituted
service
service

On the day
specified in
the writ

KALIKASA
N
Enforceable
anywhere
in the
Philippines

Petitioner is
exempted
from
payment

Served
Served
upon the
upon the
person to
respondent
whom it is
personally;
directed,
or
and if not
substituted
found or
service.
has not the
prisoner in
his custody,
to the other
person
having or
exercising
such
custody
Person who makes the return
Officer by
Respondent
Respondent
Respondent
whom the
prisoner is
imprisoned
or the
person in
whose
custody the
prisoner is
found
When to file a return

If granted
by the SC
or CA:
returnable
before the
court or
any
member or
before RTC
or any
judge
thereof;
If granted
by RTC:
returnable
before such
court

Within 5
working
days after
service of
the writ,
the
respondent
shall file a
verified
written
return
together
with
supporting
affidavits.

The
respondent
shall file a
verified
written
return
together
with
supporting
affidavits
within 5
working
days from
service of
the writ,
which
period may
be
reasonably
extended
by the
Court for
justifiable
reasons.
Return
If issued by
If issued by
RTC:
RTC:
returnable
returnable
before such
before such
court;
court;
If issued by
If issued by
SB or CA or
SB or CA or
any of their
any of their
justices:
justices:
returnable
returnable
before such
before such
court or to
court or to
any RTC of
any RTC of
the place
the place
where the
where the
threat, act
petitioner
or omission
or
was
respondent
committed
resides or
or any of its that which
elements
has
occurred;
jurisdiction
If issued by
over the
SC or any
place
of its
where the
justices:
data or
returnable
information
before such
is gathered,
court, or
collected or
before SB,
stored;
CA, or to
If issued by
any RTC of
SC or any
the place
of its
where the
justices:
threat, act
returnable
or omission
before such
was
court, or
committed
before SB,
or any of its CA, or to
elements
any RTC of
occurred
the place
where the
petitioner
or
respondent
resides or
that which

Within nonextendible
period of 10
days after
the service
of writ.

If issued by
SC,
returnable
before such
court or CA.

has
jurisdiction
over the
place
where the
data or
information
is gathered,
collected or
stored
General denial
Not
Not
Not
Not
prohibited.
allowed.
allowed.
allowed.
HABEAS
AMPARO
HABEAS
KALIKASA
CORPUS
DATA
N
Liability of the person to whom the writ is
directed if he refuses to make a return
Forfeit to
Imprisonme
Imprisonme
Indirect
the
nt or fine
nt or fine
contempt.
aggrieved
for
for
party the
committing
committing
sum of
contempt.
contempt.
P1000, and
may also
be
punished
for
contempt.
Hearing
Date and
Summary
Summary
The hearing
time of
hearing
hearing
including
hearing is
shall be
shall be
the
specified in
conducted
conducted
preliminary
the writ.
not later
not later
conference
than 7 days
than 10
shall not
from the
working
extend
date of
days from
beyond
issuance of
the date of
sixty (60)
the writ.
issuance of
days and
the writ.
shall be
given the
same
priority as
petitions for
the writs of
habeas
corpus,
amparo and
habeas
data.
Period of appeal
Within 48
5 working
5 working
Within
hours from
days from
days from
fifteen (15)
notice of
the date of
the date of
days from
the
notice of
notice of
the date of
judgment
the adverse the
notice of
or final
judgment.
judgment
the adverse
order
or final
judgment
appealed
order.
or denial of
from.
motion for
reconsidera
tion.
Prohibited pleadings
None
1. Motion to dismiss;
1. Motion to
2. Motion for extension of
dismiss;
time to file opposition,
2. Motion
affidavit, position paper
for
and other pleadings;
extension
3. Dilatory motion for
of time to
postponement;
file return;
4. Motion for a bill of
3. Motion

particulars;
5. Counterclaim or cross claim;
6. Third - party complaint;
7. Reply;
8. Motion to declare
respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of
interlocutory orders or
interim relief orders; and
12. Petition for certiorari,
mandamus or prohibition
against any interlocutory
order.

for
postponem
ent;
4. Motion
for a bill of
particulars;
5.
Counterclai
m or crossclaim;
6. Thirdparty
complaint;
7. Reply;
and
8. Motion to
declare
respondent
in default.

SPECIAL CIVIL ACTIONS IN THE KALIKASAN

CIRCULAR
The Writ of Kalikasan is a mini RoC for environmental
cases. By itself, the circular appears to contain all rules
pertaining to civil cases arising out of Kalikasan laws as
well as criminal procedures.
2 special civil actions:
~Writ of Kalikasan
~Petition for Continuing Mandamus
Why does the Kalikasan circular consider a petition
for a writ of kalikasan and continuing mandamus as
a special civil action?
It is because of the fact that although these are governed
by ordinary rules of procedure, there are instances where
there is a special procedure which has to be followed in
hearing said special proceeding.
A Petition of a Writ of Kalikasan as a special civil action is
entirely different from ordinary civil cases. The sheer
number of parties, as well as the magnitude of the
prejudice that could be suffered by the petitioners (the
threat to their life, liberty and property),is such that they
are the inhabitants of at least 2 or more provinces or cities.
If we talk about numbers, the actual number of inhabitants
in a typical province could number in the hundreds of
thousands. This is a perfect example of a class suit. They
stand to be prejudiced in their right to their life, liberty and
property by a violation or a threat to violate environmental
laws by a natural person or juridical entity. Even if there is
just a petitioner, a juridical entity, an NGO or an accredited
public interest group, they can file a petition on behalf of
two or more provinces or cities. The parties are so
numerous that it will be impractical for all of them to be
brought before the court.
To make matters simple procedurally, take note that the
procedures in Habeas Corpus and Amparo as special
proceedings are practically the same procedures followed
in Kalikasan cases.
Upon the filing of the petition, and the court analyzes the
petition, and the court is convinced of the need for the writ
to be issued, the writ will be immediately issued without
need of hearing the side of the respondents. The writ can
be issued right away by the court as long as the
allegations in the petition are complete, that petition is
meritorious by itself. The court may issue also an order
requiring respondents to file a VERIFIED RETURN (not an

answer). In writ of HC and Amparo, return is also required

to be filed by respondents. The Return must contain the
respondents explanation as to his side. The writ is a
special civil action in this contest because the writ is
issued right away, even before the respondent is given the
chance to give his side, even before the respondent can
file his return.
The Kalikasan circular has lots of sections as to the use of
discovery measures. But, they are treated not as discovery
measures, but as provisional orders in the Kalikasan
circular.
After the issuance of the writ of Kalikasan, even without
hearing the respondent, the Kalikasan court can issue a
provisional remedy called cease and desist order, which is
similar to a TRO in civil cases. But, it does not have an
expiration date, unlike a TRO in ordinary procedure, the
duration depends upon the discretion of the Kalikasan
court.
Also, there are only 2 courts that can take cognizance of a
petition for a writ of Kalikasan, the SC and the CA.
Since there is no answer that is required to be filed by the
respondent, failure by the respondent to file a verified
return does not result in default. In ordinary civil actions
involving environmental laws, we follow a different
procedure.
If the defendant in an ordinary civil procedure does not file
an answer, the defendant will be declared in default even
if there is no motion initiated by a plaintiff. That is in an
ordinary civil action involving environmental laws which is
not a special civil action of Kalikasan filed only in the CA or
SC. So if the respondents do not submit a verified return,
the court will go ahead with analyzing the merit of the
petition for a writ of Kalikasan.
A decision of the Kalikasan court in a special civil action of
Kalikasan is immediately executory, although there could
be an appeal. If the Circular says that the decision is
immediately executory, it does not mean that appeal is no
longer available. A decision could be executed as a matter
of right even if the aggrieved party still has the right to
appeal. This is an example of a judgment that is
immediately executory, but the aggrieved party enjoys the
right of appeal.
In a special civil action for a writ of kalikasan, an
appeal under Rule 45 is filed in the SC. Questions of
fact could be raised therein, as an exception to the
general rule in Rule 45 that only questions of law
could be raised before the SC.
Judgment in favor of petitioner, aside from being
immediately executory, partakes of a permanent
prohibitory mandatory injunction and at the same time a
permanent mandatory injunction. That is the tenor of a
judgment in Kalikasan cases. The judgment will always
contain a provision in which respondent is permanently
prohibited from violating or from doing an act that will
violate environmental laws, and the permanently
mandatory part is that the LGU is given a mandate to
enforce environmental laws.
Writ of Continuing Mandamus in Kalikasan Cases
It is patterned after the mandamus contained in Rule 65. If
you will compare the definition of mandamus in Rule 65 to
the definition of continuing mandamus in the Kalikasan
Circular, there is only the inclusion in continuing

mandamus of the clause pertaining to the enforcement of

environmental laws (in connection with the
enforcement or violation of an
environmental law rule or regulation or a right
therein, Section 1 Rule 8 Rules of Procedure on
Environmental Cases).
MCQ
The idea or concept of continuing mandamus. What
is the source of this writ of continuing mandamus?
1. an invention of the SC
2. it was taken from India
3. It was taken from USA
4. it is adopted from Latin American Countries just like
Amparo.
Answer 2. it came from the SC of India, which seems to
have a good experience in enforcing environmental laws.
Why do we have a writ of continuing mandamus
when we already have mandamus under Rule 65?
Cannot the writ of Mandamus under Rule 65 satisfy
the requirements of a continuing mandamus?
Mandamus under Rule 65 under Sec. 3 cannot
satisfy the requirement of a continuing mandamus.
It will negate the state policy of enforcing strictly
environmental laws. A final and executory judgment
under Rule 39 can only be enforced through a
motion in the first five years. After that, the next
five years, a case for revival of judgment must be
had. In continuing mandamus, it is designed to
avoid the process of motion and then filing a case
for revival of judgment. The continuing mandamus
requires continuous enforcement of the judgment.
Via the continuing mandamus, the government is
given a duty until the objective sought in achieved.
MMDA vs. Concerned Citizens Writ of Kalikasan
and Continuing Mandamus petition to clean Manila
Bay 2011
MMDA and various agencies were ordered by SC to clean
Manila Bay until it is returned to its pristine condition.
(Without Continuing Mandamus, MMDA will not be
compelled to execute the judgment.)
MMDA v. Concerned Residents of
Manila Bay
The Cleaning or Rehabilitation of
Manila Bay Can be Compelled by
Mandamus
Generally, the writ of mandamus lies
to require the execution of a
ministerial duty. A ministerial duty
is one that requires neither the
exercise of official discretion nor
judgment. It connotes an act in
which nothing is left to the
discretion of the person executing
it. It is a simple, definite duty
arising under conditions admitted or
proved to exist and imposed by
law.Mandamus is available to compel
action, when refused, on matters
involving discretion, but not to direct the
exercise of judgment or discretion one
way or the other.
***
Respondents, on the other hand, counter
that the statutory command is clear and
that petitioners duty to comply with and

act according to the clear mandate of

the law does not require the exercise of
discretion. According to respondents,
petitioners, the MMDA in particular,
are without discretion, for example,
to choose which bodies of water
they are to clean up, or which
discharge or spill they are to
contain. By the same token,
respondents maintain that
petitioners are bereft of discretion
on whether or not to alleviate the
problem of solid and liquid waste
disposal; in other words, it is the
MMDAs ministerial duty to attend
to such services.
We agree with respondents.
First off, we wish to state that
petitioners obligation to perform their
duties as defined by law, on one hand,
and how they are to carry out such
duties, on the other, are two different
concepts. While the implementation
of the MMDAs mandated tasks may
entail a decision-making process,
the enforcement of the law or the
very act of doing what the law
exacts to be done is ministerial in
nature and may be compelled by
mandamus. We said so in Social
Justice Society v. Atienza in which
the
Court
directed
the
City
of Manila to enforce, as a matter of
ministerial duty, its Ordinance No.
8027 directing the three big local oil
players to cease and desist from
operating their business in the socalled Pandacan Terminals within
six months from the effectivity of
the ordinance. But to illustrate with
respect to the instant case, the MMDAs
duty to put up an adequate and
appropriate sanitary landfill and solid
waste and liquid disposal as well as other
alternative garbage disposal systems is
ministerial, its duty being a statutory
imposition. The MMDAs duty in this
regard is spelled out in Sec. 3(c) of
Republic Act No. (RA) 7924 creating the
MMDA.
This
section
defines
and
delineates the scope of the MMDAs
waste disposal services to include:
Solid
waste
disposal
and
management
which
include
formulation
and implementation of
policies,
standards,
programs and projects
for proper and sanitary
waste disposal. It shall
likewise
include
the establishment
and
operation
of
sanitary land fill and
related facilities and
the implementation of
other
alternative
programs intended to

reduce,
reuse
and
recycle solid waste.
(Emphasis added.)
The MMDA is duty-bound to
comply
with
Sec.
41
of
the
Ecological Solid Waste Management
Act (RA 9003) which prescribes the
minimum
criteria
for
the
establishment of sanitary landfills
and Sec. 42 which provides the
minimum operating requirements
that
each
site
operator
shall
maintain in the operation of a
sanitary landfill. Complementing Sec.
41 are Secs. 36 and 37 of RA
9003, enjoining the MMDA and local
government units, among others, after
the effectivity of the law on February 15,
2001, from using and operating open
dumps for solid waste and disallowing,
five years after such effectivity, the use
of controlled dumps.
The MMDAs duty in the area
of solid waste disposal, as may be
noted, is set forth not only in the
Environment Code (PD 1152) and RA
9003, but in its charter as well. This
duty of putting up a proper waste
disposal
system
cannot
be
characterized as discretionary, for,
as
earlier
stated,
discretion
presupposes the power or right
given by law to public functionaries
to act officially according to their
judgment
or
conscience. A
discretionary duty is one that allows a
person to exercise judgment and choose
to perform or not to perform. Any
suggestion that the MMDA has the option
whether or not to perform its solid waste
disposal-related duties ought to be
dismissed for want of legal basis.
A
perusal
of
other
petitioners respective charters or
like enabling statutes and pertinent
laws would yield this conclusion:
these government agencies are
enjoined, as a matter of statutory
obligation,
to
perform
certain
functions
relating
directly
or
indirectly
to
the
cleanup,
rehabilitation,
protection,
and
preservation of the Manila Bay. They
are precluded from choosing not to
perform these duties. ****
****
All told, the aforementioned
enabling laws and issuances are in
themselves clear, categorical, and
complete as to what are the
obligations and mandate of each
agency/petitioner
under
the
law. We need not belabor the issue
that their tasks include the cleanup
of the Manila Bay.
Secs. 17 and 20 of the Environment
Code Include Cleaning in General

****

Respondents are correct. For

one thing, said Sec. 17 does not in any
way state that the government agencies
concerned ought to confine themselves
to the containment, removal, and
cleaning operations when a specific
pollution incident occurs. On the
contrary, Sec. 17 requires them to
act even in the absence of a specific
pollution incident, as long as water
quality has deteriorated to a
degree
where
its
state
will
adversely affect its best usage.
This section, to stress, commands
concerned government agencies,
when appropriate, to take such
measures as may be necessary to
meet the prescribed water quality
standards. In fine, the underlying
duty to upgrade the quality of water
is not conditional on the occurrence
of any pollution incident.
For another, a perusal of Sec.
20 of the Environment Code, as
couched,
indicates
that
it
is
properly applicable to a specific
situation in which the pollution is
caused by polluters who fail to clean
up the mess they left behind. In
such
instance,
the
concerned
government
agencies
shall
undertake the cleanup work for the
polluters account.**** As earlier
discussed, the complementary Sec. 17 of
the Environment Code comes into play
and the specific duties of the agencies to
clean up come in even if there are no
pollution
incidents
staring
at
them. Petitioners,
thus,
cannot
plausibly invoke and hide behind
Sec. 20 of PD 1152 or Sec. 16 of RA
9275 on the pretext that their
cleanup mandate depends on the
happening of a specific pollution
incident. In this regard, what the
CA said with respect to the impasse
over Secs. 17 and 20 of PD 1152 is
at once valid as it is practical. The
appellate court wrote: PD 1152
aims to introduce a comprehensive
program
of
environmental
protection and management. This is
better served by making Secs. 17 &
20 of general application rather
than limiting them to specific
pollution incidents.
Granting arguendo that
petitioners position thus described vis-vis the implementation of Sec. 20 is
correct,
they
seem
to
have
overlooked
the
fact
that
the
pollution of the Manila Bay is of
such magnitude and scope that it is
well-nigh impossible to draw the
line between a specific and a
general pollution incident. And such
impossibility extends to pinpointing with
reasonable certainty who the polluters
are. We note that Sec. 20 of PD 1152

mentions water pollution incidents

which may be caused by polluters in the
waters of the Manila Bay itself or by
polluters in adjoining lands and in water
bodies or waterways that empty into the
bay. Sec. 16 of RA 9275, on the other
hand, specifically adverts to any person
who causes pollution in or pollutes water
bodies, which may refer to an individual
or an establishment that pollutes the
land mass near the Manila Bay or the
waterways, such that the contaminants
eventually end up in the bay. In this
situation,
the
water
pollution
incidents are so numerous and
involve
nameless
and
faceless
polluters that they can validly be
categorized as beyond the specific
pollution incident level.
Not to be ignored of course is
the reality that the government agencies
concerned are so undermanned that it
would
be
almost
impossible
to
apprehend the numerous polluters of
the Manila Bay. It may perhaps not be
amiss to say that the apprehension, if
any, of the Manila Bay polluters has been
few
and
far
between.
Hence,
practically
nobody
has
been
required to contain, remove, or
clean up a given water pollution
incident. In this kind of setting, it
behooves the Government to step in
and undertake cleanup operations.
Thus, Sec. 16 of RA 9275, previously
Sec. 20 of PD 1152, covers for all
intents and purposes a general
cleanup situation.
The cleanup and/or restoration
of the Manila Bay is only an aspect
and the initial stage of the longterm solution. The preservation of
the water quality of the bay after
the rehabilitation process is as
important as the cleaning phase. It
is imperative then that the wastes
and contaminants found in the
rivers, inland bays, and other bodies
of water be stopped from reaching
the Manila
Bay. Otherwise,
any
cleanup effort would just be a futile,
cosmetic exercise, for, in no time at
all,
the Manila Bay water
quality
would again deteriorate below the
ideal minimum standards set by PD
1152, RA 9275, and other relevant
laws. It thus behooves the Court to put
the heads of the petitioner-departmentagencies and the bureaus and offices
under them on continuing notice about,
and to enjoin them to perform, their
mandates and duties towards cleaning
up the Manila Bay and preserving the
quality of its water to the ideal level.
Under what other judicial discipline
describes
as
continuing
mandamus, the Court may, under
extraordinary circumstances, issue
directives with the end in view of
ensuring that its decision would not

be set to naught by administrative

inaction or indifference. In India, the
doctrine of continuing mandamus was
used to enforce directives of the court to
clean
up
the
length
of
the Ganges River from industrial and
municipal pollution.
*****
In the light of the ongoing
environmental degradation, the Court
wishes to emphasize the extreme
necessity for all concerned executive
departments
and
agencies
to
immediately act and discharge their
respective
official
duties
and
obligations. Indeed, time is of the
essence; hence, there is a need to set
timetables for the performance and
completion of the tasks, some of
them as defined for them by law and
the nature of their respective offices
and mandates.
The
importance
of
the Manila Bay as
a
sea
resource,
playground, and as a historical landmark
cannot be over-emphasized. It is not yet
too late in the day to restore
the Manila Bay to its former splendor and
bring back the plants and sea life that
once thrived in its blue waters. But the
tasks ahead, daunting as they may be,
could only be accomplished if those
mandated, with the help and cooperation
of all civic-minded individuals, would put
their minds to these tasks and take
responsibility. This means that the
State, through petitioners, has to
take the lead in the preservation
and protection of the Manila Bay.
The
era
of
delays,
procrastination,
and ad
hoc measures is over. Petitioners
must transcend their limitations,
real or imaginary, and buckle down
to work before the problem at hand
becomes unmanageable. Thus, we
must
reiterate
that
different
government
agencies
and
instrumentalities cannot shirk from
their mandates; they must perform
their basic functions in cleaning up
and rehabilitating the Manila Bay.
We are disturbed by petitioners hiding
behind two untenable claims: (1) that
there ought to be a specific pollution
incident before they are required to act;
and (2) that the cleanup of the bay is a
discretionary duty.
RA 9003 is a sweeping piece
of legislation enacted to radically
transform
and
improve
waste
management. It implements Sec.
16, Art. II of the 1987 Constitution,
which explicitly provides that the
State shall protect and advance the
right of the people to a balanced
and healthful ecology in accord with
the rhythm and harmony of nature.

So it was that in Oposa v.

Factoran, Jr. the Court stated that
the right to a balanced and
healthful ecology need not even be
written in the Constitution for it is
assumed, like other civil
and
political rights guaranteed in the
Bill of Rights, to exist from the
inception of mankind and it is an
issue of transcendental importance
with
intergenerational
implications. Even
assuming
the
absence of a categorical legal
provision
specifically
prodding
petitioners to clean up the bay, they
and
the
men
and
women
representing them cannot escape
their
obligation
to
future
generations of Filipinos to keep the
waters of the Manila Bay clean and
clear as humanly as possible.
Anything less would be a betrayal of
the trust reposed in them.
How do we execute that judgment in the Kalikasan
court?
Theoretically, SC said that the execution of the
judgment requires a periodic report from the agencies
concerned on the extent of progress the government
agencies concerned had achieved until the objective of
the writ has been achieved. If the SC is understaffed
to monitor the progress, it can appoint
commissioners in charge of accepting periodic
reports and in submitting the progress reports to
the SC in order to satisfy this judgment
requirement. Thus, dormancy and prescription of
judgment under Rule 39 and NCC shall not apply in
Writ of Kalikasan.
A continuing mandamus is another special civil
action, but this time it is cognizable by the RTC, CA
and the SC. Just like in Rule 65 or the Writ of Kalikasan as
a special civil action, the respondent is required to file a
verified return, and if no return is filed by respondent,
court continues with the process of analyzing the merit of
the petition for continuing mandamus.
A provisional remedy that could be issued by the court
handling the petition for continuing mandamus is the
issuance of a Temporary Environmental Protection Order
(TEPO) or a cease and desist order, just like in the writ of
Kalikasan. There could also be an award of damages.
You will also notice that unlike in Kalikasan, there is no
provision concerning appeals in continuing mandamus.. In
the writ of Kalikasan as a special civil action, appeal under
Rule 45 is a remedy, raising only questions of law and
questions of fact. . It would seem that the appeals
provided in ordinary civil procedure will govern. If the trial
court is the RTC, the appeal could be by notice of appeal
provided in the Rules, or it could be an appeal directed to
the SC. In ordinary civil cases, we allow an appeal from the
RTC to the SC under Rule 45, but the appeal should only
contain questions of law.
What is the precautionary principle in Kalikasan
Cases?
Precautionary principle states that when human
activities may lead to threats of serious and

irreversible damage to the environment that is

scientifically plausible but uncertain, actions shall
be taken to avoid or diminish that threat.
What is Strategic Lawsuit Against Public
Performance (SLAPP) ?
It could be in the form of a civil or criminal action.
Plaintiffs intent from SLAPP is to discourage
enforcement officers from enforcing or attempting
to enforce environmental laws. This is filed usually
against DENR or MMDA by a private individual.
Strategic lawsuit against public
participation (SLAPP)refers to an
action whether civil, criminal or
administrative, brought against any
person, institution or any
government agency or local
government unit or its officials and
employees, with the intent to
harass, vex, exert undue pressure
or stifle any legal recourse that such
person, institution or government
agency has taken or may take in the
enforcement of environmental laws,
protection of the environment or
assertion of environmental rights.
In such case, the government officer can file a motion to
dismiss such case. The public
officer/defendant/accused need only to present
substantial evidence (the same standard in
administrative cases) to prove that the case filed
was a SLAPP. The plaintiff must present preponderance
of evidence/proof beyond reasonable doubt to sustain his
challenge.
In criminal procedure in SLAPP, there is a substantial
change in the manner by which a criminal case is
governed when compared to a criminal action which
follows criminal procedure.
In ordinary criminal procedure, if the court grants bail, one
of the conditions in the bail is that if the accused does not
appear in court for trial, then the court is authorized to
conduct a trial in absentia. But in criminal procedure, if the
accused is granted bail, and then during the arraignment
he does not appear, the criminal court will be forced to
suspend proceedings until the accused is rearrested. What
the court will do is to postpone the arraignment, issue
another arrest warrant and probably order the cancellation
of the bail bond. But, the arraignment will not be pushed
through. If there is no arraignment, there can be no trial in
the ordinary criminal case. There must be an arraignment
first before the court can conduct a trial in absentia.
This is not followed in the Kalikasan criminal cases. In the
Kalikasan criminal cases, the crimes are usually bailable. If
the accused is granted bail, the condition of the bail bond
will contain similar provisions to that found in bail under
ordinary criminal proceedings. There is modification in
arraignment. If accused does not appear in the scheduled
arraignment, the court is authorized enter a plea of not
guilty, so that if there is a plea of not guilty, the
arraignment is completed, a trial can then be scheduled. If
the accused still failed to appear on trial, there can be a
trial in absentia.
There is no more need for the accused to be present
personally during the arraignment in the Kalikasan criminal
cases. If he does not appear, then it is the court who will

enter a plea of not guilty for him so the court can continue
with the trial in absentia of the accused.
Other Terms(Rules of Procedure on
Environmental Cases):
By-product or derivatives means any
part taken or substance extracted from
wildlife, in raw or in processed form
including stuffed animals and herbarium
specimens.
Consent decree refers to a judiciallyapproved settlement between concerned
parties based on public interest and
public policy to protect and preserve the
environment.
Mineral refers to all naturally occurring
inorganic substance in solid, gas, liquid,
or any intermediate state excluding
energy materials such as coal,
petroleum, natural gas, radioactive
materials and geothermal energy.
Wildlife means wild forms and varieties
of flora and fauna, in all developmental
stages including those which are in
captivity or are being bred or
propagated.
Some Important provisions (Rules of
Procedure on Environmental Cases):
Rule 2 SEC. 13. Service of summons,
orders and other court processes.The
summons, orders and other court
processes may be served by the sheriff,
his deputy or other proper court officer
or for justifiable reasons, by the counsel
or representative of the plaintiff or any
suitable person authorized or deputized
by the court issuing the summons.
Any private person who is
authorized or deputized by the court
to serve summons, orders and other
court processes shall for that
purpose be considered an officer of
the court.
The summons shall be served on the
defendant, together with a copy of an
order informing all parties that they have
fifteen (15) days from the filing of an
answer, within which to avail of
interrogatories to parties under Rule 25
of the Rules of Court and request for
admission by adverse party under Rule
26, or at their discretion, make use of
depositions under Rule 23 or other
measures under Rules 27 and 28.
Should personal and substituted service
fail, summons by publication shall be
allowed. In the case of juridical entities,
summons by publication shall be done
by indicating the names of the officers or
their duly authorized representatives.

Rule 3 SEC. 3. Referral to mediation.At

the start of the pre-trial conference, the
court shall inquire from the parties if
they have settled the dispute; otherwise,
the court shall immediately refer the
parties or their counsel, if authorized by
their clients, to the Philippine Mediation
Center (PMC) unit for purposes of
mediation. If not available, the court
shall refer the case to the clerk of court
or legal researcher for mediation.
Mediation must be conducted within
a non-extendible period of thirty
(30) days from receipt of notice of
referral to mediation. The mediation
report must be submitted within ten
(10) days from the expiration of the
30-day period.
Rule 3 SEC. 5. Pre-trial conference;
consent decree.The judge shall put
the parties and their counsels under
oath, and they shall remain under
oath in all pre-trial conferences.
The judge shall exert best efforts to
persuade the parties to arrive at a
settlement of the dispute. The judge
may issue a consent decree
approving the agreement between
the parties in accordance with law,
morals, public order and public
policy to protect the right of the
people to a balanced and healthful
ecology.
Evidence not presented during the
pre-trial, except newly discovered
evidence, shall be deemed waived.
Rule 4 SEC. 2. Affidavits in lieu of direct
examination.In lieu of direct
examination, affidavits marked during
the pre-trial shall be presented as
direct examination of affiants
subject to cross-examination by the
adverse party.
Rule 4 SEC. 3. One-day examination of
witness rule.The court shall strictly
adhere to the rule that a witness has
to be fully examined in one (1) day,
subject to the courts discretion of
extending the examination for
justifiable reason. After the
presentation of the last witness,
only oral offer of evidence shall be
allowed, and the opposing party
shall immediately interpose his
objections. The judge shall forthwith
rule on the offer of evidence in open
court.
Rule 4 SEC. 4. Submission of case for
decision; filing of memoranda. After
the last party has rested its case, the
court shall issue an order submitting the
case for decision.

The court may require the parties to

submit their respective memoranda,
if possible in electronic form, within a
non-extendible period of thirty (30) days
from the date the case is submitted for
decision.
The court shall have a period of sixty
(60) days to decide the case from the
date the case is submitted for decision.
Rule 4 SEC. 5. Period to try and decide.
The court shall have a period of one
(1) year from the filing of the
complaint to try and decide the
case. Before the expiration of the
one-year period, the court may
petition the Supreme Court for the
extension of the period for
justifiable cause.
The court shall prioritize the adjudication
of environmental cases.
Rule 5 SECTION 1. Reliefs in a citizen
suit.If warranted, the court may
grant to the plaintiff proper reliefs
which shall include the protection,
preservation or rehabilitation of the
environment and the payment of
attorneys fees, costs of suit and
other litigation expenses.
It may also require the violator to
submit a program of rehabilitation
or restoration of the environment,
the costs of which shall be borne by
the violator, or to contribute to a
special trust fund for that purpose
subject to the control of the court.
Rule 5 SEC. 2. Judgment not stayed by
appeal. Any judgment directing the
performance of acts for the
protection, preservation or
rehabilitation of the environment
shall be executory pending appeal
unless restrained by the appellate
court.
Rule 7 SEC. 6. How the writ is served.
The writ shall be served upon the
respondent by a court officer or any
person deputized by the court, who
shall retain a copy on which to make a
return of service.
In case the writ cannot be served
personally, the rule on substituted
service shall apply.
Rule 7 SEC. 7. Penalty for refusing to
issue or serve the writ.A clerk of
court who unduly delays or refuses
to issue the writ after its allowance
or a court officer or deputized
person who unduly delays or refuses
to serve the same shall be punished

by the court for contempt without

prejudice to other civil, criminal or
administrative actions.
Rule 10 SECTION 1. Institution of
criminal and civil actions.When a
criminal action is instituted, the civil
action for the recovery of civil liability
arising from the offense charged, shall
be deemed instituted with the criminal
action unless the complainant waives the
civil action, reserves the right to institute
it separately or institutes the civil action
prior to the criminal action.
Unless the civil action has been
instituted prior to the criminal action, the
reservation of the right to institute
separately the civil action shall be made
during arraignment.
In case civil liability is imposed or
damages are awarded, the filing and
other legal fees shall be imposed on said
award in accordance with Rule 141 of the
Rules of Court, and the fees shall
constitute a first lien on the judgment
award. The damages awarded in
cases where there is no private
offended party, less the filing fees,
shall accrue to the funds of the
agency charged with the
implementation of the
environmental law violated. The
award shall be used for the
restoration and rehabilitation of the
environment adversely affected.
Rule 14 SECTION 1. Bail, where filed.
Bail in the amount fixed may be filed
with the court where the case is pending,
or in the absence or unavailability of the
judge thereof, with any regional trial
judge, metropolitan trial judge, municipal
trial judge or municipal circuit trial judge
in the province, city or municipality. If
the accused is arrested in a province,
city or municipality other than where the
case is pending, bail may also be filed
with any Regional Trial Court of said
place, or if no judge thereof is available,
with any metropolitan trial judge,
municipal trial judge or municipal circuit
trial judge therein. If the court grants
bail, the court may issue a holddeparture order in appropriate
cases.
Rule 16 SEC. 4. Manner of questioning.
All questions or statements must
be directed to the court.
Rule 16 SEC. 5. Agreements or
admissions.All agreements or
admissions made or entered during
the pre-trial conference shall be
reduced in writing and signed by
the accused and counsel; otherwise,
they cannot be used against the
accused. The agreements covering the
matters referred to in Section 1, Rule

118 of the Rules of Court shall be

approved by the court.
Rule 20 PRECAUTIONARY PRINCIPLE
SECTION 1. Applicability.When there
is a lack of full scientific certainty in
establishing a causal link between
human activity and environmental
effect, the court shall apply the
precautionary principle in resolving
the case before it.
The constitutional right of the
people to a balanced and healthful
ecology shall be given the benefit of
the doubt.
SEC. 2. Standards for application.In
applying the precautionary principle, the
following factors, among others, may be
considered:
(1) threats to human life or health;
(2) inequity to present or future
generations; or
(3) prejudice to the environment
without legal consideration of the
environmental rights of those
affected.

RULE 66 QUO WARRANTO

~One of the cases under the concurrent original
jurisdiction of the SC, CA and RTC under BP 129 and also
the COMELEC under the Omnibus Election Code. MTC has
limited quo warranto jurisdiction as to proceedings at the
barangay level.
Q: What is quo warranto?
A: A proceeding or writ issued by the court to determine
the right to use an office, position or franchise and to oust
the person holding or exercising such office, position or
franchise if his right is unfounded or if a person performed
acts considered as grounds for forfeiture of said exercise of
position, office or franchise.
Note: It is commenced by a verified petition brought in
the name of the Republic of the Philippines or in the name
of the person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another. (Sec. 1)
Q: What are the classifications of quo warranto
proceedings?
A:
1. Mandatory brought by the Solicitor General or Public
prosecutor when:
a. directed by the President;
b. upon complaint or when he has reason to
believe that the cases for quo warranto can be
established by proof (Sec. 2)
c. at the request and upon the relation if another
person (ex relatione), but leave of court must first
be obtained. (Sec. 3)

2. Discretionary brought by the Solicitor General or a

public prosecutor at the request and upon the relation of
another person, provided there must be:
a. leave of court
b. at the request and upon the relation of another
person
c. indemnity bond (Sec. 3)
Who commences the action?
A:
1. The solicitor general or public prosecutor, when directed
by the President of the Philippines, or when upon
complaint or otherwise he has good reason to believe that
any case specified in the proceeding section can be
established by proof. (mandatory quo warranto)
2. The Solicitor General or a public prosecutor may, with
the permission of court, bring an action at the request and
upon the relation of another person. (discretionary quo
warranto)
3. A person claiming to be entitled to a public office or
position or unlawfully held or exercised by another may
also bring action, in his own name. (Relator)
Q: Against whom a quo warranto may be filed?
A: The action must be filed against:
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise;
2. A public officer who does or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office; and
3. An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to act
(Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now
fall under the jurisdiction of the RTC (Sec. 5.2, Securities
Regulations Code).
Usually, the petitioner has the right of choice. But under
Rule 65, although nothing is mentioned in Rule 66 about
hierarchy of courts in quo warranto proceedings, we follow
hierarchy of courts. As much as possible, we do not file a
petition for quo warranto in the SC. It should be filed in the
RTC which has territorial jurisdiction over the case where
the public office in question is placed.
If we compare quo warranto to mandamus, if you go back
to Rule 65 Section 3, the second part of that section has a
phrase or clause which seems to overlap with the concept
of quo warranto. Quo warranto refers to the usurpation,
holding an office without title. In mandamus, the second
part of the section on mandamus speaks about a
respondent who unlawfully excludes another from the use
or enjoyment of a right or office to which he is entitled. So
there seems to be an overlap between the second part of
mandamus and quo warranto.
Rule 65 SEC. 3. Petition for mandamus.
When any tribunal, corporation, board,
officer or person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust, or station, or
unlawfully excludes another from
the use and enjoyment of a right or
office to which such other is
entitled, and there is no other plain,
speedy and adequate remedy in the
ordinary course of law, the person

aggrieved thereby may file a verified

petition in the proper court, alleging the
facts with certainty and praying that
judgment be rendered commanding the
respondent, immediately or at some
other time to be specified by the court,
to do the act required to be done to
protect the rights of the petitioner, and
to pay the damages sustained by the
petitioner by reason of the wrongful acts
of the respondent.
The petition shall also contain a sworn
certification of non-forum shopping as
provided in the third paragraph of
section 3, Rule 46.
Because of this seemingly overlap between mandamus
and quo warranto, the SC has also resolved that there is
nothing wrong when a petitioner files a petition for
mandamus or in the alternative a petition for quo
warranto. The petitioner is not very certain whether the
right proceeding is mandamus or quo warranto, because
these actions would involve really the intrusion or
usurpation of a public office or title.
But there is a great difference procedurally between
mandamus and quo warranto although these petitions
could be used alternatively. This is because in a quo
warranto proceeding, the petitioner could be the Solicitor
General, although he is not interested in the public office
in question. Upon the instruction of the President, the
SolGen is authorized to file a petition for quo warranto. Or,
if the instructions does not come from the President, the
request comes from a relator. A relator is a term
associated with quo warranto, he is the petitioner, a
person who believes he is entitled to the public office held
by another, and he is asking the SolGen to file a petition
for quo warranto on his behalf. The SolGen, upon the
request of a relator, shall commence a petition for quo
warranto. But the person interested in the office could
himself file a petition for quo warranto. That is what
usually happens. The person who alleges he is entitled to a
position can file a petition for quo warranto in a competent
court.
Quo warranto is a special civil action because of numerous
changes in the procedure which modify the rules we apply
to ordinary civil actions.
Procedural changes:
1. Rule on venue
Usually in ordinary civil cases, in the absence of an
express agreement, venue is governed by Rule 4. We do
not follow this in quo warranto. It is specifically provided
that for quo warranto, the venue is where the officer
sought to be ejected is residing. We do not take into
account the residence of the petitioner.
Q: A group of businessmen formed an
association in Cebu City calling itself Cars
Co. to distribute/sell cars in said city. It did
not incorporate itself under the law nor did
it have any government permit or license to
conduct its business as such. The Solicitor
General filed before the RTC in Manila a
verified petition for quo warranto
questioning and seeking to stop the
operations of Cars Co. The latter filed a
motion to dismiss the petition on the
ground of improper venue claiming that its
main office and operations are in Cebu City

and not in Manila. Is the contention of Cars

Co. correct? Why?
A: No. As expressly provided in the Rules, when
the Solicitor General commences the action for
quo warranto, it may be brought in a Regional
Trial Court in the City of Manila, as in the case, in
the CA or in the SC (Sec. 7, Rule 66). (2001 Bar
Question)
2. Period for submission of pleadings
In ordinary civil actions, the period to file pleadings is fixed
in the Rules, and the court has discretion to grant
extension thereof. But if we read Rule 66, the quo
warranto court can reduce the period at its
discretion. The quo warranto court can issue a summons
instructing the recipient thereof to file a responsive
pleading with 5 days. That discretion of a quo warranto
court is not enjoyed by other courts under ordinary civil
procedure, as courts under ordinary procedure can grant
extensions only.
3. The most significant change in quo warranto is that we
do not apply the rule against splitting a cause of
action. It is expressly allowed in quo warranto under
Sections 9, 10 and 11 of Rule 66.
SEC. 9. Judgment where usurpation
found.When the respondent is found
guilty of usurping, intruding into, or
unlawfully holding or exercising a public
office, position or franchise, judgment
shall be rendered that such
respondent be ousted and
altogether excluded therefrom, and
that the petitioner or relator, as the
case may be, recover his costs.
Such further judgment may be
rendered determining the
respective rights in and to the
public office, position or franchise of
all the parties to the action as
justice requires.
SEC. 10. Rights of persons adjudged
entitled to public office; delivery of
books and papers; damages.If
judgment be rendered in favor of the
person averred in the complaint to be
entitled to the public office he may,
after taking the oath of office and
executing any official bond required
by law, take upon himself the
execution of the office, and may
immediately thereafter demand of
the respondent all the books and
papers in the respondents custody
or control appertaining to the office
to which the judgment relates. If the
respondent refuses or neglects to
deliver any book or paper pursuant to
such demand, he may be punished for
contempt as having disobeyed a
lawful order of the court. The person
adjudged entitled to the office may also
bring action against the respondent
to recover the damages sustained
by such person by reason of the
usurpation.
SEC. 11. Limitations.Nothing
contained in this Rule shall be construed
to authorize an action against a

public officer or employee for his

ouster from office unless the same
be commenced within one (1) year
after the cause of such ouster, or
the right of the petitioner to hold
such office or position, arose; nor to
authorize an action for damages in
accordance with the provisions of
the next preceding section unless
the same be commenced within one
(1) year after the entry of the
judgment establishing the
petitioners right to the office in
question.
You will note that in these 3 sections, there is a rule
derived from these sections, which says that if the quo
warranto court decides in favor of the petitioner,
the quo warranto court will oust the respondent and
direct that the office and the records of that office
be turned over to the prevailing party. In the
succeeding sections, it is also provided that the prevailing
party has a right, within 1 year after taking over, can
claim damages incurred as a result of usurpation by
ousted respondent public officer. Although a favorable
decision in a quo warranto proceeding could lead the court
to award damages against the respondent public officer,
the quo warranto need not award damages in the quo
warranto petition itself. There could be a separate
complaint for recovery of damages arising from the
usurpation of a public office. This is splitting a cause of
action. In other words, the prevailing party can recover the
office, and after he has assumed office, within one year
from entry of judgment, he can file a separate complaint
for the recovery of damages suffered as a result of the
intrusion or usurpation made by the defendant.
Claim for damages arising from principal cause of action is
not barred if split from quo warranto action. But
prescriptive period is 1 year from entry of the main action.
Whereas in the case of mandamus, a special civil action,
lets say the petitioner files a petition for mandamus
without a claim for damages. He later on wins the case.
When court directs the defendant to turn over the office to
the prevailing party, the prevailing party will be barred
from claiming damages from the plaintiff. Mandamus does
not authorize splitting a cause of action. A claim of
damages could be awarded if claimed in the same petition
for mandamus. In quo warranto, there is a different
procedure that we follow when it comes to recovery of
damages. There could be a separate complaint for
recovery of damages arising from the intrusion or
usurpation of public office. But the prescriptive period is
one year from entry of judgment of the quo warranto
proceeding.

Distinguish mandamus from quo warranto.

A:
Mandamus
Quo Warranto
Available when one is
Available against the
unlawfully excluded from
holder of an office, who is
the use or enjoyment of
the person claiming the
an office against a person
office as against
who is responsible for
petitioner, not necessarily
excluding the petitioner
the one who excludes the
petitioner
No splitting of a cause of
Recovery of damages is
action.
allowed within 1 year from
the entry of judgment of

the petition for quo

warranto
Distinguish quo warranto
appointive office.
A:
Elective Office
Issue: eligibility of the
respondent
Occupant declared
ineligible/disloyal will be
unseated but petitioner
will not be declared the
rightful occupant of the
office.

in elective office from an

Appointive Office
Issue: validity of the
appointment
Court will oust the person
illegally appointed and will
order the seating of the
person who was legally
appointed and entitled to
the office.

Distinguish quo warranto under Rule 66 from quo

warranto under Omnibus Election Code.
A:
Quo Warranto Under
Quo Warranto In
Rule 66
Electoral Proceedings
Prerogative writ by which
To contest the right of an
the government can call
elected public officer to
upon any person to show
hold public office.
by what title he holds a
public office or exercises a
public franchise.
Grounds: 1. usurpation
Grounds:
2. forfeiture
ineligibility or
3. illegal association
disqualification to hold the
office
Presupposes that the
Petition must be filed
respondent is already
within 10 days from the
actually holding office and
proclamation of the
action must be
candidate.
commenced within 1 year
from cause of ouster or
from the time the right of
petitioner to hold office
arose.
The petitioner must be the
May be filed by any voter
government or the person
even if he is not entitled to
entitled to the office and
the office.
who would assume the
same if his action
succeeds.
Person adjudged entitled
Actual or compensatory
to the office may bring a
damages are recoverable
separate action against
in quo warranto
the respondent to recover
proceedings under the
damages.
Omnibus Election Code.
Note: If the dispute is as to the counting of votes or on
matters connected with the conduct of the election, quo
warranto is not the proper remedy but an election protest
(Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929)
Is the claim of damages in quo warranto cases
considered a separate special civil action?
No, it is an ordinary action for a claim of damages.
Supposing that the petitioner filed a case for quo
warranto against respondent. His petition for quo
warranto was granted. The respondent was ousted
from the office. When the prevailing party filed a
case for damages, 1 year after the entry of the
judgment of the quo warranto court, the respondent
interposed a defense that he cannot be held liable
for damages as the judgment of the quo warranto
court was an invalid judgment. Is his defense
succeed in this ordinary complaint for damages?

No. It cannot be set up. It is a collateral attack on a

judgment, which we do not allow. Collateral attack on
judgment rendered by the court is not allowed when the
judgment appears on its face to be valid under Rule 39.
Practically, in that separate complaint for the recovery of
damages, no meritorious defense could be set up by the
respondent because the award of damages necessarily
arises from the fact that there is already a final and
executory judgment rendered in the principal case of quo
warranto.
RULE 67 EXPROPRIATION
Q: What is expropriation?
A: The procedure for enforcing the right of eminent
domain.
Q: What are the requisites of a valid expropriation?
A:
1. Due process of law
2. Payment of just compensation
3. Taking must be for public use
Q: What is the power of eminent domain?
A: It is the right of the State to acquire private property for
public use upon the payment of just compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell or,
if the latter agrees, agreement as to the price
cannot be reached.
Jurisdiction exclusively cognizable by RTC. The test
in BP 129 as to assessed value of the property is not
applied here.
The nature of the action as a real action has nothing
to do with the jurisdiction of the court, but it has
something to do only with respect to the venue. The
nature of the property is not determinative of
jurisdiction in expropriation proceedings because
expropriation is one not capable of pecuniary
estimation.
Why is this so when state is required to pay just
compensation?
This is because the issue to be resolved first by the
court is the right of the plaintiff to expropriate. Only
in the second stage is the fixing of just compensation
resolved. A court cannot simply decide the issue of
just compensation first, as it should assess first the
right to expropriate, which is incapable of pecuniary
estimation. SC held that since the first issue to be
resolved is one incapable of pecuniary estimation, under
BP 129, then it should be the RTC which should have
jurisdiction.
In expropriation proceedings, if there is a complaint
filed yesterday, and the plaintiff deposits an amount
equivalent to assessed value today, even if the
defending party has not been notified yet, the
plaintiff can proceed to possess the property
subject of expropriation. Let us say that the DPWH is
interested in getting a property of land for the purpose of
expanding a national highway. What it will do is to simply
file a complaint in the RTC where the land is located. The
deposit is made the next day. Immediately, the DPWH will
take over the said property, and the owner thereof can do
nothing about it. Once deposit is made as required by
the Rules or as required by substantive law, the
court issues a writ of possession as its ministerial
duty. In ordinary civil actions, issuance of a writ of

possession can be done only after the court has rendered a

decision and such decision has been entered.
In case of reversion, when will the owner recover
the expropriated property?
After a judgment in favor of owner has become final and
executory. If there is an appeal, possession is not returned,
except when execution pending appeal is granted.
Otherwise, a writ of possession shall be issued upon
finality.

Expropriation by LGUs, under the LGC, it must be

alleged in the complaint that there is an ordinance
authorizing the filing expropriation complaint and a
further allegation that LGU offered to buy the
property from the owner, but the owner refused
(there was an attempt by the LGU to buy the
property).

Suppose there is a lien over the property? What if

there were informal settlers in the property?
They will all be driven out as a result of the writ of
possession issued even before the expropriation court has
determined whether or not the state has a right to
expropriate.

What are the two (2) stages in expropriation

proceedings?
A:
1. Determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of the
exercise in the context of the facts involved.
2. Determination of just compensation.

There are now new laws providing for fixing the amount of
deposit to be made, not the one that is always provided for
under Rule 67. The new laws say that deposit should be
100% of the assessed value. Rule 67 shall govern in cases
where the special laws are not applicable.

FIRST STAGE
The first stage of the expropriation proceeding is for
purposes of determining the plaintiffs right to expropriate.
The first decision in resolving this issue is called an order
of condemnation or expropriation, which is a final
decision on the merits. This is appealable.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO

POSSESSION OF THE REAL PROPERTY
Q: What is the new system of immediate payment of
initial compensation?
A: RA 8974 provides a modification of sec 2, Rule 67
where the Government is required to make immediate and
direct payment to the property owner upon the filing of the
complaint to be entitled to a writ of possession. As a
relevant standard for initial compensation, the market
value for the property as stated in the tax
declaration or the current relevant zonal valuation
of the Bureau of internal Revenue (BIR), whichever
is higher and the value of the improvements and/or
structures using the replacement cost method.
Note: RA 8974 applies in instances when the national
government expropriates property for national
government infrastructure projects. Thus, if
expropriation is engaged by the national
government for purposes other than national
infrastructure projects, the assessed value standard
and the deposit mode prescribed in Rule 67
continues to apply.
The intent of RA 8974 to supersede the system of deposit
under Rule 67 with the scheme of immediate payment in
cases involving national government infrastructure
projects is indeed very clear (MCWD v. J. King and Sons,
GR 175983, April 16, 2009)
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL
JUST COMPENSATION
Q: What is the new system of immediate payment of
initial just compensation?
A: For the acquisition of right-of-way, site or location for
any national government infrastructure project through
expropriation, upon the filing of the filing of the complaint,
and after due notice to the defendant, the implementing
agency shall immediately pay the owner of the property
the amount equivalent to the sum of (1) 100 percent of the
value of the property based on the current relevant zonal
valuation of the BIR; and (2) the value of the
improvements and/or structures as determined under Sec.
7 of RA 8974 (Sec. 4, RA 8974).

Certain pleadings are not allowed: Counterclaim, crossclaim and 3rd party complaint. If defendant believes the
filing of expropriation by the Republic is arbitrary, he
cannot sue the Republic. He cannot file a counterclaim
against the Republic.
Is there a way the defendant protect himself in case
the court decides in his favor?
Under Rule 67, even if without a counterclaim, if the court
resolves the expropriation is not meritorious, the court will
award damages in favor of defendant. If there is a dispute
among several defendants as to who is entitled to just
compensation, even if no cross-claim is filed, the court
itself will resolve this issue, even if there are no pleadings
relating thereto. The expropriation court has a very wide
discretion in the matter of payment, or even distribution,
of just compensation that will be fixed during the 2nd
stage where the court will appoint commissioners, who will
then tell the court the amount of just compensation to be
paid to the various defendants.

POSSESSORS WITH JUST TITLE

SC also ruled that if the Republic has a Torrens title over
certain properties, but the said properties were in the
possession of private individuals claiming possession
under a just title, the Republic cannot simply cause their
ejection, but Republic can simply file an expropriation
proceeding against them. There is nothing wrong if the
Republic will file a complaint for expropriation to oust the
possessors from the property, although these properties
are already in the title of the government.
DEFAULT
Supposing the defendant does not answer within the
period of default, the court, upon motion of the plaintiff,
may declare the defendant in default. But in the default
order issued in expropriation proceedings, the defendant is
in default only during the first stage of the proceedings,
and is lifted automatically in the 2nd stage. The defendant,
if declared in default, will not be able to participate during
the first stage of the proceedings where the right of the
plaintiff to expropriate will be determined by the court. The
first stage ends, if favorable to plaintiff, with the court
issuing an order for condemnation or order of
expropriation. Once that order is entered, or even if there

is an appeal from that order, the expropriation court will

now go to the second stage, the fixing of just
compensation. During the 2nd stage, the defendant is
allowed again to participate in the proceedings the fixing
of just compensation. Unlike in ordinary civil actions, if the
defendant is in default, the defendant will not be able to
participate during the entire proceedings, unless the order
of default is lifted or the order of default is set aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion
of the court. Court MUST appoint commissioners to
determine such compensation. If the court has not
followed this procedure, there is ground to question the
decision of just compensation by said court.
Commissioners must be appointed in order to help the
court in fixing the just compensation to be paid. This is
another deviation from ordinary procedures. Note in
ordinary procedure, trial by commissioners is
discretionary; unlike in expropriation, the appointment of
commissioners in the second stage is mandatory. The
judgment rendered by the expropriation court will be void
if the court does not follow the mandatory requirement of
appointing of commissioners.
Q: May the court dispense with the assistance of
commissioners in the determination of just
compensation in expropriation proceedings?
A: No. The appointment of commissioners in expropriation
proceedings is indispensable. In such cases, trial with the
aid of commissioners is a substantial right that may not be
done away with capriciously or for no reason at all
(MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be
filed within 10 days from service of the order and shall be
resolved within 30 days after all the commissioners
received the copies of the objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value
of the property at the time of its taking or filing of
complaint whichever comes first. It is the fair and full
equivalent for the loss sustained by the defendant.
Q: What is the formula for the determination of just
compensation?
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
Where:
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits
Note: Sentimental value is not computed.
Q: What is the reckoning point for determining just
compensation?
A:The value of just compensation shall be determined as
of the date of the taking of the property or the filing of the
complaint, whichever came first. (Sec. 4)
GR: When the taking of the property sought to be
expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to
the filing of the complaint for eminent domain, the just
compensation should be determined as of the date of the
filing of the complaint. (City of Iloilo v. Hon. Lolita
Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).

Note: Typically, the time of taking is contemporaneous

with the time the petition is filed. (NAPOCOR v. Co, G.R. No
166973, Feb. 10, 2009)
XPNs:
1. Grave injustice to the property owner
2. The taking did not have color of legal authority
3. The taking of the property was not initially for
expropriation
4. The owner will be given undue increment advantages
because of the expropriation
Based on past jurisprudence, if the state has expropriated
a piece of land and had paid just compensation based on
the courts decisions, but the state did not push through
with the project alleged in the complaint, there is nothing
we can do about it on ground of res judicata. The case can
no longer be reopened. But that was old jurisprudence.
Recently, the decision on Mactan-Cebu International
Airport cases, the last of which was decided in 2010, the
SC held that in the case of the public purpose of the
expropriation being unfulfilled, the former owners
can rightfully file a complaint in the RTC for the
reversion of the property and reconveyance of the
property expropriated, the amount of payment of
which shall be based on the just compensation paid
at the time of expropriation (the purpose being to
return to the government the amount of just
compensation paid to them).
In another case, there was a land owner who donated a
tract of land to the government. The government
introduced improvements with tolerance of the owner, and
the value of the property increased. The donor, seeing that
the improvements increase the value of his property,
changed his mind and sought to recover the donated
property by filing a case for unlawful detainer against the
government.SC held that unlawful detainer is not the
remedy. There was a de facto expropriation that happened
when the government took over the property. What the
owner can do is to file an ordinary action for the recovery
of just compensation.
In other words, if we follow the reasoning of the SC,
expropriation could be de jure expropriation, it could also
be de facto expropriation. If the government actually
occupies a piece of land and introduces improvements
therein, with the tolerance of the owner of the property,
that is effectively an expropriation of the property. And the
only remedy of the land owner is to file an ordinary case
for the recovery of just compensation. There will still be a
need to fix the amount of just compensation.
We follow the same procedure if the subject of
expropriation is personal property. But there are laws fixing
the amount to be deposited if the government wants to
take possession of the personal property right away.
APPEAL
Supposed defendant appealed the first final order,
may the court proceed with the 2nd stage?
Yes. An appeal from the first final order will not prevent the
court from proceeding to the 2nd stage to fix the amount
of just compensation.
If the defendant during appeal asks the court to
withdraw the deposit made, will that mean he is
withdrawing his appeal or shall the appeal
continue?

The appeal shall continue. SC held that defendant is

allowed to withdraw the money since technically it is his as
it is intended to pay partly his just compensation, this will
not mean that the appeal is being withdrawn.
Thus, immediately, you can see why expropriation is a
special civil action. It consists of 2 stages. And for each
stage, there is a final order of judgment. Thus, for each
final order of judgment, an appeal can be had, meaning
there can be 2 appeals in an expropriation case. Thus, it is
possible that there can be multiplicity of appeals in
expropriation cases, which is not allowed in ordinary civil
actions.
Because of the possibility of multiple of appeals in
expropriation proceedings, the requirements of appeal are
changed. In ordinary civil proceedings, the period to
appeal is 15 days, and what needs to be filed is just a
notice to appeal. In expropriation proceedings, since there
could be multiple appeals, the period to appeal is
extended to 30 days, and together with notice of appeal,
appellant is also required to file a record on appeal. Failure
to file record to appeal means the appeal is not perfected.
Q: City of Iloilo (petitioner) represented by Mayor
Treas filed a complaint for eminent domain against
Javellana seeking to expropriate two parcels of
land. Mayor Treas filed a motion for issuance of
writ of possession alleging that it had deposited
10% of the amount of compensation of which the
court issued. A writ of possession was subsequently
issued, and petitioner was able to take physical
possession of the properties. After which, the
expropriation proceedings remained dormant. 16
years later, Javellana filed an ex parte
motion/manifestation, where he alleged that when
he sought to withdraw the money, he discovered
that no deposit was made. Thus, Javellana filed a
complaint for recovery of possession, fixing and
recovery of rental and damages. The City of Iloilo
argues that Javellana could no longer bring an
action for recovery since the subject property was
already taken for public use. The trial court in its
orders and amended orders maintained that the
assailed orders issued by it were interlocutory in
character and as such are always subject to
modification and revision by the court anytime. Is
the order of expropriation final?
A: Expropriation proceedings have two stages. The first
phase ends with an order of dismissal, or a determination
that the property is to be acquired for a public purpose.
The second phase consists of the determination of just
compensation. Both orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving
the question of whether or not the plaintiff has properly
and legally exercised its power of eminent domain. Once
the first order becomes final and no appeal thereto is
taken, the authority to expropriate and its public use can
no longer be questioned. Thus, it has become final, and
the petitioners right to expropriate the property for a
public use is no longer subject to review. (City of Iloilo v.
Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12,
2010).
May Congress enact a law providing that a 5,000
square meter lot, a part of the UST compound in
Sampaloc, Manila, be expropriated for the
construction of a park in honor of former City Mayor
Arsenio Lacson? As compensation to UST, the City of
Manila shall deliver its 5-hectare lot in Sta. Rosa,

Laguna originally intended as a residential

subdivision for the Manila City Hall employees.
Explain.
A: Yes, Congress may enact a law to expropriate property
but it cannot limit just compensation. The determination of
just compensation is a judicial function and Congress may
not supplant or prevent the exercise of judicial discretion
to determine just compensation. Under Sec. 5, Rule 67 of
the Rules of Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 Bar
Question)
RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE
Another multi-stage special civil action it has 3 stages
Q: What is foreclosure of Real Estate Mortgage
(REM)?
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to another, by
proceeding against the property used to secure said
obligation.
Note: It is commenced by a complaint setting forth the
date and due execution of the mortgage; the names and
residences of the mortgagor and the mortgagee; a
description of the mortgaged property; date of the note or
other documentary evidence of the obligation secured by
the mortgage, the amount claimed to be unpaid thereon;
and the names and residences of all persons having or
claiming an interest in the property subordinate in right to
that of the holder of the mortgage (Sec. 1).
JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE
Judicial Foreclosure
Extra-judicial
Foreclosure
Governed by Rule 68
Governed by Act 3135
There is only an equity of
Right of redemption exists
redemption except when
the mortgagee is a bank
Requires court
No court intervention
intervention
necessary
Mortgagee need not be
Mortgagee is given a
given a special power of
special power of attorney
attorney.
in the mortgage contract
to foreclose the
mortgaged property in
case of default
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which case,
he will be deemed to have waived his right to proceed
against the property in a foreclosure proceeding. (Movido
v. RFC, G.R. No. L-11990, May 29, 1959)
Judicial foreclosure of real estate mortgage. Rule 68 deals
only with real estate mortgage. Here, the court is involved.
Note: There is no judicial foreclosure of a chattel
mortgage.
Extra-judicial foreclosure of real mortgage is governed by
special law, the Real Estate Mortgage Law. We deal only
with the notary public or the court sheriff. There is a
circular issued by the SC concerning extra-judicial real
estate mortgage, so we follow that SC circular when it
comes to extra-judicial foreclosure. In the circulars, the
mortgagee will not need to file a complaint, but instead
will be dealing with notary public or sheriff. There will also
be public auction, period of redemption, and consolidation
of title by RoD. The only time when the purchaser in this
foreclosure needs to go to court is when the purchaser
needs to recover possession of the property. He will have

to go to court in order to petition for the issuance of a writ

of possession.
In extra-judicial foreclosure of mortgage, the period of
redemption is similar to Rule 39, 1 year from registration of
the certificate of sale. This period of redemption is one of
the distinctions of judicial under Rule 68 and extra-judicial
foreclosure of mortgage.
Redemption in judicial foreclosure is called equity of
redemption. It is redemption just the same. Period of
redemption is between 90 to 120 days from entry of
judgment. Such short period is actually misleading, as it
can be without a definite end. The counting must be
commenced from ENTRY of judgment or final order.
There are 3 judgments or final orders to be
rendered in judicial foreclosure. For each stage,
there could be an appeal in each final order. The
counting starts upon entry of all three judgments or
final orders. Thus, if one or two judgments were
appealed in the CA up to the SC, then such period is
extended until the finality of the said judgments, which
could take many years. If an appeal is perfected on time,
there can be no entry of judgment. This is the reason why
mortgagees are discouraged from engaging in judicial
foreclosures.
Q: Distinguish equity of redemption from right of
redemption.
A:
Equity of Redemption
Right of Redemption
Right of the defendant
Right of the debtor, his
mortgagor to
successor in interest or
extinguish the
any judicial creditor or
mortgage and retain
judgment creditor of said
ownership of the
debtor or any person
property by paying the
having a lien on the
debt within 90-120
property subsequent to
days after the entry of
the mortgage or deed of
judgment or even after
trust under which the
the foreclosure sale
property is sold to
but prior to
redeem the property
confirmation
within 1 year from the
registration of the
Sheriffs certificate of
foreclosure sale
Governed by Rule 68
Governed by Secs. 29-31,
Rule 39
Note: There is no right of redemption in judicial
foreclosure sale after the confirmation of sale except those
granted by banks or banking institutions in favor of nonjudicial persons as provided by the General Banking Act
(Government Insurance System v. CFI of Iloilo, G.R. No.
45322, July 5, 1989).
In extra-judicial foreclosure, the mortgagor has the right to
redeem the property within one year from the registration
of the deed of sale. However, Sec. 47 of the General
Banking Act provides that in case of extra-judicial
foreclosure, juridical persons shall have the right to
redeem the property until, but not after, the registration of
the certificate of foreclosure sale which in no case shall be
more than 3 months after foreclosure, whichever is earlier.
The pendency of the action stops the running of the right
of redemption. Said right continues after perfection of an
appeal until the decision of the appeal. (Consolidated Bank
and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)

A mortgagee can only foreclose extra-judicially

under the Real Mortgage Law if he is given an SPA
to do so by the mortgagor. Otherwise, he must make
use of judicial foreclosure of mortgage. If mortgagee files a
complaint for judicial foreclosure, the first problem is
jurisdiction.
SC held that foreclosure of REM is always cognizable under
the RTC. It is not capable of pecuniary estimation.
Notwithstanding the nature of foreclosure of a real estate,
the SC used the reasons in expropriation. SC held that a
judicial foreclosure of a real estate mortgage is incapable
of pecuniary estimation since in the first stage, the court
determines the right of plaintiff to foreclose, which is
incapable of pecuniary estimation.
Rule 68 already tells who should be the plaintiff as well as
who to implead defendant. The defendants should be the
debtor and the mortgagor. The debtor is different from
mortgagor. And debtor must also implead as codefendants persons who might have interests or liens
subsequent to the mortgagee. By implication, the owner of
a piece of land can validly mortgage his land more than
once. He can mortgage the land to A, then to B, and then
C.
If the mortgage loans are all defaulted, the defendant, if
he has not given any authority to foreclose the mortgage,
is sure to be impleaded as a defendant in the complaint for
judicial foreclosure of a real estate mortgage. It is the first
mortgagee who judicially forecloses the mortgage and if
he follows the Rules, the first mortgagee should implead
the debtor, the mortgagor and the subsequent
mortgagees.
Does it mean to say that the debtor is an
indispensible party?
Yes. The mortgagor is an indispensable party, whose
property is sought to be foreclosed. Remember that a
mortgage is a collateral contract. There must always be a
principal contract coupled with a contract of real estate
mortgage. Thus, we should always implead the mortgagor,
who is an indispensable party in the recovery of the
indebtedness.
How about the mortgagor, is he an indispensible
party?
Yes. He is also an indispensible party as it is his property
that will be foreclosed. He might lose his property if it is
foreclosed to satisfy the obligation incurred by the debtor.
Supposing the mortgagor files an answer and sets
up the defense that the mortgage insofar as he is
concerned is void due to lack of consideration
thereto, is this a valid argument against the
foreclosure?
It is untenable. In civil law, where there is a collateral
under an accessory contract, the consideration under the
principal contract serves automatically as the
consideration for the accessory contract. The mortgagor
only has himself to blame, setting up his property as
security for the benefit of the debtor without
compensation.
Subsequent lien holders are necessary parties, so they will
lose their equity of redemption incase the plaintiff wins the
case.
The only reason why subsequent mortgagees should be
impleaded under the Rules is to protect the 1st mortgagee,
assuming that he wins the case, from these subsequent
lien holders (subsequent mortgagees) from exercising their
equity of redemption. If the subsequent mortgagees are

not impleaded, and there is a decision in favor of the 1st

mortgagee, the subsequent mortgagees will not lose their
equity of redemption. Meaning, they do not start to count
the 90 to 120 days period from entry of judgment so as to
bar these subsequent lien holders from exercising their
right to equity of redemption. That is the only reason why
Rule 68 says that subsequent lien holders should be
impleaded, because they are necessary parties, so that
they will lose their equity of redemption if ever the 1st
mortgagee will win the case.
In an indispensible party is not impleaded, the court will
order plaintiff to amend his complaint and include said
party. Failure to implead an indispensible party despite
order of the court will result in the dismissal of the case.
STAGES OF JUDICIAL FORECLOSURE
FIRST STAGE
In the first stage, the court determines the liability of the
debtor, and the court will order the debtor to pay his
indebtedness within a 90- to 120-day period from entry of
judgment. The mortgagor is not the one ordered to pay the
secured indebtedness, it is the debtor who must pay.
But inn our given facts, we do not expect the debtor to
pay, because the property anyway does not belong to him.
He will leave the problem to the mortgagor. If there is no
payment, and the judgment is not appealed, it will be
entered. The entry will not cut off the equity of
redemption. The equity of redemption shall exist until after
the entry of the 2nd judgment.
If the debt is paid, the proceedings become academic.
There is no more reason for the mortgagee continue his
complaint if the debt is paid. It is the obligation of the
mortgagee to cancel the mortgage if the obligation is
finally settled. But if the obligation is not paid, the
proceedings will go to the 2nd stage.
SECOND STAGE
The foreclosure court orders the sale of the mortgaged
property at public auction. The court will issue an order
directing the sheriff to sell the property in a public auction
under Rule 39, as well as in the Mortgage Law.
If the property is sold to the highest bidder, do we now cut
off the equity of redemption?
We do not cut off as of yet the equity of redemption even
when the property has been sold at public auction. What
the court will do next after the public auction is conducted
is to resolve the motion for the confirmation of the validity
of the auction sale. This is the second final order of
confirmation. It is appealable. When an appeal is
seasonably filed, the final order of confirmation is not
entered, the equity of redemption will still continue to run.
It will not be interrupted until the 2nd judgment is entered.
If 2nd final order is entered, that will not mark the end of
the proceedings. That will only mark the beginning of the
3rd stage.
THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay
off the indebtedness, the court will be determining if there
is any deficiency and issue another final order authorizing
the recovery of the deficiency.
The recovery of the deficiency will be governed by Rule 39,
because the property/collateral has already been sold at
public auction. We are going to apply, for purposes of
recovery of deficiency, execution of judgment. The

recovery of deficiency is the third final order. If there is no

satisfaction of the deficiency through voluntary payment,
the foreclosing mortgagee will have to avail of Rule 39. He
can move for the issuance of a writ of execution.
But in that 3rd stage, do not forget that the only one who
is liable now is the debtor. The mortgagor will not be liable
for any deficiency, because the mortgagor is not the
debtor. The mortgagor is liable only to the extent of the
value of his collateral. He cannot be held personally liable
for the value of the deficiency, unless he makes himself
solidarily liable together with the debtor. So in the
recovery of deficiency, only the principal debtor is held
liable, but not the mortgagor of the property.
Since we are going to apply Rule 39, there will be a levy on
execution of properties of the debtor. If these are sold at
public auction, there will be another round of legal
redemption, 1 year from registration of the certificate of
sale in the RoD, but not because of the foreclosure, but
because of the issuance of the foreclosure court of a writ
of execution.
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding the
defendant liable for any unpaid balance due to the
mortgagee if the proceeds from the foreclosure sale do not
satisfy the entire debt.
Q: What are the instances when the court cannot
render deficiency judgment?
A: where the debtor-mortgagor is a non-resident and who
at the time of the filing of the action for foreclosure and
during the pendency of the proceedings was outside the
Philippines, then it is not procedurally feasible. It is by
nature in personam and jurisdiction over the person is
mandatory.
In one case decided by the SC, the debtor secured
his indebtedness with a real estate mortgage to his
own property. The lender/mortgagee obligated the
debtor to issue post-dated checks for the payment
of the obligation. The mortgagees filed criminal
cases since the checks he got from the mortgagor
were dishonored upon presentation. During the
pendency of the criminal cases, since the principal
obligation remained unpaid, the mortgagee availed
of the special civil action for judicial foreclosure of
mortgage of the mortgagors property. The
mortgagor, previously summoned in the criminal
cases, sought for the dismissal of the foreclosure
case, claiming that the civil aspect of BP 22 should
not be separated from the criminal aspect as it is
automatically carried with the criminal case, and
that mortgagee has split his causes of action in
filing the special civil action for judicial foreclosure.
Is the mortgagor correct?
In an earlier case, the SC upheld the mortgagor. The
special civil action for judicial foreclosure was dismissed.
There was really splitting of causes of action. The criminal
cases stemmed from the issuance of the debtor of the
checks, which were dishonored. In a mortgage
relationship, there are effectively 2 contracts entered into
between the mortgagor and mortgagee. The principal
contract, usually a loan, and an accessory contract of
mortgage. If the mortgagee files a separate complaint for
the recovery of the loan without foreclosing the mortgage,
he can do so. The filing of a separate complaint for the
purpose of recovering the loan will be considered as a
waiver of the collateral arrangement. The mortgagee, if he
does this, is deemed to have abandoned the mortgage. He

is deemed to have converted his secured loan to an

unsecured loan. The ordinary civil action of the loan will
bar a second complaint for the judicial foreclosure of
mortgage.
In a 2011 decision, involving the same set of facts, the
SC changed its course. SC held that the existence of a
criminal case for violation of BP 22 is not a ground
to conclude that the mortgagee has abandoned his
mortgage lien. Notwithstanding the criminal case
for violation of BP 22 pending before the MTC, the
mortgagee can still institute a judicial foreclosure of
the mortgage.
Q: Arlene borrowed P1 million from GAP Bank (GAP)
secured by the titled land of her friend Gretchen
who, however, did not assume personal liability for
the loan. Arlene defaulted and GAP filed an action
for judicial foreclosure of the real estate mortgage
impleading Arlene and Gretchen as defendants. The
court rendered judgment directing Arlene to pay the
outstanding account of P1.5 million (principal plus
interest) to GAP. No appeal was taken by Arlene.
Arlene failed to pay the judgment debt within the
period specified in the decision. At the foreclosure
sale, the land was sold to GAP for P1.2 million. The
sale was confirmed by the court, and the
confirmation of the sale was registered with the
Registry of Deeds on January 5, 2002.
On January 10, 2003, GAP filed an ex-parte motion
with the court for the issuance of a writ of
possession to oust Gretchen from the land. It also
filed a deficiency claim for P800,000 against Arlene
and Gretchen. The deficiency claim was opposed by
Arlene and Gretchen.
1. Resolve the motion for the issuance of a writ of
possession.
2. Resolve the deficiency claim of the bank.
A:
1. In judicial foreclosure by banks such as GAP, the
mortgagor or debtor whose real property has been
sold on foreclosure has the right to redeem the
property within 1 year after the sale (or registration
of the sale). However, under Sec. 47 of the General
Banking Law of 2000, the purchaser at the auction
sale has the right to obtain a writ of possession
after the finality of the order confirming sale. The
motion for writ of possession, however, cannot be
filed ex parte. There must be a notice of hearing.

2. The deficiency claim of the bank may be enforced

against the mortgage debtor Arlene, but it cannot
be enforced against Gretchen, the owner of the
mortgaged property, who did not assume personal
liability of the loan. (2003 Bar Question)

INSTANCES WHEN COURT CANNOT RENDER

DEFICIENCY JUDGMENT
Q: What are the instances when the courts cannot
render deficiency judgment?
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and is not found in the
Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with
the probate court under Sec. 7, Rule 86; and
4. Mortgagee is a third person but not solidarily liable with
the debtor.
If the mortgagee holds a chattel mortgage, he will have to
foreclose it under the provisions of the Chattel Mortgage
Law via an extra-judicial foreclosure of chattel mortgage.
The problem of the mortgagee in a chattel mortgage is
similar to that of a mortgagee in a real estate mortgage. In
mortgage arrangements, the collateral is usually left to the
possession of the mortgagor. In real estate mortgage,
mortgagor continues to be in possession of the real
property. In a chattel mortgage, chattel is retained by
mortgagor. (If mortgagor loses possession of the personal
property, the contract will not remain a contract of
mortgage, but one of pledge.) With respect to real estate
mortgage, the possession of the collateral by debtor does
not give much of a problem. Mortgagee, if he is the highest
bidder, can ask for writ of possession after the auction
sale. The problem by the mortgagee in a chattel
mortgage is that the personal property must be in
his possession before he can extra-judicially sell the
chattel subject to the mortgage. Mortgagees in a
chattel mortgage usually resort to court action by
filing a complaint for replevin and avail of the
provisional remedy of a warrant of seizure or a writ
of replevin. The court can grant the provisional
remedy even before the mortgagor files an answer.
Once the mortgagee gains possession of the chattel, he
can proceed with the process of extra-judicial foreclosure
of a chattel mortgage.