Emergency Loan Pawnshop Inc. vs Court of Appeals, G.R. No.

129184, February
28, 2001

Motion to Dismiss on the ground of Improper Venue

Remedy in case if denial of Motion to Dismiss

The general rule is that the denial of a motion to dismiss a complaint is an interlocutory order
and, hence, cannot be appealed or questioned via a special civil action of certiorari until a final
judgment on the merits of the case is rendered.

The remedy of the aggrieved party is to file an answer to the complaint and to interpose as
defenses the objections raised in his motion to dismiss, proceed to trial, and in case of an
adverse decision, to elevate the entire case by appeal in due course.

However, the rule is not ironclad. Under certain situations, recourse to certiorari or mandamus
is considered appropriate, that is, (a) when the trial court issued the order without or in excess
of jurisdiction; (b) where there is patent grave abuse of discretion by the trial court; or, (c)
appeal would not prove to be a speedy and adequate remedy as when an appeal would not
promptly relieve a defendant from the injurious effects of the patently mistaken order
maintaining the plaintiff's baseless action and compelling the defendant needlessly to go
through a protracted trial and clogging the court dockets by another futile case. [Emergency
Loan Pawnshop Inc. vs Court of Appeals, G.R. No. 129184, February 28, 2001]

Venue for Filing Certiorari Petition

Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 00-2-03-SC which took effect
on September 1, 2000, provides that:

The petition shall be filed 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 appellate jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, unless otherwise provided by law or these Rules, the petition shall be filed
in and cognizable only by the Court of Appeals.

If the certiorari petition is filed in the Regional Trial Court (RTC), the rules provide guidance on
the proper venue for filing the petition (i.e. RTC exercising jurisdiction over the territorial area).
Notably, no such qualification is provided in certiorari actions to be filed with the Court of
Appeals or the Supreme Court. It is submitted that the reason for such disparity is found in the
fact that the RTC has defined territorial limits in the exercise of its jurisdiction, whereas no such
limits apply to the Court of Appeals or the Supreme Court. [see Sec 18 in relation to Sec 9 of
Batas Pambansa Blg. 129]. The Court of Appeals and the Supreme Court, therefore, have
concurrent original jurisdiction to entertain certiorari petitions on the actions of any or all
RTCs, wherever located in the Philippines.

Labor Law; Labor Relations; Procedure and Jurisdiction; Court of Appeals

The Supreme Court has ruled that judicial review of decisions of the NLRC may be sought via a
petition for certiorari before the CA under Rule 65 of the Rules of Court; and under Section 4
thereof, petitioners are allowed sixty (60) days from notice of the assailed order or resolution
within which to file the petition. Hence, in cases where a petition for certiorari is filed after the
expiration of the 10-day period under the 2011 NLRC Rules of Procedure but within the 60-day
period under Rule 65 of the Rules of Court, the CA can grant the petition and modify, nullify and
reverse a decision or resolution of the NLRC [St. Martin Funeral Home v. National Labor
Relations Commission, G.R. No. 130866, September 16, 1998]

Errors of judgment, as distinguished from errors of jurisdiction, are not within the province of a
special civil action for certiorari, which is merely confined to issues of jurisdiction or grave abuse
of discretion. [Leonis Navigation Co., Inc. v. Villamater, G.R. No. 179169, March 3, 2010]

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised
arbitrarily or despotically. [Pure foods v. NLRC, G.R. No. 78591, March 21, 1989]

The Court of Appeals can review the finding of facts of the NLRC and the evidence of the parties
to determine whether the NLRC gravely abused its discretion in finding that no employer-
employee relationship existed between petitioner and respondent. [Lirio v. Genovia, G.R. No.
169757, November 23, 2011]
Independent Civil Actions
A. Civil Liability Arising from a Criminal Offense (ex-Delicto) (Art 29 and Art
30, Civil Code)

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the
court shall so declare. In the absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not the acquittal is due to that ground.

Art. 30. When a separate civil action is brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are instituted during the pendency of the
civil case, a preponderance of evidence shall likewise be sufficient to prove the act
complained of.

The civil liability arising from the offense or ex delicto is based on the acts or omissions
that constitute the criminal offense; hence, its trial is inherently intertwined with the
criminal action. For this reason, the civil liability ex delicto is impliedly instituted with
the criminal offense. If the action for the civil liability ex delicto is instituted prior to or
subsequent to the filing of the criminal action, its proceedings are suspended until the
final outcome of the criminal action. The civil liability based on delict is extinguished
when the court hearing the criminal action declares that ‘the act or omission from which
the civil liability may arise did not exist’. [ see Lim vs. Kou Co Ping, G.R. Nos.
175256 and 179160, August 23, 2012]

An acquittal of the accused predicated on the conclusion 'that the guilt of the defendant
has not been satisfactorily established,' is equivalent to one on reasonable doubt and
does not preclude a suit to enforce the civil liability for the same act or omission under
Article 29 of the new Civil Code. [see Mendoza vs Alacala, G.R. No. L-14305,
August 29, 1961]

If a criminal case is dismissed by the trial court or if there is an acquittal, the offended
party or private complainant may file a motion for reconsideration of such dismissal or
acquittal or appeal therefrom but only insofar as the civil aspect thereof is concerned.
In so doing, the private complainant or offended party need not secure the conformity
of the public prosecutor. If the court denies his motion for reconsideration, the private
complainant or offended party may appeal or file a petition for certiorari or
mandamus,if grave abuse amounting to excess or lack of jurisdiction is shown and the
aggrieved party has no right of appeal or given an adequate remedy in the ordinary
course of law. [see Mobilia Products, Inc. vs. Hajime Umezawa, G.R. No.
149357, March 4, 2005]

When the civil action for the recovery of civil liability ex delicto is instituted with the
criminal action, whether by choice of private complainant (i.e., no reservation is made
or no prior filing of a separate civil action) or as required by the law or rules, the case
will be prosecuted under the direction and control of the public prosecutor. The civil
action cannot proceed independently of the criminal case. This includes subsequent
proceedings on the criminal action such as an appeal. Consequently, if the state
pursues an appeal on the criminal aspect of a decision of the trial court acquitting the
accused and private complainant/s failed to reserve the right to institute a separate civil
action,the civil liability ex delicto that is inherently attached to the offense is likewise
appealed. The appeal of the civil liability ex delicto is impliedly instituted with the
petition for certiorari assailing the acquittal of the accused. Private complainant cannot
anymore pursue a separate appeal from that of the state without violating the doctrine
of non-forum shopping. [see Garcia vs. Ferro Chemicals, Inc. G.R. No. 172505,
October 1, 2014]

B. Civil Liability Not arising from a Criminal Offense (Art 31 in relation to Art
32, 33, 34, 2176, 2177 Civil Code)

Art. 31. When the civil action is based on an obligation not arising from the act or
omission complained of as a felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter.

(1) Culpa Contractual

Art 31 of the Civil Code refers to a civil action based, not on the act or omission
charged as a felony in a criminal case, but to one based on an obligation arising from
other sources, such as law or contract.

To illustrate, a passenger of a common carrier vehicle was injured while being

transported to his destination due to the reckless negligence of the driver in operating
the vehicle. The injured passenger will have cause to bring criminal charges against the
driver for criminal negligence. In such event, civil liability (ex-declicto) may also be
recovered because every person who is criminally liable is also civilly liable. (Art 100,
Revised Penal Code)

This notwithstanding, the injured passenger may bring a separate and independent civil
action for damages against the common carrier, not on the basis of the criminal
negligence of the driver, but on the basis of breach of contractual liability of the
common carrier due to its failure to carry safely the passenger to their place of
destination. The action for civil liability arising from contract (culpa contractual) may be
instituted and prosecuted independently of, and regardless of the result of, the criminal
action against the driver (culpa criminal). [see Bernaldes, Sr. vs Bohol Land
Transportation, Inc. G.R. No. L-18193, February 27, 1963]

(2) Culpa Aquiliana (Quasi-delict)

Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice for the same act or omission of
the defendant.

Art 31 of the Civil Code also refers to actions for damages based on tort or quasi-delict
(culpa aquiliana) under Article 2176.
Consequently, a separate civil action for quasi-delict may lie against the offender in a
criminal act, whether or not he is found guilty or acquitted, provided that the offended
party is not allowed, if he is actually charged also criminally, to recover damages on
both scores, and would be entitled in such eventuality only to the bigger award of the
two. Moreover, the civil liability for the same act considered as a quasi-delict is not
extinguished even by a declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused. [see Elcano vs Hill,
G.R. No. L-24803, May, 26, 1977]

(3) Violation of Constitutional Rights (Art 32)

Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages

(1) Freedom of religion;

(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in a peaceable assembly to petition the government for
redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the
attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to
make such confession, except when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same
is imposed or inflicted in accordance with a statute which has not been judicially
declared unconstitutional; and
(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence
an entirely separate and distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution (if the latter be
instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute.

A public officer who directly or indirectly violates the constitutional rights of another,
may be validly sued for damages under Article 32 of the Civil Code even if his acts were
not so tainted with malice or bad faith. [see Cojuangco, Jr. v. Court of Appeals,
G.R. No. 119398, July 2, 1999; Lim vs Ponce de Leon, G.R. No. L-22554, August
29, 1975]

Article 32 of the Civil Code makes the persons who are directly, as well as indirectly,
responsible for the transgression, joint tortfeasors. [see Cojuangco, Jr. v. Court of
Appeals, G.R. No. 119398, July 2, 1999 in relation to Aberca vs Ver, G.R. No. L-
69866, April 15, 1988]

(4) Defamation, Fraud, Physical Injuries (Art 33)

Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages,
entirely separate and distinct from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.

As a rule, after a criminal action has been commenced, a civil action arising from the
same offense shall be suspended until final judgment in the criminal proceeding has
been rendered. However, by way of exception, Article 33 provides for instances where
the injured party need not wait for the conclusion of the criminal action in order to
proceed with the civil action. Specifically, in cases of defamation, fraud and physical
injuries, a civil action for damages may simultaneously and separately be filed by the
injured party which shall proceed independently of the criminal prosecution, and would
only require a preponderance of evidence.

When the law has allowed a civil case related to a criminal case, to be filed separately
and to proceed independently even during the pendency of the latter case, the intention
is patent to make the court's disposition of the criminal case of no effect whatsoever on
the separate civil case. This must be so because the offenses specified in Article 33 are
of such a nature, unlike other offenses not mentioned, that they may be made the
subject of a separate civil action because of the distinct separability of their respective
juridical cause or basis of action. [ see Salta vs De Veyra, G.R. No. L-37733
September 30, 1982]
The term "physical injuries" used in article 33 of the Civil Code includes homicide.
[Dyogi vs Yatco, G.R. No. L-9623, January 22, 1957]. Consequently, even while a
criminal case for homicide is still pending, a separate civil action for damages (on the
ground of physical injuries resulting in death) under Art 33 may still be proceeded
upon. Such civil action shall likewise not be subordinate to the outcome of the criminal
proceeding, such that even if the defendant is acquitted, the civil action may still
prosper, since liability is not based on civil liability ex delicto but based on a separate
provision of law, i.e. Art 33 of the Civil Code.

In contrast, however, where the offense charged is reckless imprudence resulting in

homicide, there is no independent civil action for damages that may be instituted in
connection with said offense. Hence, homicide through reckless imprudence or criminal
negligence comes under the general rule that the acquittal of the defendant in the
criminal action is a bar to his civil liability based upon the same criminal act. [see
Corpus vs Paje, G.R. No. L-26737, July 31, 1969]

An acquittal from a charge for violation of the Anti-Graft and Corrupt Practices Act
would not be a bar to civil action based on the same fraudulent acts for which the
criminal action was filed.[ see Salta vs De Veyra, G.R. No. L-37733 September 30,
1982]

Note: Article 33 speaks of a situation where an act which constitutes a crime gives rise
to two modes of recovering civil liability: (a) civil liability ex delicto under Art 100 of the
Revised Penal Code in relation to Art 29, Civil Code and (b) civil liability under Art 33 of
the Civil Code, but only for those acts constituting defamation, fraud and physical
injuries. Under the first mode, the action to recover civil liability is suspended until the
final outcome of the criminal action. The civil liability based on delict is likewise
extinguished upon the acquittal of the defendant on the ground that ‘the act or
omission from which the civil liability may arise did not exist’. Under the second mode,
the civil action need not await nor depend on the outcome of the criminal action since it
may proceed independently of the latter. However, under Art 2177 of the Civil Code,
the plaintiff cannot recover damages twice for the same act or omission of the
defendant.

(5) Failure or Refusal to Render Aid by a Peace Officer (Art 34)

Art. 34. When a member of a city or municipal police force refuses or fails to render aid
or protection to any person in case of danger to life or property, such peace officer shall
be primarily liable for damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be independent of any
criminal proceedings, and a preponderance of evidence shall suffice to support such
action.

C. No Need to Reserve Independent Civil Action

Section 3, Rule 111 of the present Revised Rules of Criminal Procedure (as amended
last December 1, 2000) reads:
Section 3. When civil action may proceeded independently. — In the cases provided
for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a preponderance of
evidence. In no case, however, may the offended party recover damages twice for the
same act or omission charged in the criminal action. (3a)

The 2000 Rules on Criminal Procedure deleted the requirement of reserving

independent civil actions and allowed these to proceed separately from criminal ones.
Thus, the civil actions referred to in Articles 32, 33,34 and 2176 of the Civil Code shall
remain separate, distinct and independent of any criminal prosecution based on the
same act.

The consequences of such revision and omission are:

1. The right to bring the foregoing actions based on the Civil Code need not be reserved
in the criminal prosecution, since they are not deemed included therein.

2. The institution or waiver of the right to file a separate civil action arising from the
crime charged does not extinguish the right to bring such action.

3. The only limitation is that the offended party cannot recover more than once for the
same act or omission.

Thus, deemed instituted in every criminal prosecution is the civil liability arising from
the crime or delict per se (civil liability ex delicto), but not those liabilities from quasi-
delicts, contracts or quasi-contracts. In fact, even if a civil action is filed separately, the
ex delicto civil liability in the criminal prosecution remains, and the offended party may
-- subject to the control of the prosecutor -- still intervene in the criminal action in
order to protect such remaining civil interest therein. By the same token, the offended
party may appeal a judgment in a criminal case acquitting the accused on reasonable
doubt, but only in regard to the civil liability ex delicto. [see Neplum, Inc. vs
Orbeso, G.R. No. 141986, July 11, 2002]

Related Reference(s)

 Mendoza vs. Alcala 112 Phil 929 or 2 SCRA 1032

G.R. No. L-14305 | 1961-08-29
 Nicasio Bernaldes, Sr. vs. Bohol Land Transportation, Inc. 117 Phil. 288 or 7 SCRA 276
G.R. No. L-18193 | 1963-02-27
 Laura Corpus vs. Felardo Paje 28 SCRA 1062
G.R. No. L-26737 | 1969-07-31
 Delfin Lim vs. Ponce De Leon
G.R. No. L-22554 | 1975-08-29
 Elcano and Elcano vs Hill and Hill 77 SCRA 98
G.R. No. L-24803 | 1977-05-26
 Salta, Alicia V. vs. Jesus de Veyra
G.R. No. L-37733 | 1982-09-30
  Rogelio Aberca vs. Fabian Ver 160 SCRA 590
G.R. No. L-69866 | 1988-04-15
 Eduardo M. Cojuangco Jr., Petitioner Vs. Court Of Appeals, The Philippine Charity
Sweepstakes Office And Fernando O. Carrascoso Jr., Respondents.
G.R. No. 119398 | 1999-07-02
 Neplum, Inc. vs Evelyn V. Orbeso.
G.R. No. 141986 | 2002-07-11
 Mobilia Products, Inc. vs Hajime Umezawa
G.R. No. 149357 | 2005-03-04
 Lily Lim vs. Kou Co Ping a.k.a. Charlie Co/Kou Co Ping a.k.a. Charlie Co vs. Lili Lim
G.R. Nos. 175256 and 179160 | 2012-08-23
 Garcia vs. Ferro Chemicals, Inc.
G.R. No. 172505 | 2014-10-01
 Dyogi vs Yatco 100 Phil 1095
G.R. No. L-9623 | 1957-01-22

Remedial Law; Civil Procedure; Demurrer to Evidence

After the plaintiff has completed the presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.
[Sec. 1, Rule 33, Rules of Court] Res judicata is not a ground for demurrer to evidence, since
grounds for res judicata present themselves even before the presentation of evidence. It should be
then that the defense of res judicata should be invoked as a ground for dismissal. [Republic v.
Tuvera, G.R. No. 148246, January 16, 2007]

Effect of denial of motion

He shall have the right to present evidence. [Sec. 1, Rule 33, Rules of Court] However, this does
not apply if the motion for demurrer to evidence is denied in an election case. [Gementiza v.
COMELEC, G.R. No. 140884, March 6, 2001]

The court should then set the date for the reception of the defendant’s evidence in chief, and not
grant the relief demanded by the plaintiff. [Northwest Airlines, Inc. v. Court of Appeals, G.R.
No. 120334, January 20, 1998]
An order denying a demurrer to evidence is interlocutory, and is, therefore, not appealable.
Nevertheless, in case of grave abuse of discretion amounting to lack or excess of jurisdiction, it
may be the subject of a petition for certiorari. [Katigbak v. Sandiganbayan, G.R. No. 140183,
July 10, 2003]

Effect if motion is granted but order of dismissal is reversed on appeal

He shall be deemed to have waived the right to present evidence. [Sec. 1, Rule 33, Rules of
Court; Republic v. Tuvera, G.R. No. 148246, January 16, 2007] The Court of Appeals should
then render judgment based on the evidence submitted by the petitioner. [Radiowealth Finance
Corp. v. Del Rosario, G.R. No. 138739, July 6, 2000; Consolidated Bank and Trust Co. v. Del
Monte Motor Works, Inc., G.R. No. 143338, July 29, 2005]

Related Reference(s)

Northwestern Airlines, Inc vs. CA, et al.

G.R. No. 120334 | 1998-01-20

GELACIO P. GEMENTIZA vs COMELEC and VICTORIO R. SUAYBAGUIO, JR.

G.R. No. 140884 | 2001-03-06

Teodoro K. Katigbak And Bienvenido E. Merelos Vs. The Sandiganbayan And PEOPLE

G.R. No. 140183 | 2003-07-10

Republic vs. J. C. Tuvera, et al.

G.R. No. 148246 | 2007-02-16

SendDownload

Remedial Law; Civil Procedure; Post-judgment remedies;

Appeals in general
Generally, the remedy to obtain reversal or modification of judgment on the merits is appeal, even if
the error or one of the errors ascribed is lack of jurisdiction, or the exercise of power in excess
thereof, or grave abuse of discretion. [Association of Integrated Security Force of Bislig-ALU v.
Court of Appeals, G.R. No. 140150, August 22, 2005] The right to appeal is not part of due
process but is a mere statutory privilege that must be exercised in the manner and in accordance with
the provisions of law. [Stolt-Nielsen Marine Services v. NLRC, G.R. No. 128395, December 29,
1998; Cu-Unjieng v. Court of Appeals, G.R. No. 139596, January 24, 2006; United Field Sea
Watchman and Checkers Agency v. Requillo, G.R. No. 143527, December 6, 2006; Beatingo
v. Gasis, G.R. No. 179641, February 9, 2011; Yu v. Samson-Tatad, G.R. No. 170979,
February 9, 2011]

Appeal cannot exist with certiorari

The existence and availability of the right to appeal proscribes resort to certiorari. One remedy
necessarily cancels out the other. One of the requirements for certiorari is that there should be no
appeal available. [Manacop v. Equitable-PCI Bank, G.R. Nos. 162814-17, August 25, 2005]

When appeals may be taken

An appeal may be taken from judgments or final orders that completely dispose of the case. [Sec. 1,
Rule 41, Rules of Court]

Record on appeal versus notice of appeal

An appeal is made by filing a notice of appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the adverse party. In special proceedings and
other cases of multiple or separate appeals where the law or the Rules of Court so require, a record on
appeal is required. [Sec. 2[a], Rule 41, Rules of Court]

Judgments or orders not appealable

No appeal may be taken from:


o An order denying a petition for relief or any similar motion seeking relief from
judgment;
o An interlocutory order;
o An order disallowing or dismissing appeal;
o 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;
o An order of execution;
o 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 appeal therefrom; and
o An order dismissing an action without prejudice. [Sec. 1, Rule 41, Rules of Court]

The remedy of the parties is to file a special civil action for certiorari under Rule 65. [Sec. 1, Rule 41,
Rules of Court; Trust International Paper Corporation v. Pelaez, G.R. No. 164871, August
22, 2006]

An order denying a motion for reconsideration or new trial is the proper subject of an appeal. [A.M.
No. 07-7-12-SC] However, the denial of a motion for new trial or reconsideration for an order
dismissing the action without prejudice is not appealable, the proper remedy being a special civil
action for certiorari. [Makati Insurance Co., Inc. v. Reyes, G.R. No. 167403, August 6, 2008]

Party cannot change theory on appeal

A party cannot, on appeal, change fundamentally the nature of the issue in the case. When a party
deliberately adopts a certain theory and the case is decided upon that theory in the court below, he
will not be permitted to change the same on appeal, because to permit him to do so would be unfair to
the adverse party. [Commissioner of Internal Revenue v. Mirant Pagbilao Corporation, G.R.
No. 159593, October 12, 2006] This rule also applies to criminal cases. [People v. Mamaril, G.R.
No. 171980, October 6, 2010]

Appellate court can only entertain issues raised in the lower court
Moreover, a question that was never raised in the courts below cannot be allowed to be raised for the
first time on appeal without offending basic rules of fair play, justice, and due process. [Canada v. All
Commodities Marketing Corporation, G.R. No. 146141, October 17, 2008; Bank of Commerce
v. Serrano, G.R. No. 151895, February 16, 2005; Philippine National Oil Company v. Court of
Appeals, G.R. No. 109976, April 26, 2005] Issues raised for the first time on appeal and not raised
in the proceedings in the lower court are barred by estoppel. [Imani v. Metropolitan Bank & Trust
Company, G.R. No. 187023, November 17, 2010]

Exceptions:


o In cases of lack of jurisdiction
o Where the lower court committed a plain error
o Where there are jurisprudential developments affecting the issues
o When the issues raised present a matter of public policy [Baluyot v. Poblete, G.R.
No. 144435, February 6, 2007; Pineda v. Heirs of Guevara, G.R. No. 143188,
February 14, 2007]

When errors not raised on appeal may be considered

As a general rule, errors not raised in the assignment of errors shall not be considered by the
appellate court. [Sec. 8, Rule 51, Rules of Court] However, there are certain exceptions to this rule,
as when the error:


o Affects the jurisdiction over the subject matter;
o Affects the validity of the judgment appealed from;
o Affects the validity of the proceedings;
o Is closely related to or dependent on an assigned error and properly argued in the
brief;
o Is a plain and clerical one

[Sec. 8, Rule 51, Rules of Court; see also Heirs of Doronio v. Heirs of Doronio, G.R. No.
169454, December 27, 2007; Dy v. NLRC, G.R. No. L-68544, October 27, 1986; Comilang v.
Burcena, G.R. No. 146853, February 13, 2006; Spouses Romulo v. Spouses Layug, G.R. No.
151217, September 8, 2006]

Further, the Court of Appeals is imbued with sufficient authority and discretion to review matters, not
otherwise assigned as errors on appeal, if it finds that the consideration is necessary in arriving at a
complete and just resolution of the case or to serve the interests of justice or to void dispensing
piecemeal justice. [Asian Terminals, Inc. v. NLRC, G.R. No. 158458, December 19, 2007]

Payment of docket fee

Payment of the docket fee within the prescribed period is mandatory for the perfection of an appeal.
Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the
action and the decision sought to be appealed from becomes final and executor. [Regalado v. Go,
G.R. No. 167988, February 6, 2007] Thus, payment of docket fees and other legal fees within the
prescribed period is both mandatory and jurisdictional, non-compliance with which is fatal to an
appeal. Non-payment of the appellate court docket and other lawful fees within the reglementary
period is a ground for the dismissal of an appeal. [Cu-Unjieng v. Court of Appeals, G.R. No.
139596, January 24, 2006]

Dismissal due to non-payment of docket fees remains discretionary upon the courts, and such power
should be used in accordance with the tenets of justice and fair play and with great deal of
circumspection considering all attendant circumstances. [Republic v. Spouses Luriz, G.R. No.
158992, January 26, 2007; Buenaflor v. Court of Appeals, G.R. No. 142021, November 29,
2000]

Grounds for dismissal of an appeal

The Court of Appeals may dismiss an appeal on its own motion or on that of the appellee on the
following grounds:


o Failure of the record on appeal to show on its face that the appeal was taken within
the period fixed by the Rules of court;
o Failure to file the notice of appeal or the record on appeal within the period prescribed
by the rules of Court;
o Failure of the appellant to pay the docket and other lawful fees as provided in Sec. 5,
Rule 40 and Sec. 4, Rule 41;
o Unauthorized alterations, omissions, or additions in the approved record on appeal;
o Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided
o Absence of specific assignment of errors in the appellant’s brief, or of page references
to the record as required in Sec. 13, paragraphs (a), (c), (d), and (f) of Rule 44;
o Failure of the appellant tot take the necessary steps for the correction or completion of
the record within the time limited by the court in its order;
o Failure of the appellant to appear at the preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of the court without justifiable cause; and
o The fact that the order or judgment appealed from is not appealable

[Sec. 1, Rule 51, Rules of Court]

The Supreme Court may dismiss an appeal motu proprio or on motion, based on the following
grounds:


o Failure to take the appeal within the reglementary period;
o Lack of merit in the petition;
o Failure to pay the requisite docket fee and other lawful fees or to make a deposit for
costs;
o Failure to comply with the requirements regarding proof of service and contents of and
the documents which should accompany the petition;
o Failure to comply with any circular, directive or order of the Supreme Court without
justifiable cause;
o Error in choice or mode of appeal; and
o The fact that the case is not appealable to the Supreme Court

[Sec. 5, Rule 56, Rules of Court]

A litigant’s failure to furnish his opponent with a copy of his appeal brief does not suffice to warrant
the dismissal of the appeal. All that is needed is for the court to order the litigant to furnish his
opponent with a copy of his brief [Tiangco v. Bank of the Philippines, G.R. No. 153998, October
6, 2010]

The appellate court has the discretion to dismiss or not to dismiss the appeal. [Tiangco v. Bank of
the Philippines, G.R. No. 153998, October 6, 2010; The Government of the Kingdom of
Belgium v. Court of Appeals, , G.R. No. 164150, April 14, 2008]

In case the appellant files the appellant’s brief late, the court has the power to still allow the appeal if
the lapse is for a reasonable period. The court should also take into consideration the following:


o Circumstances obtaining warrant the court’s liberality;
o Strong considerations of equity justify an exception to the procedural rule in the
interest of substantial justice;
o No material injury has been suffered by the appellee by the delay;
o No contention that the appellee’s cause was prejudiced
o No motion to dismiss was filed

[The Government of the Kingdom of Belgium v. Court of Appeals, G.R. No. 164150, April 14,
2008]

Mistake of counsel
Mistake of counsel is not an adequate excuse for the court to exercise indulgence except where:


o The reckless or gross negligence of counsel deprives the client of due process of law;
or
o Application of the rule will result in outright deprivation of the client’s liberty or
property; or
o The interests of justice so require

[Beatingo v. Gasis, G.R. No. 179641, February 9, 2011]

Related Reference(s)

 L.C. Dy, etal. Vs. Nat'l Labor Rel. Comm. Etal.

G.R. No. L-68544 | 1986-10-27
 Stolt-Nielsen Marine Services, Inc. vs NLRC, et al
G.R. No. 128395 | 1998-12-29
 Sps Buenaflor vs Ca, Sm United Rural Bank Of Panay Islands, Inc.
G.R. No. 142021 | 2000-11-29
 Bank Of Commerce vs. Teresita S. Serrano
G.R. No. 151895 | 2005-02-16
 Philippine National Oil Company (PNOC) vs. Court of Appeals 457 SCRA 32
G.R. No. 109976 | 2005-04-26
 Association of Integrated Security Force of Bislig, vs. Honorable Court of Appeals, et al.
G.R. No. 140150 | 2005-08-22
 Charles Cu-Unjieng vs. Hon. Court of Appeals, et al.
G.R. No. 139596 | 2006-01-24
  Salvador Comilang vs. Francisco Burcena, et al
G.R. No. 146853 | 2006-02-13
 Spouses Cesar R. Romulo and Nenita S. Romulo vs. Spouses Moises P. Layug, Jr., and Felisarin
Layug.
G.R. No. 151217 | 2006-09-08
 Commissioner of Internal Revenue vs. Mirant Pagbilao Corporation (Formerly Southern Energy
Quezon, Inc.)
G.R. No. 159593 | 2006-10-12
 United Field Sea Watchman and Checkers Agency, et al. vs. Willie Requillo, et al.
G.R. No. 143527 | 2006-12-06
 RP vs. Sps. J. & A. Luriz
G.R. No. 158992 | 2007-01-26
 G. Baluyut vs. E. Poblete, et al
G.R. No. 144435 | 2007-02-06
 Ma. Concepcion L. Regalado vs. A. S. Go
G.R. No. 167988 | 2007-02-06
 F. Pineda vs. Heirs of E. Guevara, et al
G.R. No. 143188 | 2007-02-14
 Asian Terminals, Inc., et al. vs. NLRC, et al.
G.R. No. 158458 | 2007-12-19
 The Heirs of Marcelino Doronio vs. Heirs of Doronio
G.R. No. 169454 | 2007-12-27
 The Government of Kingdom of Belgium Vs. Hon Court of Appeals
G.R. No. 164150 | 2008-04-14
 Makati Insurance Co. Inc Vs. Hon. Wilfredo D. Reyes, et al.
G.R. No. 167403 | 2008-08-06
 Ernesto P. Canada etc. Vs. All Commodities Marketing Corporation
G.R. No. 146141 | 2008-10-17
 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. OLIVE RUBIO MAMARIL, Accused-Appeellant.
G.R. No. 171980 | 2010-10-06
 JORGE L. TIANGCO, THE HEIRS OF ENRIQUE L. TIANGCO, GLORIA T. BATUNGBACAL, NARCISO L.
TIANGCO and SILVINO L. TIANGCO, Petitioners, vs. LAND BANK OF THE PHILIPPINES,
Respondent.
G.R. No. 153998 | 2010-10-06
 Evangeline D. Imani vs. Metropolitan Bank and Trust Company
G.R. No. 187023 | 2010-11-17
 Dolorita C. Beatingo vs. Lilia Bu Gasis
G.R. No. 179641 | 2011-02-09
 Judith Yu vs. Hon. Rosa Samson-Tatad
G.R. No. 170979 | 2011-02-09

2017 MyLegalWhiz ©. All rights reserved.

SendDownload
Remedial Law; Civil Procedure; Modes of discovery; Interrogatories to Parties

Interrogatories to Parties

By leave of court after jurisdiction has been obtained over any defendant or over property which
is the subject of the action, or without such leave after an answer has been served, any party
desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the
latter written interrogatories. [Sec. 1, Rule 25, Rules of Court] No party may, without leave of
court, serve more than one set of interrogatories to be answered by the same party. [Sec. 4, Rule
25, Rules of Court]

Within one day from receipt of the complaint, not only must summons be prepared but an order
requiring the parties to avail of interrogatories under Rule 25 and request for admission under
Rule 26 must also be issued. Nevertheless, the parties may use depositions under Rule 23 or
other measures under Rules 27 and 29 within five days from the filing of the answer, at their
discretion. [A.M. No. 03-1-09-SC]

These shall be answered by:

the party served

any officer competent to testify if the party is a public or private corporation, partnership, or
association [Sec. 1, Rule 25, Rules of Court]

Unlike written interrogatories under Rule 23, written interrogatories under Rule 25 are directed
only to parties to a case.

Answer to interrogatories
The interrogatories shall be answered fully in writing, and shall be signed and sworn to by the
person making them. [Sec. 2, Rule 25, Rules of Court]

Duty of party served with interrogatories

Such party shall file and serve a copy of the answers on the party submitting the interrogatories
within 15 days after service thereof. The court may extend or shorten the time upon motion and
for good cause shown. [Sec. 2, Rule 25, Rules of Court]

Objections to interrogatories

Objections to any interrogatories may be presented to the court within 10 days after service
thereof, with notice as in case of a motion. Answers shall be deferred until the objections are
resolved, which shall be at as early a time as is possible. [Sec. 3, Rule 25, Rules of Court]

Scope and use of interrogatories

They may relate to any matter, not privileged, which is relevant to the subject of the pending
action, whether relating to the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of relevant facts. [Sec. 5, Rule
25, Rules of Court] The inquiry can only extend to what is relevant and material to the issue.
[Gerochi v. Dept. of Energy, G.R. No. 159796, April 5, 2005]

Answers to the interrogatories may be used against any party who took part or had notice of the
interrogatory, in accordance with any of the following provisions:

any answer to an interrogatory may be used by any party for the purpose of contradicting or
impeaching the testimony of the party who answered the interrogatory as a witness;
 the answer to an interrogatory of party or of any one who at the time of answering such
interrogatory was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any purpose;

if only part of the answer to an interrogatory is offered in evidence by a party, the adverse
party may require him to introduce all of it which is relevant to the part introduced, and any party
may introduce any other parts. [Sec. 5, Rule 25, Rules of Court]

Effect of failure to serve written interrogatories

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, unless thereafter allowed by
the court for good cause shown and to prevent a failure of justice. [Sec. 6, Rule 25, Rules of
Court]

The complaint may be dismissed for non-suit if the plaintiff refuses to answer interrogatories
served upon him, unless he can justify such failure or refusal. [Marcelo v. Sandiganbayan, G.R.
No. 156605, August 28, 2007]

Denial of written interrogatory interlocutory in nature

A trial court order denying the written interrogatory is interlocutory, and the proper remedy is to
appeal the adverse judgment, incorporating therein the grounds for assailing the interlocutory
order. However, when the order disallowing the written interrogatory is patently erroneous,
resort to certiorari is warranted. [Ong v. Mazo, G.R. No. 145542, June 4, 2004]

Related Reference(s)

Ong vs Mazo

G.R. No. 145542 | 2004-06-04

Gerochi vs. Department of Energy

G.R. No. 159796 | 2007-07-17

 Marcelo vs. Sandiganbayan [DECISION]

G.R. No. 156605 | 2007-08-28

[2/2] Edward T. Marcelo, et al. Vs. Sandiganbayan, et al

G.R. No. 156605 | 2007-08-28

2017 MyLegalWhiz ©. All rights reserved.

SendDownload

Remedial Law; Civil Procedure; Motions ; Motion to

Dismiss
Not a responsive pleading
A motion to dismiss is not a responsive pleading and its filing does not preclude the exercise of the
plaintiff’s right to amend his complaint. [Paeste v. Jaurige, G.R. No. L-5711, December 29, 1953;
Republic v. Ilao, G.R. No. L-16667, January 30, 1962; Remington Industrial Sales v. Court of
Appeals, G.R. No. 133657, May 29, 2002]

Not encouraged
Currently, the Supreme Court discourages the filing of a motion to dismiss, and instead encourages
filing an answer to the complaint, alleging therein the grounds for a motion to dismiss. This restraint
in filing a motion to dismiss is contained in the summons, which shall be issued within one day from
receipt of the complaint. [A.M. No. 03-1-09-SC]

If no motion to dismiss has been filed, any of the grounds for dismissal provided for in Rule 16 may be
pleaded as an affirmative defense in the answer. The court, at its discretion, may conduct a
preliminary hearing thereon as if a motion to dismiss has been filed. [Sec. 6, Rule 16, Rules of
Court] If the court then dismisses the complaint (under Sec. 6), it shall be without prejudice to the
prosecution of a counterclaim pleaded in the answer in the same or separate action. [Sec. 6, Rule 16,
Rules of Court]

Grounds for a Motion to Dismiss [Sec. 1, Rule 16]


o Lack of jurisdiction over the person of the defendant
o Lack of jurisdiction over the subject matter of the claim
o Improper venue
o Lack of legal capacity to sue of the plaintiff
o That there is another action pending between the same parties for the same cause
o That the cause of action is barred by a prior judgment or by the statute of limitations
o That the pleading asserting the claim states no cause of action
o That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished
o That the claim on which the action is founded is unenforceable under the statute of
frauds
 o That a condition precedent for filing the claim has not been complied with

Laches may be considered as a ground for motion to dismiss under Sec. 1(h) of Rule 16, since an
abandoned or otherwise extinguished claim is broad enough to fall under laches. However, since
laches is factual in nature, it must be proved by the party claiming the same in a hearing specially set
to hear such motion to dismiss. [Pineda v. Heirs of Guevara, G.R. No. 143188, February 14,
2007]

Time for filing a Motion to Dismiss

A motion to dismiss must be filed within the time for filing the answer to the complaint or pleading
asserting a claim. It must be filed before filing such answer. [Sec. 1, Rule 16, Rules of Court]

Generally, a motion to dismiss filed after an answer has been filed is considered filed out of time.
[Phil-Ville v. Javier, G.R. No. 147738, December 13, 2005]

Exception to the general rule: When it may be filed even after answer has been filed
A motion to dismiss filed even after the answer has been served or filed will not be considered filed
out of time if it is based on any of the following grounds:


o Lack of jurisdiction over the subject matter
o Litis pendentia (another action pending between the same parties for the same cause)
o Res judicata (action is barred by prior judgment)
o Action is barred by the statute of limitations [Sec. 1, Rule 9, Rules of Court]

If such grounds are apparent from the pleadings or the evidence on record, the court may dismiss the
case motu proprio. [Heirs of Valientes v. Ramas, G.R. No. 157852, December 15, 2010]

These grounds are also considered exceptions to the omnibus motion rule. Thus, all other grounds
available at the time the motion to dismiss was filed must be included therein; otherwise, they are
deemed waived. [Sec. 8, Rule 15, Rules of Court]

Contents, form, hearing, and resolution

The content and form of a motion to dismiss shall follow the general contents and form of other
motions. Thus, it must state the relief sought (the dismissal of the action) together with the grounds
upon which it is based. It must be accompanied by supporting affidavits and papers if it is necessary
to prove the facts alleged therein. [Sec. 3, Rule 15, Rules of Court]

It must be set for hearing by the applicant [Sec. 4, Rule 15, Rules of Court] and should contain a
notice of hearing addressed to all parties concerned. [Sec. 5, Rule 15, Rules of Court] Notice to the
other party is mandatory, and absence of such would render the motion defective (pro forma). [Jehan
Shipping Corp. v. National Food Authority, G.R. No. 159750, December 14, 2005] A trial-type
hearing is mandated, wherein the parties are allowed to present evidence and argue their respective
positions before the court. [Capiral v. Robles, G.R. No. 173628, November 16, 2011]

At the hearing, the parties shall submit their arguments on the questions of law and their evidence on
the questions of fact involved, except those not available at that time. If the case goes to trial, the
evidence presented during the hearing shall automatically be part of the evidence of the party
presenting the same. [Sec. 3, Rule 16, Rules of Court]
After the hearing, the court may either: a) dismiss the action or claim (i.e., approve the motion); b)
deny the motion; or c) order the amendment of the pleading. [Sec. 3, Rule 16, Rules of Court] If
the motion is denied, the movant shall file his answer within the balance of the period prescribed by
Rule 11 to which he was entitled at the time of serving his motion. However, this period shall not be
less than five days, in any event. It shall be computed from the time he receives the notice of denial
of the motion. [Sec. 4, Rule 16, Rules of Court] He may raise the same ground he raised in the
denied motion to dismiss in the answer. [Sps. Rasdas v. Sps. Villa, G.R. No. 157605, December
13, 2005]

If the motion is denied, it is an interlocutory order which cannot be appealed. However, as long as it is
tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, it may be subject to
a petition for certiorari under Rule 65. [Lu Ym v. Nabua, G.R. No. 161309, February 23, 2005]

If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule
11, counted from the service of the amended pleading, unless the court provides a longer period.
[Sec. 4, Rule 16, Rules of Court]

If the ground relied upon is dubitable, the court should not defer the resolution of the motion. And in
every case, the resolution shall state clearly and distinctly the reasons therefor. [Sec. 3, Rule 16,
Rules of Court]

Hypothetical admissions
A motion to dismiss contains hypothetical admissions as to the truth of the factual allegations in the
complaint. [Peltan Dev’t Inc. v. CA, G.R. No. 117029, March 19, 1997; Cuarto v. De Luna, G.R.
No. L-23279, January 31, 1968] However, these only apply to those factual allegations sufficiently
pleaded and the material allegations in the complaint. It does not apply to mere charges of fraud,
allegations of legal conclusions or erroneous statements of law, inferences from facts not stated,
matters of evidence, or irrelevant matters. [De Dios v. Bristol Laboratories, G.R. No. L-25530,
January 29, 1974]

Effect of dismissal
An order granting a motion to dismiss shall bar the refilling of the same action or claim, except if
based on the ff. grounds:


o Res judicata
o Prescription
o Paid, waived, abandoned, or otherwise extinguished claim or demand
o Unenforceability under the statute of frauds [Sec. 5, Rule 16, Rules of Court]

Such dismissal of the complaint and granting of the motion to dismiss is subject to appeal. [Sec. 5,
Rule 16, Rules of Court]

Related Reference(s)

 Pedro Paeste And Felix Carpio vs. Rustico Jaurigue 094 Phil 179
G.R. No. L-5711 | 1953-12-29
 Republic Of The Phil. Vs. Melquiades G. Ilao, Et Al.114 Phil. 65
G.R. No. L-16667 | 1962-01-30
  Alejandra Cuarto vs. Estelita De Luna, Et Al.
G.R. No. L-23279 | 1968-01-31
 de Dios, et al. vs. Bristol Laboratories (Phil.), Inc., et al.
G.R. No. L-25530 | 1974-01-29
 Peltan Development, Inc. vs. Court of Appeals, et al.
G.R. No. 117029 | 1997-03-19
 Remington Industrial Sales Corporation vs The CA And British Steel (Asia), Ltd.
G.R. No. 133657 | 2002-05-29
 Douglas Lu Ym vs. Gertrudes Nabua, et al
G.R. No. 161309 | 2005-02-23
 Phil-Ville Development and Housing Corporation, et al. vs. Mercedes Javier, et al
G.R. No. 147738 | 2005-12-13
 Sps. Enriqueta Rasdas and Tomas Rasdas, et al. vs. Jaime Estenor
G.R. No. 157605 | 2005-12-13
 F. Pineda vs. Heirs of E. Guevara, et al
G.R. No. 143188 | 2007-02-14
 Heirs of Valientes vs. Ramas
G.R. No. 157852 | 2010-12-15
 SEVERINO S. CAPIRAL, Petitioner, vs. SIMEONA CAPIRAL ROBLES and VICENTE CAPIRAL,
Respondents.
G.R. No. 173628 | 2011-11-16

2017 MyLegalWhiz ©. All rights reserved.

SendDownload

Labor Law; Labor Relations; Procedure and Jurisdiction; Court of Appeals

The Supreme Court has ruled that judicial review of decisions of the NLRC may be sought via a
petition for certiorari before the CA under Rule 65 of the Rules of Court; and under Section 4
thereof, petitioners are allowed sixty (60) days from notice of the assailed order or resolution
within which to file the petition. Hence, in cases where a petition for certiorari is filed after the
expiration of the 10-day period under the 2011 NLRC Rules of Procedure but within the 60-day
period under Rule 65 of the Rules of Court, the CA can grant the petition and modify, nullify and
reverse a decision or resolution of the NLRC [St. Martin Funeral Home v. National Labor
Relations Commission, G.R. No. 130866, September 16, 1998]

Errors of judgment, as distinguished from errors of jurisdiction, are not within the province of a
special civil action for certiorari, which is merely confined to issues of jurisdiction or grave
abuse of discretion. [Leonis Navigation Co., Inc. v. Villamater, G.R. No. 179169, March 3,
2010]
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised
arbitrarily or despotically. [Pure foods v. NLRC, G.R. No. 78591, March 21, 1989]

The Court of Appeals can review the finding of facts of the NLRC and the evidence of the
parties to determine whether the NLRC gravely abused its discretion in finding that no employer-
employee relationship existed between petitioner and respondent. [Lirio v. Genovia, G.R. No.
169757, November 23, 2011]

Related Reference(s)

Pure Foods Corp. vs. Nat'l Labor Rel. Comm. Etal.

G.R. No. 78591 | 1989-03-21

St. Martin Funeral Home vs NLRC 295 SCRA 494

G.R. No. 130866 | 1998-09-16

Leonis Navigation Co., Inc. and World Marine Panama, S.A. Vs. Catalino U. Villamater, et al.

G.R. No. 179169 | 2010-03-03

Lirio vs. Genovia

G.R. No. 169757 | 2011-11-23

2017 MyLegalWhiz ©. All rights reserved.

SendDownload

Labor Law; Labor Relations; Procedure and Jurisdiction;

National Labor Relations Commission (NLRC)
Jurisdiction

The NLRC exercise two kinds of jurisdiction:

1. Original
2. Exclusive appellate jurisdiction.

Original

1. Injunction in ordinary Labor disputes to enjoin or restrain any actual or

threatened commission of any or all prohibited or unlawful acts or to require the
performance of a particular act;
2. Injunction in strikes or lockouts under Article 264;
3. Labor disputes causing or likely to cause a strike or lockout in an industry
indispensable to it by the Secretary of Labor.

Appellate

1. All cases decided by the Labor Arbiters;

2. Contempt cases decided by the Labor Arbiters;
3. Cases decided by the DOLE Regional Directors or the duly authorized hearing
officers of the DOLE involving recovery of wages, simple money claims and other
benefits under Article 129. [J. Chan, Bar Reviewer on Labor Law (2012)]

It must be noted that the NLRC does not have original jurisdiction over cases
enumerated in paragraph a of Article 217 and that if a claim does not fall within the
exclusive original jurisdiction, the NLRC cannot have appellate jurisdiction thereon.
[Pondoc v. NLRC, G.R. No. 116347, October 3, 1996] The Supreme Court has ruled
that perfection of an appeal within the reglementary period is not only mandatory but
also jurisdictional and failure to do so renders the questioned decision final and
executory, thus depriving the appellate court of jurisdiction to alter the final judgment,
much less to entertain the appeal. [Asuncion v. NLRC, G.R. No. 109311, June 17,
1997]

The Commission also has rule making powers, it has been ruled in one case where
pursuant to the "no extension policy" of the National Labor Relations Commission,
aforesaid motion for extension of time was denied in its resolution dated November 15,
1985 and the appeal was dismissed for having been filed out of time. The Court held
that, it is an elementary rule in administrative law that administrative regulations and
policies enacted by administrative bodies to interpret the law which they are entrusted
to enforce, have the force of law, and are entitled to great respect. [Rizal Empire
Insurance v. NLRC, G.R. No. 73140, May 29, 1987]

Effect of NLRC reversal of Labor Arbiter’s order of reinstatement

If the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory

on the part of the employer to reinstate and pay the wages of the dismissed employee
during the period of appeal until reversal by the higher court. On the other hand, if the
employee has been reinstated during the appeal period and such reinstatement order is
reversed with finality, the employee is not required to reimburse whatever salary he
received for he is entitled to such, more so if he actually rendered services during the
period. [Garcia v. PAL, G.R. No. 164856, January 20, 2009]

The Labor Arbiter’s order of reinstatement was immediately executory. After receipt of
the Labor Arbiter’s decision ordering private respondents’ reinstatement, petitioner has
to either re-admit them to work under the same terms and conditions prevailing prior
to their dismissal, or to reinstate them in the payroll. Failing to exercise the options in
the alternative, petitioner must pay private respondents’ salaries which automatically
accrued from notice of the Labor Arbiter’s order of reinstatement until its ultimate
reversal of the NLRC. Since private respondent’s reinstatement pending appeal was
effective only until its reversal by the NLRC on April 28, 1999, they are no longer
entitled to salaries from May 1, 1999 to March 15, 2001, as ordered by the Labor
Arbiter. [Kimberly Clark v. Facundo, G.R. No. 144885, July 12, 2006]

To clarify, respondents are entitled to their accrued salaries only from the time
petitioner received a copy of Labor Arbiter Gan’s Decision declaring respondents’
termination illegal and ordering their reinstatement up to the date of the NLRC
Resolution overturning that of the Labor Arbiter. This is because it is only during said
period that respondents are deemed to have been illegally dismissed and are entitled to
reinstatement pursuant to Labor Arbiter Gan’s Decision which was the one in effect at
that time. Beyond that period, the NLRC Resolution declaring that there was no illegal
dismissal is already the one prevailing. From such point, respondents’ salaries did not
accrue not only because there is no more illegal dismissal to speak of but also because
respondents have not yet been actually reinstated and have not rendered services to
petitioner. [ISLRIZ Trading v. Capada, G.R. No. 168501, January 31, 2011]

Remedies

Can the aggrieved party filed an appeal to the Court of Appeals? No, the rule is clear, it
specifically states that, [T]his Rule shall not apply to judgments or final orders issued
under the Labor Code of the Philippines. [Rule 43, Rules of Court]

The period or manner of appeal from the NLRC to the CA is governed by Rule 65. The
Court added, that ever since appeals from the NLRC to the Supreme Court were
eliminated, the legislative intendment was that the special civil action of certiorari was
and still is the proper vehicle for judicial review of decisions of the NLRC. The use of the
word "appeal" in relation thereto and in the instances we have noted could have been a
lapsus plumae because appeals by certiorari and the original action for certiorari are
both modes of judicial review addressed to the appellate courts. The important
distinction between them, however, and with which the Court is particularly concerned
here is that the special civil action ofcertiorari is within the concurrent original
jurisdiction of this Court and the Court of Appeals [St. Martin Funeral Home v.
National Labor Relations Commission, G.R. No. 130866, September 16, 1998]

Certified cases
When, in his opinion, there exists a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the national interest, the Secretary of Labor and
Employment may assume jurisdiction over the dispute and decide it or certify the same
to the Commission for
compulsory arbitration. Such assumption or certification shall have the effect of
automatically enjoining the intended or impending strike or lockout as specified in the
assumption or certification order. If one has already taken place at the time of
assumption or certification, all striking or locked out employees shall immediately
return-to-work and the employer shall immediately resume operations and readmit all
workers under the same terms and conditions prevailing before the strike or lockout.
The Secretary of Labor and Employment or the Commission may seek the assistance of
law enforcement agencies to ensure compliance. [Article 263 (g), Labor Code of the
Philippines]

The NLRC was thereby charged with the task of implementing a valid return-to-work
order of the Secretary of Labor. As the implementing body, its authority did not include
the power to amend the Secretary's order. Since the Secretary's July 18 order
specifically provided that the dismissed faculty members shall be readmitted under the
same terms and conditions prevailing prior to the present dispute, the NLRC should
have directed the actual reinstatement of the concerned faculty members. It therefore
erred in granting the alternative remedy of payroll reinstatement which, as it turned,
only resulted in confusion. The remedy of payroll reinstatement is nowhere to be found
in the orders of the Secretary of Labor and hence it should not have been imposed by
the public respondent NLRC. There is no showing that the facts called for this type of
alternative remedy. [University of Sto. Tomas v. NLRC, G.R. No. 89920, October
18, 1990]

Article 263(g) is both an extraordinary and a preemptive power to address an

extraordinary situation – a strike or lockout in an industry indispensable to the national
interest. This grant is not limited to the grounds cited in the notice of strike or lockout
that may have preceded the strike or lockout; nor is it limited to the incidents of the
strike or lockout that in the meanwhile may have taken place. As the term “assume
jurisdiction” connotes, the intent of the law is to give the Labor Secretary full authority
to resolve all matters within the dispute that gave rise to or which arose out of the
strike or lockout; it includes and extends to all questions and controversies arising from
or related to the dispute, including cases over which the labor arbiter has exclusive
jurisdiction. [Bagong Pagkakaisa ng Manggagawa v. Secretary, G.R. No. 167401,
July 5, 2010]

Related Reference(s)

 Rizal Empire Insurance Group vs. Nat'l Labor Rel.

G.R. No. 73140 | 1987-05-29
 University Of Sto. Tomas Vs. National Labor Relations Commission, Et Al.
G.R. No. 89920 | 1990-10-18
 Natividad Pondoc vs NLRC, et al.
G.R. No. 116347 | 1996-10-03
  Zenaida Asuncion vs. Nlrc, et al.
G.R. No. 109311 | 1997-06-17
 St. Martin Funeral Home vs NLRC 295 SCRA 494
G.R. No. 130866 | 1998-09-16
 Juanito A. Garcia, et al. Vs. Philippine Airlines, Inc
G.R. No. 164856 | 2007-08-29
 Juanito A. Garcia, et al. Vs. Philippine Airlines, inc.
G.R. No. 164856 | 2009-01-20
 Juanito A. Garcia, et al. Vs. Philippine Airlines, inc. [SEPARATE OPINION]
G.R. No. 164856 | 2009-01-20
 Bagong Pagkakaisa ng Manggagawa ng Tirumph International, et al. Vs. Secretary of Department
of Labor and Employment, et al./Triumph International (phils.), Inc. Vs. Bagong Pagkakaisa ng
Manggagawa ng Triumph International, et al.
G.R. No. 167401 | 2010-07-05

2017 MyLegalWhiz ©. All rights reserved.

SendDownload

Requirement of Verification in Pleadings

Requirement for Verification

As a general rule, verification is not a mandatory requirement for pleadings. Verification

is only necessary when so required by statute or a procedural rule.

Except when otherwise specifically required by law or rule, pleadings need not be under
oath, verified or accompanied by affidavit. [Sec 4, Rule 7, 1997 Rules of Court, as
amended by A.M. No. 00-2-10-SC]

Proper Verification

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on
authentic records.

A pleading required to be verified which contains a verification based on “information

and belief,” or upon “knowledge, information and belief,” or lacks a proper verification,
shall be treated as an unsigned pleading. [Sec 4, Rule 7, 1997 Rules of Court, as
amended by A.M. No. 00-2-10-SC]
Pleadings that need to be Verified

A. Before the Courts

 Civil complaints or initiatory pleadings asserting claims for relief (including

permissive counter-claims). (See Sec. 5, Rule 7, Rules of Civil Procedure)
 Statement of Claim for Small Claims Cases, as well as the Response thereto (See
Secs. 5 & 11, Rules of Procedure for Small Claims Cases)
 Complaint for injunction (See Sec. 4, Rule 58, Rules of Civil Procedure)
 Application for appointment of receiver (See Sec. 1, Rule 59, Rules of Civil
Procedure )
 Application for support pendente lite (See Sec. 1, Rule 69, Rules of Civil
Procedure)
 Petition for forcible entry or unlawful detainer, the answers thereto, and the
answers to any compulsory counter-claim and cross-claim pleaded in the answer
(See Sec. 4, Rule 70, Rules of Civil Procedure)
 Petition for indirect contempt (See Sec. 4, Rule 71, Rules of Civil Procedure)
 Petition for relief from judgment or order. (See Sec. 3, Rule 38, Rules of Civil
Procedure)
 Petition for Review from the RTC to the Supreme Court (See Sec. 2[c], Rule 41,
Rules of Civil Procedure)
 Petition for Review from RTC to Court of Appeals (See Sec. 1, Rule 42, Rules of
Civil Procedure)
 Petition for Review under Rule 43, from CTA and other quasi-judicial agencies to
Court of Appeals (See Sec. 5, Rule 43, Rules of Civil Procedure)
 Appeal by certiorari under Rule 45, from Court of Appeals to Supreme Court (See
Sec. 1, Rule 45, Rules of Civil Procedure)
 Petition for certiorari (special civil action) under Rule 64 (See Sec. 2, Rule 64,
Rules of Civil Procedure)
 Petition for certiorari (special civil action) under Rule 65 (See Sec. 1, Rule 65,
Rules of Civil Procedure)
 Petition for prohibition under Rule 65 (See Sec. 2, Rule 65, Rules of Civil
Procedure)
 Petition for Mandamus under Rule 65 (See Sec. 3, Rule 65, Rules of Civil
Procedure)
 Petition for appointment of guardian (See Sec. 2, Rule 93, Rules of Court )
 Petition for leave filed by guardian to sell or encumber property of an estate (See
Sec. 1, Rule 95, Rules of Court)
 Petition for declaration of competency of a ward (See Sec. 1, Rule 97, Rules of
Court)
 Petition for habeas corpus (See Sec. 3, Rule 102, Rules of Court)
 Petition for change of name (See Sec. 2, Rule 103, Rules of Court)
 Petition for voluntary judicial dissolution of a corporation (See Sec. 1, Rule 105,
Rules of Court ; see also Sec. 119, Corporation Code)
 Petition for cancellation or correction of entries in the civil registry under Rule
108 (See Sec. 1, Rule 108, Rules of Court)
 Petition for correction of a clerical or typographical error in an entry and/or
change of first name or nickname in the civil register filed with the civil register
office pursuant to Republic Act No. 9048 (See. Sec. 3, R.A. No. 9048)
 Petition for adoption (See Sec. 7, Rule of Adoption)
  Petition for legal separation (See Sec. 2(b)(3), Rule on Legal Separation)
 Petition for declaration of absolute nullity of void marriages and annulment of
voidable marriages (See Sec. 5, Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages)
 Petitions in summary judicial proceedings in the family law based on Articles 41,
51, 69, 73, 96, 124,127, 223, 225, 235 & 239 of the Family Code (See Arts.
239, 249 & 253, Family Code)
 Complaints filed under the Interim Rules of Procedure on Intra-Corporate
Controversies, as well as the Answer thereto. (See Sec. 3, Rule 2,Interim Rules
of Procedure on Intra-Corporate Controversies)
 All pleadings, motions, oppositions, defenses or claims filed by any interested
party in any proceeding governed by the Rules of Procedure on Corporate
Rehabilitation (2008) (See Sec. 1, Rule 3, Rules of Procedure on Corporate
Rehabilitation)
 Complaints filed with the Court of Tax Appeals (See Sec. 1, Rule 6, Revised Rules
of Procedure of the Court of Tax Appeals)
 Petitions for Review filed with the CTA (See Sec. 2, Rule 6, Revised Rules of
Procedure of the Court of Tax Appeals)
 All complaints, compulsory counterclaims and cross-claims’ pleaded in the
answer, and the answers thereto, filed under summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial
Courts, and the Municipal Circuit Trial Courts. (See Sec. 3, Rule 2, Revised Rules
on Summary Procedure)
 A petition for the issuance of a writ of amparo and the return thereof; and in
connection with the amparo proceedings, motion for an inspection order or for a
production order. (See The Rule on the Writ of Amparo)
 A petition for the issuance of a writ of habeas data and the return thereof. (See
The Rule on the Writ of Habeas Data)
 Election protests or petitions for quo warranto relating to elective municipal and
barangay officials filed with the general courts; as well as the answers thereto
(See Sec. 7, Rule 3 and Sec. 1, Rule 4, Rules of Procedure in Election Contests
Before the Courts Involving Elective Municipal and Barangay Officials)

B. Before Constitutional Commissions/Quasi-Judicial Agencies

 The following pleadings filed before the Commission on Elections, as well as the
answers thereto: protests or petitions in ordinary actions, special actions, special
cases, special reliefs, provisional remedies, special proceedings, counter-

Court explained in Eternal Gardens Memorial Park v. Court of Appeals [G.R. No. L-50054. August 17,
1988]:

Although this Court did not issue any restraining order against the Intermediate Appellate Court to
prevent it from taking any action with regard to its resolutions .... upon learning of the petition, the
appellate court should have refrained from ruling thereon because its jurisdiction was necessarily
limited upon the filing of a petition for certiorari with this Court questioning the propriety of the
issuance of the above-mentioned resolutions. Due respect for the Supreme Court and practical and
ethical considerations should have prompted the appellate court to wait for the final determination of
the petition before taking cognizance of the case and trying to render moot exactly what was before this
court [underscoring supplied]
[Republic vs. Sandiganbayan, G.R. No. 166859, June 26, 2006; see also Joy Mart Consolidated Corp. v.
Court of Appeals, G.R. No. 88705, June 11, 1992, 209 SCRA 738]

of a decision of the Labor Arbiter or NLRC which is favorable to an employee, the Labor Arbiter or the
NLRC must exercise extreme prudence and observe judicial courtesy when the circumstances so
warrant.

 Eternal Gardens Memorial Park vs. Court of Appeals

G.R. No. L-50054 | 1988-08-17
 Joy Mart Consolidated Corp. vs. Court Of Appeals 209 SCRA 738
G.R. No. 88705 | 1992-06-11
 Zamboanga City Water District Vs. Musib M. Buat, Et Al.
G.R. No. 104389 | 1994-05-27
 Go vs. Judge Abrogar 398 SCRA 166
A.M. No. RTJ-03-1759 | 2003-02-27
 Milagros Panuncillo vs. CAP Philippines, Inc.
G.R. No. 161305 | 2007-02-09
 Saudi Arabian Airlines v. Ma. Jopette M. Rebesencio ( Minute Resolution)
G.R. No. 194321 | 2010-12-01
 Datu Michael Abas Kida vs. Senate of the Philippines
G.R. No. 196271/196305/197221/197280/197282/197392/197454 | 2012-02-28

2017 MyLegalWhiz ©. All rights reserved.

SendDownload

Sandiganbayan, jurisdiction
Under RA 8249, to determine whether the Sandiganbayan has jurisdiction, lawyers must look into two
(2) criteria, namely:

(i) The nature of the offense and

(ii) The salary grade of the public official.

ORIGINAL EXCLUSIVE JURISDICTION

a) Direct Bribery under Art. 210 as amended by BP 871, May 29, 1985;

b) Indirect Bribery under Art. 211 as amended by BP 871, May 29, 1985;

c) Qualified Bribery under Art. 211-A as amended by RA 7659, Dec. 13, 1993;

d) Corruption of public officials under Art. 212

where one or more of the accused are officials occupying the following positions in the government
whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

1) Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 Republic
Act No. 6758) specifically including:

a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, provincial

treasurers, assessors, engineers and other provincial department heads;

b) City mayors, vice-mayors, members of the sangguniang panglungsod, city treasurers, assessors,
engineers and other department heads;

c) Officials of the diplomatic service occupying the position of consul and higher;

d) Philippine Army and Air force colonels, naval captains and all officers of higher rank;

e) Officers of the PNP while occupying the position of Provincial Director and those holding the rank of
Senior Superintendent or higher;
f) City and provincial prosecutors and their assistants; officials and the prosecutors in the Office of the
Ombudsman and special prosecutor ;

g) President, directors or trustees or managers of government owned or controlled corporations, state

universities or educational institutions or foundations;

2) Members of Congress and Officials thereof classified as Grade 27 and up under the Compensation and
Classification Act of 1989;

3) Members of the Judiciary without prejudice to the provision of the Constitution;

4) Chairmen and members of Constitutional Commissions, without prejudice to the provision of the
Constitution;

5) All other national and local officials classified as Grade 27 and higher under the Compensation and
Position Classification Act of 1989.

IV. Other offenses or felonies whether simple or complexed with other crimes committed in relation to
their office by the public officials and employees mentioned above;

V. Civil and Criminal Cases filed pursuant to and in connection with EO 1, 2, 14 & 14-A issued in 1986

VI. Petitions for issuance of Writ of mandamus, prohibition, certiorari, habeas corpus, injunction and
other ancillary writs and processes in aid of its appellate jurisdiction; Provided, jurisdiction is not
exclusive of the Supreme Court

VII. Petitions for Quo Warranto arising or that may arise in cases filed or that may be filed under EO 1, 2,
14 & 14- A
VIII. Other offenses, provided the accused belongs to Salary Grade 27 or higher:

a.) Violation of RA 6713 - Code of Conduct and Ethical Standards

b.) Violation of RA 7080 - The Plunder Law

c.) Violation of RA 7659 - The Heinous Crime Law

d.) RA 9160 - Violation of The Anti-Money Laundering Law when committed by a public officer

e.) PD 46 referred to as the gift-giving decree which makes it punishable for any official or employee to
receive directly or indirectly and for the private person to give or offer to give any gift, present or other
valuable thing on any occasion including Christmas, when such gift, present or valuable thing is given by
reason of his official position, regardless of whether or not the same is for past favors or the giver hopes
or expects to receive a favor or better treatment in the future from the public official or employee
concerned in the discharge of his official functions. Included within the prohibition is the throwing of
parties or entertainment in honor of the official or employee or his immediate relatives.

f.) PD 749 which grants immunity from prosecution to any person who voluntarily gives information
about any violation of Art.210, 211 or 212 of the RPC, RA 3019, Sec.345 of the NIRC, Sec. 3604 of the
Customs and Tariff Code and other provisions of the said Codes penalizing abuse or dishonesty on the
part of the public officials concerned and other laws, rules and regulations penalizing graft, corruption
and other forms of official abuse and who willingly testifies against the public official or employee
subject to certain conditions.

It should be noted that private individuals can be sued in cases before the Sandiganbayan if they are
alleged to be in conspiracy with the public officer. [Ambil, Jr, vs. Sandiganbayan, G.R. No. 175457, July 6,
2011]

APPELLATE JURISDICTION
The Sandiganbayan is vested with Appellate Jurisdiction over final judgments, resolutions or orders of
the RTC whether in the exercise of their original or appellate jurisdiction over crimes and civil cases
falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by
public officers below Salary Grade 27.

Appeal to the Sandiganbayan from a decision of the Regional Trial Court in the exercise of its appellate
jurisdiction shall be by Petition for Review under Rule 42 of the 1997 Rules of Civil Procedure. [Sec 2,
Rule XI, Part III of the Revised Internal Rules of the Sandiganbayan; Villanueva vs People, G.R. No.
188630, February 23, 2011]

Related Reference(s)

 Filomena L. Villanueva vs. People of the Philippines

G.R. No. 188630 | 2011-02-23
 Revised Internal Rules of the Sandiganbayan
A.M. No. 02-6-07-SB | 2002-10-01

2017 MyLegalWhiz ©. All rights reserved.

Office of the Ombudsman, powers and jurisdiction

Creation

There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one Overall Deputy and at least one Deputy
each for Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Article XI, Section 5 of the 1987
Constitution)

Powers and functions under the Constitution:

1. Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office, or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.

2. Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency, or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.
3. Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.

4. Direct the officer concerned, in any appropriate case, and subject to such limitations
as may be provided by law, to furnish it with copies relating to contracts or transactions
entered into by hid office involving the disbursement or use of public funds or
properties, and report ant irregularity to the Commission on Audit for appropriate
action.

5. Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.

6. Publicize matters covered by its investigation when circumstances so warrant and

with due prudence.

7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and

corruption in the Government and make recommendations for their elimination and the
observance of high standards of ethics and efficiency.

8. Promulgate its rules of procedure and exercise such powers or perform such
functions or duties as may be provided for by law. (Article XI, Section 13 of the 1987
Constitution)

Powers and functions under the Ombudsman Act of 1989

Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall
have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction,
it may take over, at any stage, from any investigatory agency of Government, the
investigation of such cases;

(2) Direct, upon complaint or at its own instance, any officer or employee of the
Government, or of any subdivision, agency or instrumentality thereof, as well as any
government-owned or controlled corporations with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglect to perform an act or discharge a duty required by law,
and recommend his removal, suspension, demotion, fine, censure, or prosecution, and
ensure compliance therewith; or enforce its disciplinary authority as provided in Section
21 of this Act: provided, that the refusal by any officer without just cause to comply
with an order of the Ombudsman to remove, suspend, demote, fine, censure, or
prosecute an officer or employee who is at fault or who neglects to perform an act or
discharge a duty required by law shall be a ground for disciplinary action against said
officer;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations
as it may provide in its rules of procedure, to furnish it with copies of documents
relating to contracts or transactions entered into by his office involving the
disbursement or use of public funds or properties, and report any irregularity to the
Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents;

(6) Publicize matters covered by its investigation of the matters mentioned in

paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due
prudence: provided, that the Ombudsman under its rules and regulations may
determine what cases may not be made public: provided, further, that any publicity
issued by the Ombudsman shall be balanced, fair and true;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government, and make recommendations for their elimination and the
observance of high standards of ethics and efficiency;

(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony
in any investigation or inquiry, including the power to examine and have access to bank
accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same
procedure and with the same penalties provided therein;

(10) Delegate to the Deputies, or its investigators or representatives such authority or

duty as shall ensure the effective exercise or performance of the powers, functions, and
duties herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the parties
involved therein.

The Ombudsman shall give priority to complaints filed against high ranking government
officials and/or those occupying supervisory positions, complaints involving grave
offenses as well as complaints involving large sums of money and/or properties.
(Section 15, Republic Act No. 6770 otherwise known as the Ombudsman Act of
1989)

Power of the Ombudsman to investigate cases cognizable by the

Sandiganbayan and the Regular Courts

The power to investigate and to prosecute granted by law to the Ombudsman is plenary
and unqualified. It pertains to any act or omission of any public officer or employee
when such act or omission appears to be illegal, unjust, improper or inefficient. The
law (RA No. 6770) does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the clause
“any illegal act or omission of any public official” is broad enough to embrace any crime
committed by a public officer or employee. The reference made by RA 6770 to cases
cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4)
granting the Special Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be
construed as confining the scope of the investigatory and prosecutory power of the
Ombudsman to such cases. Moreover, the jurisdiction of the Office of the Ombudsman
should not be equated with the limited authority of the Special Prosecutor under
Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of
the Office of the Ombudsman and may only act under the supervision and control and
upon authority of the Ombudsman. Its power to conduct preliminary investigation and
to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan.
[George Uy v. Hon. Sandiganbayan et al., G.R. Nos. 105965-70, March 20,
2001](underscoring supplied)

Power of the Ombudsman to take over the investigation over cases cognizable
by the Sandiganbayan

Section 15 (1) of Republic Act No. 6770 gives the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan and authorizes him to take over, at any stage,
from any investigatory agency, the investigation of such cases. This power to take over
a case at any time is not given to other investigative bodies. All this means is that the
power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is not
co-equal with other investigative bodies, such as the DOJ. The Ombudsman can
delegate the power but the delegate cannot claim equal power. Clearly, therefore, while
the DOJ has general jurisdiction to conduct preliminary investigation of cases involving
violations of the Revised Penal Code, this general jurisdiction cannot diminish the
plenary power and primary jurisdiction of the Ombudsman to investigate complaints
specifically directed against public officers and employees. [Department of Justice, et
al. v. Hon. Liwag, G.R. No. 149311, February 11, 2005]

Jurisdiction of the Ombudsman

Over cases cognizable by the Sandiganbayan:

The Office of the Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan and in relation thereto, the power to conduct preliminary investigation
and prosecute criminal cases within the jurisdiction of the Sandiganbayan. [Sections
15 (1) and 11, paragraph 4 (a), RA No. 6770]

To settle jurisdictional issues with the Department of Justice (DOJ) with regard to
Sandiganbayan cases, the DOJ and the Ombudsman entered into a Memorandum of
Agreement on March 29, 2012 whereby it was agreed that for cases cognizable by the
Sandiganbayan, the Ombudsman has the primary jurisdiction in the conduct of
preliminary investigation and inquest proceedings. Complaints received by the
prosecutors of DOJ that are cognizable by the Sandiganbayan shall be referred to the
OMB. [I(A) OMB-DOJ MOA of March 29, 2012]

Inquest for crimes committed outside NCR may be referred to the provincial/city
prosecutors who are authorized to approve and file the Information before the
respective Clerks of Court of the Regional Trial Courts pursuant to OMB Administrative
Order No. 11-94. (I paragraph 6, OMB-DOJ MOA of March 29, 2012)

Over cases cognizable by regular courts:

It likewise has jurisdiction over criminal cases committed by public officers and
employees. [Section 15 (1), RA No. 6770]

The Ombudsman has concurrent jurisdiction with the DOJ in the investigation and
prosecution of cases involving public officers and employees that are outside the
exclusive jurisdiction of the Sandiganbayan such as violation of RA 3019, as amended;
RA 1379, as amended; RA 6713; Revised Penal Code, Title VII, Chapter II, section 2;
RA 7080, as amended, and for such other offenses committed by public officers and
employees in relation to office. (Section 1, Rule II Ombudsman Administrative Order
No. 7 (Rules of Procedure of the Office of the Ombudsman)

In accordance with the OMB-DOJ MOA, the office where the complaint is filed shall
acquire jurisdiction over the case. OMB may refer to the prosecutors of the DOJ any
complaint filed before it. (I (A) paragraph 3, OMB-DOJ MOA of March 29, 2012)

An order of reinvestigation for cases where preliminary investigation was conducted by

the OMB but were referred to DOJ for prosecution shall be undertaken by the OMB. The
prosecution of these cases shall be under the full control of the DOJ prosecutor. In case
of reinvestigation, the same should be referred to the OMB for disposition/resolution. (I
(A) paragraph 5, OMB-DOJ MOA of March 29, 2012)

Concurrent jurisdiction of the Office of the Ombudsman and the Department of

Justice:

Citing the case of Honasan II v. The Panel of Investigating Prosecutors of the

Department of Justice, the authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However, the Ombudsman, in
the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan,
may take over, at any stage, from any investigating agency of the government, the
investigation of such cases. In fact, to resolve the issue of jurisdiction, the two bodies
came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their
respective prosecutors in the conduct of their investigations. Even in Sections 2 and 4,
Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation,
effective December 1, 2000, the investigating prosecutor is tasked to forward the
record of the case to the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. [Decin v. Tayco, G.R.
No. 149991, February 14, 2007]

Over administrative cases:

The Ombudsman likewise has authority to investigate and prosecute public officers and
employees that are administratively liable. (Section 19, RA No. 6770)

Ombudsman’s jurisdiction over local elective officials

The Constitution has named the Ombudsman and his Deputies as the protectors of the
people who shall act promptly on complaints filed in any form or manner against public
officials or employees of the government. To fulfill this mandate, R.A. No. 6770, or the
Ombudsman Act of 1989, was enacted, giving the Ombudsman or his Deputies
jurisdiction over complaints on all kinds of malfeasance, misfeasance and non-feasance
against officers or employees of the government, or any subdivision, agency or
instrumentality therefor, including government-owned or controlled corporations, and
the disciplinary authority over all elective and appointive officials, except those who
may be removed only by impeachment or over members of Congress and the Judiciary.
On the other hand, under R.A. No. 7160 or the Local Government Code, the
Sangguniang Panlungsod or Sangguniang Bayan has disciplinary authority over any
elective barangay official. Without a doubt, the Office of the Ombudsman has
concurrent jurisdiction with the Quezon City Council over administrative cases against
elective officials such as petitioner. [Laxina, Sr. v. Office of the Ombudsman, et al.,
G.R. No. 153155, September 30, 2005]

Decisions of the Office of the Ombudsman must be raised to the Court of

Appeals via Rule 43 of the Rules of Court

Under the present Rule 45, appeals may be brought through a petition for review on
certiorari but only from judgments and final orders of the courts enumerated in Section
1 thereof. Appeals from judgments and final orders of quasi-judicial agencies are now
required to be brought to the Court of Appeals on a verified petition for review, under
the requirements and conditions in Rule 43 which was precisely formulated and adopted
to provide for a uniform rule of appellate procedure for quasi-judicial agencies. Section
27 of Republic Act No. 6770 cannot validly authorize an appeal to the Supreme Court
from decisions of the Office of the Ombudsman in administrative disciplinary cases. It
consequently violates the proscription in Section 30, Article VI of the Constitution
against a law which increases the appellate jurisdiction of the Supreme Court. As a
consequence of its ratiocination that Section 27 of Republic Act No. 6770 should be
struck down as unconstitutional, and in line with the regulatory philosophy adopted in
appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure,
appeals from decisions of the Office of the Ombudsman in administrative disciplinary
cases should be taken to the Court of Appeals under the provisions of Rule 43.

Direct appeal to the Supreme Court allowed only in cases of grave abuse of
discretion

The Supreme Court qualified Fabian v. Desierto, where it was declared that Section 27
is unconstitutional since it expanded the Supreme Court's jurisdiction, without its advice
and consent, in violation of Article VI, Section 30 of the Constitution. Hence, all appeals
from decisions of the Ombudsman in administrative disciplinary cases may be taken to
the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure. True, the law
is silent on the remedy of an aggrieved party in case the Ombudsman found sufficient
cause to indict him in criminal or non-administrative cases. The Court cannot supply
such deficiency if none has been provided in the law. It has held that the right to appeal
is a mere statutory privilege and may be exercised only in the manner prescribed by,
and in accordance with, the provisions of law. Hence, there must be a law expressly
granting such privilege. As ruled in Fabian, the aggrieved party is given the right to
appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved
by orders and decisions of the Ombudsman in criminal cases, like finding probable
cause to indict accused persons. However, an aggrieved party is not without recourse
where the finding of the Ombudsman as to the existence of probable cause is tainted
with grave abuse of discretion, amounting to lack or excess of jurisdiction. An aggrieved
party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure. [Tirol v. Hon. Sandiganbayan Justices Cipriano A. Del Rosario et al.,
G.R. No. 135913, November 4, 1999]

Cases Cognizable by the Sandiganbayan:

1. Violations of RA 3019 (Anti-graft and Corrupt Practices Law);

2. RA 1379 (Forfeiture of Illegally Acquired Wealth);
3. Crimes by public officers or employees embraced in Ch. II, Sec.2 Title VII, Bk. II of
the RPC (Crimes committed by Public Officers) namely:

a. Direct Bribery under Art. 210 as amended by BP 871, May 29, 1985;

b. Indirect Bribery under Art. 211 as amended by BP 871, May 29, 1985;
c. Qualified Bribery under Art. 211-A as amended by RA 7659, Dec. 13, 1993;
d. Corruption of public officials under Art. 212 where one or more of the accused are
officials occupying the following positions in the government whether in a permanent,
acting or interim capacity, at the time of the commission of the offense:

4. Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade 27 and higher, of the Compensation and Position
Classification Act of 1989 Republic Act No. 6758) specifically including:

a. Provincial governors, vice-governors, members of the sangguniang panlalawigan,

provincial treasurers, assessors, engineers and other provincial department heads;
b. City mayors, vice-mayors, members of the sangguniang panglungsod, city
treasurers, assessors, engineers and other department heads;
c. Officials of the diplomatic service occupying the position of consul and higher;
d. Philippine Army and Air force colonels, naval captains and all officers of higher
rank;
e. Officers of the PNP while occupying the position of Provincial Director and those
holding the rank of Senior Superintendent or higher;
f. City and provincial prosecutors and their assistants; officials and the prosecutors in
the Office of the Ombudsman and special prosecutor
g. President, directors or trustees or managers of government owned or controlled
corporations, state universities or educational institutions or foundations;

5. Members of Congress and Officials thereof classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
6. Members of the Judiciary without prejudice to the provision of the Constitution;
7. Chairmen and members of Constitutional Commissions, without prejudice to the
provision of the Constitution;
8. All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act of 1989.
9. Other offenses or felonies whether simple or complexed with other crimes
committed in relation to their office by the public officials and employees mentioned
above;
10. Civil and Criminal Cases filed pursuant to and in connection with EO 1, 2, 14 &
14-A issued in 1986.
11. OTHERS provided the accused belongs to SG 27 or higher:

a. Violation of RA 6713 - Code of Conduct and Ethical Standards

b. Violation of RA 7080 - THE PLUNDER LAW
c. Violation of RA 7659 - The Heinous Crime Law
d. RA 9160 - Violation of The Anti-Money Laundering Law when committed by a
public officer.
e. PD 46 referred to as the gift-giving decree which makes it punishable for any
official or employee to receive directly or indirectly and for the private person to give or
offer to give any gift, present or other valuable thing on any occasion including
Christmas, when such gift, present or valuable thing is given by reason of his official
position, regardless of whether or not the same is for past favors or the giver hopes or
expects to receive a favor or better treatment in the future from the public official or
employee concerned in the discharge of his official functions. Included within the
prohibition is the throwing of parties or entertainment in honor of the official or
employee or his immediate relatives.
f. PD 749 which grants immunity from prosecution to any person who voluntarily
gives information about any violation of Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the Customs and Tariff Code and other provisions of
the said Codes penalizing abuse or dishonesty on the part of the public officials
concerned and other laws, rules and regulations penalizing graft, corruption and other
forms of official abuse and who willingly testifies against the public official or employee
subject to certain conditions.

(Section 4, PD 1606, as amended by RA No. 8249)

Administrative Cases cognizable by the Ombudsman:

An administrative complaint may be filed for acts and omissions which are:

a. contrary to law or regulations;

b. unreasonable, unfair, oppressive or discriminatory;
c. inconsistent with the general course of an agency’s functions though in accordance
with law;
d. based on a mistake of law or an arbitrary ascertainment of facts;
e. in the exercise of discretionary powers but for an improper purpose;
f. otherwise irregular, immoral or devoid of justification;
g. due to any delay or refusal to comply with the referral or directive of the
Ombudsman or any of his deputies against the officer or employee to whom it was
addressed; and
h. such other grounds provided for under E.O. 292 and other applicable laws.
(Section 1, Rule III Ombudsman Administrative Order No. 7 as amended by
Administrative Order No. 17, dated September 7, 2003.)

Who are subject to the disciplining authority of the Ombudsman:

All public officers, elective and appointive, of the government, its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local governments,
GOCCs and their subsidiaries are subject to the disciplining authority of the Office of the
Ombudsman except those who are Members of Congress, the Judiciary, and officials
removable only by impeachment. However, for purposes of filing a verified complaint
for impeachment, the said exempted officials may be investigated upon by the
Ombudsman for any serious misconduct in office. (Section 2, Rule III Ombudsman
Administrative Order No. 7)

Rules of Procedure in Criminal Cases cognizable by the Sandiganbayan and

Regular Courts:

1. The complaint shall state the address of the respondent and shall be accompanied
by the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in such manner as there are
respondents, plus 2 copies for the official file. The affidavits shall be subscribed and
sworn to before any prosecutor, or government official authorized to administer oath,
or in their absence or unavailability, before a notary public, each of whom must certify
that he is satisfied that they voluntarily executed and understood their affidavits. (
Section 3, Rule 112 Rules on Criminal Procedure)
2. If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaints.

3. After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondents to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after service
of the counter-affidavits.

4. If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.

5. No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a
motion for a bill of particulars be entertained. If respondents desires any matter in the
complainant's affidavit to be clarified, the particularization thereof may be done at the
time of clarificatory questioning in the manner provided in paragraph (f) of this section.

6. If the respondents cannot be served with the order mentioned in paragraph 6

hereof, or having been served, does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of the evidence on the record.

7. If, after the filing of the requisite affidavits and their supporting evidences, there
are facts material to the case which the investigating officer may need to be clarified
on, he may conduct a clarificatory hearing during which the parties shall be afforded
the opportunity to be present but without the right to examine or cross-examine the
witness being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party shall be reduced
into writing and served on the witness concerned who shall be required to answer the
same in writing and under oath.

8. Upon the termination of the preliminary investigation, the investigating officer shall
forward the records of the case together with his resolution to the designated
authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written
authority or approval of the Ombudsman in cases falling within the jurisdiction of the
Sandiganbayan, or of the proper Deputy Ombudsman in all other cases. (Section 1,
Rule II Ombudsman Administrative Order No. 7 or the Rules of Procedure of
the Office of the Ombudsman)

The Ombudsman will then take cognizance of the case and determine probable cause.
Thereafter it will issue a resolution. The parties shall be served with a copy of the
resolution as finally approved by the Ombudsman or by the proper Deputy
Ombudsman. (Section 6, Rule II Ombudsman Administrative Order No. 7)

The losing party may file only one motion for reconsideration or reinvestigation within 5
days from notice with the Office of the Ombudsman or the proper Deputy Ombudsman
as the case may be, with leave of court for those cases where information has already
been filed in court. Note that the filing of the motion for reconsideration/reinvestigation
shall not bar the filing of the corresponding information in Court on the basis of the
finding of probable cause in the resolution subject of the motion. (Section 7, Rule II
Ombudsman Administrative Order No. 7 as amended by Administrative Order
No. 15 dated February 16, 2000)

Rules of Procedure in Administrative Cases:

An administrative case may be initiated by a written complaint under oath accompanied

by affidavits of witnesses and other evidence in support of the charge. Such complaint
shall be accompanied by a Certificate of Non- Forum Shopping duly subscribed and
sworn to by the complainant or his counsel. An administrative proceeding may also be
ordered by the Ombudsman or the respective Deputy Ombudsman on his initiative or
on the basis of a complaint originally filed as a criminal action or a grievance complaint
or request for assistance. (Section 3, Rule III Ombudsman Administrative Order
No. 7)

Upon receipt of the complaint, the same shall be evaluated to determine whether the
same may be:

a. dismissed outright for any of the grounds stated under Section 20 of RA 6770,
provided, however, that the dismissal thereof is not mandatory and shall be
discretionary on the part of the Ombudsman or the Deputy Ombudsman concerned;

b. treated as a grievance/request for assistance which may be referred to the Public

Assistance Bureau, this Office, for appropriate action under Section 2, Rule IV of this
Rules;

c. referred to other disciplinary authorities under paragraph 2, Section 23, RA 6770

for the taking of appropriate administrative proceedings;

d. referred to the appropriate office/agency or official for the conduct of further fact-
finding investigation; or

e. docketed as an administrative case for the purpose of administrative adjudication

by the Office of the Ombudsman. (Section 4, Rule III Ombudsman Administrative
Order No. 7)

If the complaint is docketed as an administrative case, the respondent shall be

furnished with a copy of the affidavits and other evidence submitted by the
complainant, and shall be ordered to file his counter-affidavits and other evidence in
support of his defense, within ten (10) days from receipt thereof, together with proof of
service of the same on the complainant who may file his reply- affidavit within ten (10)
days from receipt of the counter-affidavit of the respondent; (Section 5, Rule III
Ombudsman Administrative Order No. 7)

If the hearing officer finds no sufficient cause to warrant further proceedings on the
basis of the affidavits and other evidence submitted by the parties, the complaint may
be dismissed.

Otherwise, he shall issue an Order (or Orders) for any of the following purposes:

1. To direct the parties to file, within ten (10) days from receipt of the Order, their
respective verified position papers. The position papers shall contain only those
charges, defenses and other claims contained in the affidavits and pleadings filed by the
parties. Any additional relevant affidavits and/or documentary evidence may be
attached by the parties to their position papers. On the basis of the position papers,
affidavits and other pleadings filed, the Hearing Officer may consider the case
submitted for resolution.

2. If the Hearing Officer decides not to consider the case submitted for resolution
after the filing of the position papers, affidavits and pleadings, to conduct a clarificatory
hearing regarding facts material to the case as appearing in the respective position
papers, affidavits and pleadings filed by the parties. At this stage, he may, at his
discretion and for the purpose of determining whether there is a need for a formal trial
or hearing, ask clarificatory questions to further elicit facts or information;

3. In the conduct of clarificatory hearings, the parties shall be afforded the

opportunity to be present but without the right to examine or crossexamine the
party/witness being questioned. The parties may be allowed to raise clarificatory
questions and elicit answers form the opposing party/witness, which shall be coursed
through the Hearing Officer who shall determine whether or not the proposed questions
are necessary and relevant. In such cases, the Hearing Officer shall ask the question in
such manner and phrasing as he may deem appropriate.

4. If the Hearing Officer finds no necessity for further proceedings on the basis of the
clarificatory hearings, affidavits, pleadings and position papers filed by the parties, he
shall issue an Order declaring the case submitted for resolution. The Hearing Officer
may also require the parties to simultaneously submit, within ten (10) days from
receipt of the Order, their Reply Position Papers. The parties, if new affidavits and/or
exhibits are attached to the other party’s Position Paper, may submit only rebutting
evidence with their Reply Position Papers.

5. If the Hearing Officer finds the need to conduct a formal investigation on the basis
of the clarificatory hearings, pleadings, affidavits and the position papers filed by the
parties, an Order shall be issued for the purpose. In the same Order, the parties shall
be required to file within ten (10) days from receipt of the Order their respective pre-
trial briefs which shall contain, among others, the nature of the charge(s) and defenses,
proposed stipulation of facts, a definition of the issues, identification and marking of
exhibits, limitation of witnesses, and such other matters as would expedite the
proceedings. The parties are not allowed to introduce matters in the pre-trial briefs
which are not covered by the position papers, affidavits and pleadings filed and served
prior to issuance of the Order directing the conduct of a formal investigation.

6. The conduct of formal proceedings by the Office of the Ombudsman in

administrative cases shall be non-litigious in nature. Subject to the requirements of due
process in administrative cases, the technicalities of law, procedure and evidence shall
not strictly apply thereto. The Hearing Officer may avail himself of all reasonable means
to ascertain speedily the facts of the case. He shall take full control of the proceedings,
with proper regard to the right of the parties to due process, and shall limit the
presentation of evidence to matters relevant to the issue(s) before him and necessary
for a just and speedy disposition of the case.

7. In the conduct of formal administrative investigation, the Hearing Officer shall set
the case for continuous trial. The parties shall be notified at least ten (10) days before
the date of the initial hearing. Failure of any or both of the parties to appear at the
scheduled hearing(s) is not necessarily a cause for the dismissal of the complaint. A
party who appears may be allowed to present his evidence in the absence of the
adverse party who was duly notified of the hearing; however, if the absent party is able
to show that there is a valid cause for his absence, he shall be afforded the opportunity
to cross-examine the witness (es) presented during his absence. In case of two (2)
successive unjustified non-appearances of any party in the proceedings, it shall be the
option of the party who is present to submit the case for resolution on the basis of the
records of the case and the evidence so far presented;

8. Only witnesses whose affidavits have been submitted by the parties and served on
the adverse party prior to the issuance of the Order directing the conduct of a formal
investigation may be allowed to testify at the hearing. The affidavit of any witness shall
constitute his direct testimony, subject to cross-examination, re-direct examination and
re-cross examination. Unless the testimony of the witness involves newly discovered
evidence, the Hearing Officer may not allow the presentation of witnesses whose
affidavits have not been filed by the parties and served on the adverse party prior to
the issuance of the Order to conduct formal investigation. If a witness whose testimony
involves newly discovered evidence is allowed to testify, the adverse party shall have
the right to cross-examine such witness and to submit rebuttal evidence, if any,
relevant to said newly discovered evidence;

9. The parties shall be allowed the assistance of counsel and the right to the
production of evidence thru the compulsory process of subpoena and subpoena duces
tecum; ( Section 5, Rule III Ombudsman Administrative Order No. 7)

Please note that the following are prohibited pleadings to wit:

1. Motion to dismiss, although any ground justifying the dismissal of the case may
be discussed in the counter-affidavit/pleadings of the party;

2. Motion for bill of particulars; and

3. Dilatory motions including, but not limited to, motions for extension of time, for
postponement, second motions for reconsideration and/or re-investigation.

Said pleadings shall be stricken off the records of the case. (Section 5, Rule III
Ombudsman Administrative Order No. 7)

Not later than thirty (30) days after the case is declared submitted for resolution, the
Hearing Officer shall submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed decision shall be
reviewed by the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned.
(Section 6, Rule III Ombudsman Administrative Order No. 7)

With respect to low ranking public officials, the Deputy Ombudsman concerned shall be
the approving authority. Upon approval, copies thereof shall be served upon the parties
and the head of the office or agency of which the respondent is an official or employee
for his information and compliance with the appropriate directive contained therein.
(Section 6, Rule III Ombudsman Administrative Order No. 7)
The decision shall be final, executory and unappealable in cases wherein the respondent
is absolved of charge and in cases of conviction where the penalty imposed is public
censure or reprimand, suspension of not more than one month, or a fine equivalent to
one month salary. In all other cases, the decision may be appealed to the Court of
Appeals on a verified petition for review under the requirements and conditions set
forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the
written Notice of the Decision or Order denying the Motion for Reconsideration.
(Section 7, Rule III Ombudsman Administrative Order No. 7)

An appeal shall not stop the decision from being executory. (Section 7, Rule III
Ombudsman Administrative Order No. 7)

For officials that have been convicted and imposed with the penalty of suspension or
removal that have appealed and have won such appeals, they shall be considered as
having been preventively suspended and shall be paid the salary and emoluments that
he did not receive by reason of the suspension or removal. (Section 7, Rule III
Ombudsman Administrative Order No. 7)

A motion for reconsideration or reinvestigation may be filed within 10 days from receipt
of the decision or order by the party based on any of the following grounds:

a. New evidence had been discovered which materially affects the order, directive or
decision;
b. Grave errors of facts or laws or serious irregularities have been committed
prejudicial to the interest of the movant.

Only one motion for reconsideration/reinvestigation is allowed and the same must be
resolved by the Hearing Officer within 5 days from the date of submission for
resolution. (Section 8, Rule III Ombudsman Administrative Order No. 7)

Rules on Mediation in the Office of the Ombudsman

The Office of the Ombudsman may conduct mediation and conciliation proceedings on
the following cases:

a. Complaints, grievances, or requests for assistance seeking redress or relief

concerning an act or omission of a public official or employee, office, or agency alleged
to be unreasonable, unfair, oppressive, illegal, unjust, discriminatory, improper or
inefficient, and which does not necessarily amount to a criminal or administrative
offense, as defined under Section 1, Rule IV, Administrative Order No. 7 of 1990 as
amended, of the Office of the Ombudsman.
b. Light administrative offenses where the penalty imposed by pertinent laws and
Civil Service Rules is reprimand, such as:

1. Borrowing of Money by a Superior Officer from a Subordinate.

2. Willful Failure to Pay Just Debt.
3. Discourtesy in the Course of Official Duties.

c. The following cases which are covered by the Revised Rules on Summary
Procedure:

1. Violation of traffic rules and regulations.

2. Violation of rental law.
3. Violation of municipal and city ordinances.
4. Violation of Batasang Pambansa Blg. 22 (Bouncing Checks Law)
5. All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six (6) months or a fine not exceeding one
thousand pesos (P1,000.00), or both, irrespective of other imposable penalties,
accessory or otherwise, or of civil liability arising therefrom.

d. Cases which may be cognizable at the first instance by the Lupong Tagapamayapa
under Section 408, Chapter VII of the Local Government Code (Republic Act No. 7610).

e. Criminal negligence resulting in damage to property.

f. Such other offenses which may be brought by the parties for mediation, except
those which by law may not be compromised.

During the mediation proceedings, only the civil aspect of the complaint may be
compromised although the criminal and administrative aspect may be discussed to find
out whether or not the complaint was filed due to misunderstanding or misappreciation
of facts. (Section 5, Administrative Order No. 20 series of 2008)

Related Reference(s)

 George Uy vs Sandiganbayan, Ombudsman & Roger C. Berbano, Sr

G.R. Nos. 105965-70 | 1999-08-09
 Victoriano Tirol vs Sandiganbayan Justices
G.R. No. 135913 | 1999-11-04
 George Uy vs Sandiganbayan
G.R. Nos. 105965-70 | 2001-03-20
  Department of Justice vs. Liwag
G.R. No. 149311 | 2005-02-11
 S. Decin vs. SPO1 M. Tayco, et al.
G.R. No. 149991 | 2007-02-14

SendDownload

Replevin (Rule 60) (Provisional Remedies)

Replevin is a provisional remedy seeking to recover possession of personal property
during the pendency of any action. [See Section 1, Rule 60 of the Rules of Court]

Replevin, broadly understood, is both a form of principal remedy and of a provisional

relief. It may refer either to the action itself, i.e., to regain the possession of personal
chattels being wrongfully detained from the plaintiff by another, or to the provisional
remedy that would allow the plaintiff to retain the thing during the pendency of the
action and hold it pendente lite. The action is primarily possessory in nature and
generally determines nothing more than the right of possession. Replevin is so usually
described as a mixed action, being partly in rem and partly in personam-in rem insofar
as the recovery of specific property is concerned, and in personam as regards to
damages involved. As an "action in rem," the gist of the replevin action is the right of
the plaintiff to obtain possession of specific personal property by reason of his being the
owner or of his having a special interest therein. Consequently, the person in
possession of the property sought to be replevied is ordinarily the proper and only
necessary party defendant, and the plaintiff is not required to so join as defendants
other persons claiming a right on the property but not in possession thereof. [B.A.
Finance v. Court of Appeals, G.R. No. 102998, July 5, 1996]

Replevin is an action whereby the owner or person entitled to repossession of goods or

chattels may recover those goods or chattels from one who has wrongfully distrained or
taken, or who wrongfully detains such goods or chattels. It is designed to permit one
having right to possession to recover property in specie from one who has wrongfully
taken or detained the property. The term may refer either to the action itself, for the
recovery of personalty, or to the provisional remedy traditionally associated with it, by
which possession of the property may be obtained by the plaintiff and retained during
the pendency of the action [see Smart Communications, Inc. vs. Astorga, G.R. No.
148132 and G.R. No. 151079 and G.R. No. 151372, January 28, 2008]

When to file for the remedy

A party praying for the recovery of possession of personal property may apply for an
order for the delivery of such property to him:

(a) At the commencement of the action or

(b) At any time before answer. [Section 1, Rule 60, Rules of Court]

Facts that must be alleged in the application

The plaintiff/applicant must show, by his own affidavit or that of some other person
who personally knows the facts:

(i) That the applicant is the owner of the property claimed, particularly describing it, or
is entitled to the possession thereof;

(ii) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief ;

(iii) The actual market value of the property.

[Section 2, Rule 60 Rules of Court]

Rule 60 of the Rules of Court allows an application for the immediate possession of the
property but the plaintiff must show that he has a good legal basis, i.e., a clear title
thereto, for seeking such interim possession. [B.A. Finance v. Court of Appeals, G.R.
No. 102998, July 5, 1996]

Property which cannot be the subject of replevin

[I]t must be shown that the subject property has not been (a) ?distrained, (b) taken for
a tax assessment or a fine pursuant to law,(c) seized under a writ of execution or
preliminary attachment, or (d) placed under custodia legis. [Merlita Dapadap Vda.
De Danao v. Judge Manuel Ginete, A.M. No. MTJ–03–1474. January 21, 2003;
Section 2, Rule 60 Rules of Court]
Thus, if the property had already been seized by the Bureau of Customs and had
already been set for public auction, then the provisional remedy of replevin cannot be
used to recover the said property. The forfeiture of seized goods in the Bureau of
Customs is a proceeding against the goods and not against the owner. It is in the
nature of a proceeding in rem, i.e., directed against the res or imported articles and
entails a determination of the legality of their importation. In this proceeding, it is, in
legal contemplation, the property itself which commits the violation and is treated as
the offender, without reference whatsoever to the character or conduct of the owner.
[Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No. 166901, October 27,
2006]

Also, the property subject of the application of for a writ of replevin are forest products
which were taken in violation of forestry laws, and have already been seized by the
Department of Environment and Natural Resources (DENR), then they can no longer be
the subject of a writ of replevin. Since there was a violation of the Revised Forestry
Code and the seizure was in accordance with law, in our view the [properties seized]
were validly deemed in custodia legis. They could not be subject to an action for
replevin. For it is property lawfully taken by virtue of legal process and considered in
the custody of the law, and not otherwise. [Calub v. Court of Appeals, G.R. No.
115634. April 27, 2000; Dagudag v. Paderanga, A.M. No. RTJ-06-2017, June
19, 2008]

As for properties subject of litigation, they are not by that fact alone in custodia legis,
and thus cannot always be outside the reach of a writ of replevin. It is true that
property held as evidence in a criminal case cannot be replevied. But the rule applies
only where the property is lawfully held, that is, seized in accordance with the rule
against warrantless searches and seizures or its accepted exceptions. Only when
property is lawfully taken by virtue of legal process is it considered in the custody of the
law, and not otherwise. [Superlines v. Philippine National Construction Company,
G.R. No. 169596, March 28, 2007]

Determination of jurisdiction by the court not based on value of the property

to be seized

Moreover, the jurisdiction of a court is determined by the amount of the claim alleged in
the complaint, not by the value of the chattel seized in ancillary proceedings.

Petitioners argue that the value of the property seized is in excess of P200,000 and
thus outside the jurisdiction of the Metropolitan Trial Court. This argument has no legal
and factual basis. The fundamental claim in the main action against petitioners, as
shown in respondent bank's Complaint, is the collection of the sum of P190,635.90, an
amount that is clearly within the jurisdiction of the MTC. Although the value of the
vehicle seized pursuant to the Writ of Replevin may have exceeded P200,000, that fact
does not deprive the trial court of its jurisdiction over the case. [see Fernandez vs
The International Corporate Bank (now Union Bank), G.R. No. 131283, October
7, 1999]

Territorial enforcement of the Writ of Replevin

Petitioners argue that the Writ of Replevin issued by the Metropolitan Trial Court (MTC)
of Pasay could be enforced only within the confines of Pasay City. Under the Resolution
of the Supreme Court en banc, dated January 11, 1983, providing for the interim rules
and guidelines relative to the implementation of BP 129, a writ of replevin like the one
issued in the present case may be served anywhere in the Philippines. Specifically, the
said Resolution states:

"3. Writs and processes.

(a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction issued by a regional trial court may be enforced in any part of the region.

(b) All other processes, whether issued by a regional trial court or a metropolitan trial
court, municipal trial court or municipal circuit trial court may be served anywhere in
the Philippines, and, in the last three cases, without a certification by the judge of the
regional trial court."

Thus, the Writ of Replevin issued by Judge Paas, which obviously does not fall under
item "a" of the above-cited Rule, may be validly enforced anywhere in the
Philippines. [see Fernandez vs The International Corporate Bank (now Union
Bank), G.R. No. 131283, October 7, 1999]

Requirement of a Bond

Along with the application stating the above-mentioned facts, the applicant must also
give a bond, executed to the adverse party in double the value of the property as
stated in the affidavit aforementioned.
This bond is for: (a) the return of the property to the adverse party if such return be
adjudged, and for (b) the payment to the adverse party of such sum as he may recover
from the applicant in the action. [Section 2, Rule 60, Rules of Court]

A replevin bond is simply intended to indemnify the defendant against any loss that he
may suffer by being compelled to surrender the possession of the disputed property
pending the trial of the action. He cannot recover on the bond as for a reconversion
when he has failed to have the judgment entered for the return of the property. Nor is
the surety liable for payment of the judgment for damages rendered against the
plaintiff on a counterclaim or punitive damages for fraudulent or wrongful acts
committed by the plaintiffs and unconnected with the defendant's deprivation of
possession by the plaintiff. Indeed, even where the judgment was that the defendant
was entitled to the property, but no order was made requiring the plaintiff to return it
or assessing damages in default of a return, it was declared that until judgment was
entered that the property should be restored, there could be no liability on the part of
the sureties. [Sapugay v. Court of Appeals, G.R. No. 86792, March 21, 1990]

Issuance of the Writ

Upon the filing of such affidavit and approval of the bond, the court shall issue an order
and the corresponding writ of replevin, describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to take such property into his
custody. [Section 3, Rule 60, Rules of Court]

Upon receiving such order, the sheriff must serve a copy thereof on the adverse party,
together with a copy of the application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his agent, and retain it in his
custody. If the property or any part thereof be concealed in a building or enclosure, the
sheriff must demand its delivery, and if it be not delivered, he must cause the building
or enclosure to be broken open and take the property into his possession. After the
sheriff has take possession of the property as herein provided, he must keep it in a
secure place and shall be responsible for its delivery to the party entitled thereto upon
receiving his fees and necessary expenses for taking and keeping the same. [Section
4, Rule 60, Rules of Court]

Redelivery Bond: Remedy of the Adverse Party

If the adverse party objects to the sufficiency of the applicant's bond, or of the surety
or sureties thereon, he cannot immediately require the return of the property. [Section
5, Rule 60, Rules of Court]

However, if the adverse party does not object, he may still seek to have the property
redelivered to him at any time before the delivery of the property to the applicant.

He may do this by filing a redelivery bond, which is a bond executed to the applicant,
the amount of which is double the value of the property as stated in the applicant's
affidavit for the delivery thereof to the applicant. [See Section 5, Rule 60, Rules of
Court]

If a defendant in a replevin action wishes to have the property taken by the sheriff
restored to him, he should within five days from such taking:

1. Post a counter-bond in double the value of said property, and

2. Serve plaintiff with a copy of such Counter-bond.

The five-day period is mandatory. Conformably, a defendant in a replevin suit may

demand the return of possession of the property replevined by filing a redelivery bond
executed to the plaintiff in double the value of the property as stated in the plaintiff’s
affidavit within the period specified in Sections 5 and 6 of Rule 60. [Spouses Bautista
vs. Sula, A.M. No. P-04-1920, August 17, 2007]

Disposition of the Property

If within five (5) days after the taking of the property by the sheriff, the adverse party
does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if
the adverse party so objects and the court affirms its approval of the applicant's bond
or approves a new bond, or if the adverse party requires the return of the property but
his bond is objected to and found insufficient and he does not forthwith file an approved
bond, the property shall be delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to the adverse party. [Section
6, Rule 60, Rules of Court]
And, ten (10) days after the taking of the property, the sheriff must file the order, with
his proceedings indorsed thereon, with the court. [Section 8, Rule 60, Rules of
Court]

Third Party Claim

If the property taken is claimed by any person other than the party against whom the
writ of replevin had been issued or his agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof, stating the grounds therefor, and serves
such affidavit upon the sheriff while the latter has possession of the property and a
copy thereof upon the applicant, the sheriff shall not be bound to keep the property
under replevin or deliver it to the applicant unless the applicant or his agent, on
demand of said sheriff, shall file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the property under replevin as
provided in section 2 hereof. In case of disagreement as to such value, the court shall
determine the same. No claim for damages for the taking or keeping, of the property
may be enforced against the bond unless the action therefor is filed within one hundred
twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages, for the taking or keeping of such property,
to any such third-party claimant if such bond shall be filed. Nothing herein contained
shall prevent such claimant or any third person from vindicating his claim to the
property, or prevent the applicant from claiming damages against a third-party
claimant who filed a frivolous or plainly spurious claim, in the same or a separate
action.

When the writ of replevin is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose. [Section 7, Rule 60, Rules of Court]

Final Judgment
After trial of the issues the court shall determine who has the right of possession to and
the value of the property and shall render judgment in the alternative for the delivery
thereof to the party entitled to the same, or for its value in case delivery cannot be
made, and also for such damages as either party may prove, with costs. [Section 9,
Rule 60, Rules of Court]

The amount, if any, to be awarded to any party upon any bond filed in accordance with
the provisions of Rule 60, shall be claimed, ascertained, and granted under the same
procedure as prescribed in Section 20 of Rule 57. [Section 10, Rule 60, Rules of
Court]

Section 20 of Rule 57 states:

Section 20. Claim for damages on account of improper, irregular or excessive

attachment. - An application for damages on account of improper, irregular or
excessive attachment must be filed before the trial or before 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. [Section 20, Rule
57, Rules of Court]

Effect of dismissal of the case

The dismissal of the replevin case for failure to prosecute results in the restoration of
the parties’ status prior to litigation, as if no complaint was filed at all. To let the writ of
seizure stand after the dismissal of the complaint would be adjudging that one party is
a prevailing party, when precisely no decision on the merits had been rendered.
Accordingly, the parties must be reverted to their status quo ante. The replievied
property must thus be restored to the person having possession thereof prior to the
filing of the case, as if no case was filed at all. [See Advent Capital Corporation vs.
Young, G.R. No. 183018, August 3, 2011]

Recovery from separated employee of car issued under a company vehicle plan

The RTC rightfully assumed jurisdiction over the [replevin] suit xx SMART's demand for
payment of the market value of the car or, in the alternative, the surrender of the car,
is not a labor, but a civil, dispute. It involves the relationship of debtor and creditor
rather than employee-employer relations. As such, the dispute falls within the
jurisdiction of the regular courts.
xxx
The question of whether or not a party has the right of possession over the property
involved and if so, whether or not the adverse party has wrongfully taken and detained
said property as to require its return to plaintiff, is outside the pale of competence of a
labor tribunal and beyond the field of specialization of Labor Arbiters. xxx The labor
dispute [illegal dismissal] involved is not intertwined with the issue in the Replevin
Case. The respective issues raised in each forum can be resolved independently on the
other. [see Smart Communications, Inc. vs. Astorga, G.R. No. 148132 and G.R.
No. 151079 and G.R. No. 151372, January 28, 2008 citing Basaya, Jr. vs.
Militante, G.R. No. L-75837, December 11, 1987]

Related Reference(s)

 Basaya, Jr. vs. Militante

G.R. No. L-75837 | 1987-12-11
 Marino Sapugay, et al. vs. Court of Appeals, et al.
G.R. No. 86792 | 1990-03-21
 Ba Finance Corp. vs CA, et al.
G.R. No. 102998 | 1996-07-05
 Fernandez vs The International Corporate Bank (now Union Bank)
G.R. No. 131283 | 1999-10-07
 Calub,etal. vs CA,Babalcon,& Abuganda
G.R. No. 115634 | 2000-04-27
 Asian Terminals, Inc. vs. Hon. Helen Bautista-Ricafort, et al.
G.R. No. 166901 | 2006-10-27
  Sps. Normandy & Ruth Bautista Vs. Ernesto L. Sula etc
A.M. No. P-04-1920 | 2007-08-17
 Smart Communications, Inc. vs. Regina M. Astorga
G.R. No. 148132 and G.R. No. 151079 and G.R. No. 151372 | 2008-01-28
 Rules of Court - Civil Procedure
Rules of Court | 1997-7-1
 Rules of Court - 1997 Rules of Civil Procedure
Rules of Court | 1997-07-01

2017 MyLegalWhiz ©. All rights reserved.